R. v. Theriault, 2017 ONCJ 537

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code . Please see the cover page for the full wording of the order. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 517. Order directing matters not to be published for specified period. —

(1) If the prosecutor or the accused intends to show cause under

section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (

a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (

b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Theriault , 2017 ONCJ 537 DATE: August 2, 2017 COURT FILE No.: Central East Region (Oshawa) BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL THERIAULT & CHRISTIAN THERIAULT Before Justice F. Javed Heard on July 28, 2017 Reasons released on August 2, 2017 P. Perlmutter / R. Shallow ............................................. counsel for the Crown M. Lacy / D. Negandhi ................................ counsel for the Michael Theriault D. Sarikaya (Agent for D. Butt) ……………………….. counsel for Christian Theriault

Ruling on Application to Replace Undertaking A. Introduction [ 1 ] This is a ruling on an application to replace an undertaking entered into by the defendants pursuant to s.503(2.2) and s.515(1) of the Criminal Code of Canada (Criminal Code). [ 2 ] It is helpful to briefly review the chronology of events, which informs the issue before the court, which is whether the police bail entered into by the defendants should be replaced with a judicial bail order. [ 3 ] The defendant Michael Theriault, is a police officer employed with the Toronto Police Service (TPS).

On December 28, 2016, he and his brother Christian Theriault, were involved in an altercation with Dafonte Miller. In my reasons, I will refer to the defendants with their initials as they share the same last name. The altercation resulted in MT arresting Mr. Miller near his father’s home in Whitby. It is alleged that MT was an off-duty police officer at the time of the arrest. [ 4 ] A 911 call was made to the Durham Regional Police Service (DRPS) who responded to the scene and formally arrested Mr.

Miller for the offences of Assault with a Weapon x2, Theft Under $5000, Weapons Dangerous and Possession of Cannabis. [ 5 ] The circumstances of the altercation resulted in Mr. Miller suffering serious injuries to his eye as a result of being struck with a metal pipe. [ 6 ] On May 15, 2017, an Assistant Crown Attorney in the Durham region withdrew all charges against Mr. Miller, citing that a trial was estimated to last five days and Mr. Miller had suffered “life-altering” injuries.

As such, it was not in the public interest to proceed with the prosecution. [ 7 ] Shortly thereafter, the Special Investigations Unit (SIU), which investigates the conduct of police officers, commenced an investigation into the altercation after being contacted by civil counsel retained by Mr. Miller. [ 8 ] On June 18, 2017, an information was sworn alleging that the defendants had committed the offences of Aggravated Assault contrary to s.268 of the Criminal Code , Assault with a Weapon, contrary to s267(

a) of the Criminal Code and Public Mischief, contrary to s.140 of the Criminal Code. [ 9 ] The SIU theorizes that either/both accused were responsible for the alleged assaults against Mr. Miller and misled the DRPS who investigated the matter leading to the arrest of Mr. Miller. [ 10 ] On July 18, 2017, both defendants entered into an Undertaking Given to a Peace Officer or an Officer in Charge in Form 11.1 of the Criminal Code .

This undertaking contained several conditions of release, including inter alia , a condition requiring the defendants to remain in Ontario, a curfew condition as well as a condition prohibiting the consumption of alcohol. [ 11 ] The defendants were released on a Promise to Appear with a first appearance of August 10, 2017. In advance of their first appearance, both defendants seek to replace the undertaking (police bail) and substitute a judicial bail order without terms requiring them to reside in Ontario, observe a curfew and abstain from consuming alcohol. B. The Positions of the Parties

[ 12 ] Mr. Lacy submits that the impugned terms of release were not reasonable or necessary and inconsistent with s.11(

e) of the Charter of Rights and Freedoms ( Charter ) which guarantees the right to reasonable bail. He recommended new terms of release, which he submits are reasonable in the circumstances. [ 13 ] Mr. Sarikaya on behalf of CT, adopted Mr. Lacy’s submissions and offered the same conditions of release for his client. [ 14 ] Mr. Perlmutter agrees that the residency in Ontario condition need not be imposed but submits that the other two terms involving a curfew and prohibition on alcohol consumption are both reasonable and necessary in the circumstances of this case. C.

The Police Bail [ 15 ] Section 503(2.1) empowers a peace officer or officer in charge to conditionally release a person on an undertaking in accordance with paragraph 498(1)(

b) to (

d) and subsection (2.1) of the Criminal Code . This is often referred to as a “police bail”: R v. Oliveira 2009 ONCA 219 . [ 16 ] Investigator Dean Seymour of the SIU released both defendants on an undertaking with conditions. For clarity, I will reproduce these conditions below: (

a) Remain within the Province of Ontario; (

b) Notify Investigator Dean Seymour of the SIU 48 hours in advance of any change in address, employment or occupation; (

c) Abstain from communicating directly or indirectly with a. Dafonte Miller, b. James Silverthorn (and his family members), c. Michael Hastie, d. All members of the DRPS who investigated or assisted in the investigation of the incident involving Mr. Miller on December 28, 2016, (

d) Abstain from possessing any handgun or other firearm or any other weapon as defined in the Criminal Code , (

e) Abstain from the consumption of alcohol or other intoxicating substances, (

f) Abstain from the consumption of drugs except in accordance with a medical prescription, and (

g) Remain in your residence and observe a curfew from 10:00 pm to 6:00 am daily except for purposes of employment and with the express written direction of your employer. [ 17 ] Section 503(2.1) of the Criminal Code afforded discretion to Investigator Seymour to attach certain enumerated conditions in s.503(2.1) (

a) to (

g) with a catch all term, s.503(2.1) (

h) which he considered “necessary to ensure the safety and security of any victim of or witness to the offence”. [ 18 ] The specific conditions that remain in dispute in this application are the prohibition on alcohol consumption [s.503 (2.1)(g)(i)] and a curfew from 10:00 pm to 6:00 am which Investigator Seymour deemed was necessary under s.503(2.1) (h). As I will discuss below, the curfew condition has exceptions, namely for employment and with the express written consent of an employer.

The wording of the two conditions in dispute is similar for both defendants. [ 19 ] The parties agreed that I had jurisdiction to hear the matter under s. 503(2.2) of the Criminal Code , which provides: A person who has entered into an undertaking under subsection (2.1), may, at any time before his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking and

section 515 applies, with such modifications as the circumstances require, to such a person. [ 20 ] The parties also agreed that given my jurisdictional route to hear the application, the publication ban provisions in s.517(1) of the Criminal Code apply. The parties jointly requested a publication ban and one was imposed. C. The Nature of the Application [ 21 ] There is very little jurisprudence on this type of application and in particular who bears the onus and on what issue. These issues were not litigated by the parties.

It appears that the parties are at idem about the issue but a brief discussion is helpful for context. [ 22 ] In the seminal text of the Law of Bail in Canada (3d) 2010 (Carswell), Mr. Justice Gary Trotter of the Ontario Court of Appeal noted that s.503(2.1) confers considerable discretion on the police to impose bail conditions. He stated: “[L]ike conditions that attach to bail orders made by a justice of the peace or judge, they ought to be applied with restraint, and only if they are necessary to achieve the bail purposes for which they were intended.

That is, they must not be imposed gratuitously, nor for punitive purposes”. Justice Trotter cited R. v. Keenan (1979), 57 CCC (3d) 267 (Que. C.A.) for this proposition.

[ 23 ] In discussing the review provisions, Justice Trotter said: “It is not clear from these provisions that either party may apply for an adjustment in the conditions that are available. However this must be the case. The reference to the applicability of s.515 as a whole as the circumstances require allows a justice to make an appropriate order. However, the justice’s powers are not unlimited. By restricting the focus to ss.515(1) and (2), these review provisions do not envisage that a justice may detain an accused upon application under any of these review provisions.

They merely deal with the types of release orders and the conditions of release.” [ 24 ] In this case, the parties agree that the appropriate form of release is envisaged in s.515(2)(a), namely, an undertaking with “such conditions as the justice directs”. [ 25 ] This triggers the application of s.515(4) which states that a “justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order”. Parliament goes on to enumerate certain types of conditions including s.515(4)(

f) which provides that an accused “comply with such other reasonable conditions specified in the order as the justice considers desirable”. [ 26 ] The contested issue in this application is what constitutes “reasonable conditions” which are desirable. The application is not directly a review of the discretion employed by Investigator Seymour when he crafted bail conditions, but rather more akin to a bail de novo . I say not directly because to some extent, the parties are asking me to consider the reasonableness of Investigator Seymour’s exercise of discretion.

At the same time, it is not entirely a brand new bail hearing because I cannot detain the defendants – nor am I being asked to do so. [ 27 ] This matters because in a bail review under s.520 of the Criminal Code , the defendants would have to show cause as to why a detention order should be vacated.

Here, there is no onus on the defendants to show cause why the police bail should be replaced with a judicial bail order under s.515 of the Criminal Code. [ 28 ] The application is closer to a contested release hearing where the onus remains with the Crown to recommend reasonable conditions that are necessary and desirable. D. The Record on this Application [ 29 ] On consent, I was asked to consider an expanded record, which did not include evidence from Inspector Seymour. Section 503(2.2) does not appear to mandate this type of evidence unlike the bail review provisions in s.520 of the Criminal Code .

That said, the record is unclear as to why Investigator Seymour chose to include the terms of release he did. This is not meant as a criticism as there is no requirement to do so but in some cases it may be important to have this information. This isn’t the case here as the Crown provided me with a fulsome record. [ 30 ] Both defendants filed a Notice of Application in Form 1 with supporting Affidavits attaching the Promise to Appear and Undertaking. Neither party called any viva voce evidence and instead relied on the material filed and submissions. [ 31 ] Mr.

Perlmutter responded with a Crown Record, which contained the following documentary evidence: (

a) a synopsis of the SIU investigation; (

b) statement of Mr. Miller to the SIU on May 8, 2017; (

c) statement of James Silverthorn to the SIU; (

d) a synopsis of the 911 call on December 28, 2016, (

e) photographs of a pipe, hood of a car with blood/tissue and Mr. Miller’s face; (

f) statement of Michael Theriault to DRPS on December 28, 2016; (

g) statement of Christian Theriault to DRPS on December 28, 2016; and (

h) statement of Mr. Miller to the SIU on April 27, 2017. [ 32 ] One issue that was not raised is the effect, if any, of the defendants agreeing to the conditions of release, failing which they would have been held for a bail hearing and brought before a justice. On the record before me, this issue does not arise because I accept that both defendants agreed to the terms on the advice of Mr. Lacy and Mr. Butt who notified Inspector Seymour that they were only agreeing to do so to avoid spending time in custody and would seek to replace the terms as soon as practicable.

In my view, there can be no real substance to an argument that the defendants agreed to the terms and were fully informed before doing so and somehow this should factor into my analysis of what is reasonable. That’s not the case here and in fairness, Mr. Perlmutter does not advance such position. E.

Analysis [ 33 ] With the above background in mind, I now turn to the issue of what are reasonable conditions of release that are desirable under s.515(4). [ 34 ] In Canadian criminal law, every accused person charged with a criminal offence is cloaked with the presumption of innocence and has the constitutional right to bail. [ 35 ] Recently, Justice Wagner on behalf of the Supreme Court of Canada in R. v. Antic, 2017 SCC 27 , commented that despite these

longstanding principles, the issue of bail is being applied inconsistently across Canada. Antic was an opportunity to address this concern and remind parties of the proper approach in addressing the issue of bail. [ 36 ] In doing so, Justice Wagner summarized the principles and guidelines that he said should be adhered to when applying the bail provisions in a contested hearing. While the application before me is not a true “contested” hearing dealing with detention or release, it is contested to the extent that the parties disagree as to what constitutes reasonable conditions of release.

In my view, Justice Wagner’s comments apply with equal force in these circumstances. [ 37 ] At para. 67 of Antic , Justice Wagner summarized the principles and guidelines as follows: (

a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail. (

b) Section 11(

e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms. (

c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1). (

d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis , at para. 23. This principle must be adhered to strictly. (

e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention. (

f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms. (

g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate. (

h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(

d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. (

i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. (

j) Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person's behaviour or to punish an accused person. (

k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud . [ 38 ] The parties agree that the Antic framework applies such that an undertaking with conditions is the least onerous and appropriate form of release but disagree as to how to apply the framework when considering bail conditions. [ 39 ] Mr. Lacy submits that the operative question should be: is the condition being sought by the Crown the least onerous and necessary restriction on liberty? [ 40 ] Mr.

Perlmutter submits that crafting reasonable bail conditions requires a more delicate balance between the restriction on liberty and the statutory factors enumerated in s.515(10) which he says should inform the crafting of reasonable conditions. [ 41 ] Section 515(10) speaks to the factors that a court must consider when considering whether the detention of an accused is necessary on the primary, secondary and tertiary grounds. The primary grounds relates to ensuring the attendance of an accused at her trial.

The secondary grounds relate to whether detention is necessary for the protection of the public and whether there is a substantial likelihood of re-offending. The tertiary grounds relates to maintaining the confidence in the administration of justice having regard to all the circumstances including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence and (iv) the potential for a lengthy term of imprisonment. [ 42 ] I agree with Mr. Perlmutter that the factors in s.515(10) should inform the analysis but in my view, they should not overwhelm the analysis because at this stage of crafting bail conditions, the question of detention and release has already been determined. The parties agree the defendants should be released. The disagreement is on what terms. In this sense, I also agree with Mr.

Lacy that the proper question is what are reasonable terms that are necessary restrictions on liberty having regard to the factors in s.515(10). [ 43 ] In my view, this approach to the issue of bail conditions is consistent with the Antic framework. Recall in Antic , Justice Wagner reminded that a more restrictive form of release cannot be imposed unless the Crown has shown it to be necessary having regard to the statutory criteria for detention. The ladder approach to the form of release necessarily contemplates the same approach to the imposition of bail terms.

A more restrictive condition of release cannot be imposed unless the Crown has shown it to be necessary having regard to

the statutory criteria for detention. The form and conditions of release are inextricably intertwined. One informs the other. [ 44 ] Within this framework, I will now go on to consider the conditions of release in dispute to determine if they are necessary in the circumstances of each defendant and the circumstances of the case, having regard to s.515(10). (

i) The residency condition [ 45 ] Counsel agree that the term requiring both defendants to remain in Ontario is not necessary to satisfy the primary grounds of ensuring their attendance in court. I agree. Both defendants have roots in the community, are gainfully employed and have families who also have roots in the community. Both have retained counsel and are engaged in the legal process. There’s nothing to suggest they will abscond as this matter makes it way through the system. The primary grounds are simply not triggered in this case. Mr.

Perlmutter agrees with this position. (ii) The curfew condition [ 46 ] Both defendants are bound by a curfew from 10:00 pm to 6:00 am with an exception for employment and “with the express written consent of your employer”. Both submit that this is an unnecessary and significant interference with their liberty, which is simply punitive. [ 47 ] Mr. Perlmutter submits that the curfew and alcohol condition work in tandem as there’s a nexus to the allegations.

His position is that it should be imposed as it addresses the secondary and tertiary grounds. [ 48 ] In my view, the curfew condition is unnecessary in the circumstances of this case and therefore unreasonable. [ 49 ] While the allegations occurred at 1:30 a.m., both defendants were at home before they got involved in the altercation. Moreover, MT was off duty at the time. He was not in uniform or on patrol. The altercation with Mr.

Miller was highly situational and there’s nothing to suggest that either defendant needs to be home in the late hours to protect the public, reduce the likelihood of reoffending or to maintain confidence in the administration of justice. [ 50 ] Neither defendant has a criminal record or any prior involvement with the law. It would appear that the curfew condition was imposed as a matter of course because the same exception applies to each defendant. MT is employed as a police officer and would be exempt from the curfew if he is working and if he has express written direction of his employer.

In practical terms, this would mean for periods of time, he would be a prisoner in his home if he wasn’t working. In my view, this is punitive and unnecessary given the circumstances of the case. [ 51 ] The same can be said for CT who is also bound by the same term. CT is 22 years old and is employed as a heating and air conditioning service technician. In the affidavit of Chantal Longe, paralegal to Mr. Butt, she swore that his employment requires him to make service calls during the night. His employer owns the van he uses to make the calls.

It would be impractical to get written direction from his employer before he attended a call to avoid the possibility that he might be breaching a term of his bail. For similar reasons, it is equally unnecessary in the circumstances of this case. [ 52 ] In a report titled Bail and Remand in Ontario, authored by Raymond E. Wyant for the Ministry of Attorney General in December 2016, the authors noted that imposing a curfew or house arrest when unnecessary can unduly interfere with employment or employment opportunities or just daily life (at p.48).

The authors stress that conditions should relate to the risk the accused poses in the community and related to the alleged offence mindful of the factors in s.515(10). Bail terms should not be imposed as a matter of course.

They need to serve a valid purpose of bail. [ 53 ] I agree with the defence position that the time of the alleged offences is not a sufficient basis to conclude that a curfew is necessary on either the secondary or tertiary grounds. ( iii) The no alcohol condition [ 54 ] The last condition in dispute is the term requiring both defendants to abstain from the consumption of alcohol or other intoxicating substances. This condition is more challenging than the curfew term. [ 55 ] Mr.

Lacy submits that there’s no evidence before the court that either defendant was so grossly impaired that it contributed to the underlying allegation. The prohibition restricts his client’s ability to socialize with family and friends, which he says is unnecessary. Mr. Sarikaya joins this submission. [ 56 ] Mr. Perlmutter counters that the term ought to be imposed because it’s clear that alcohol played a role in the alleged offences and is necessary to curb their behaviour and uphold confidence in the administration of justice.

He cited the tertiary grounds in support of his submission in stating that the Crown’s case against both defendants is very strong. [ 57 ] On the record before me, it would appear that alcohol had been consumed by both defendants. In particular, Cst. Justine Gendron was one of the first DRPS officers to attend at the scene after the 911 call and spoke with CT who advised that both he and his brother, MT, had been drinking alcohol. In her interview with the SIU, she added that she could smell alcohol on CT’s breath and asked if he was intoxicated. CT replied no but did admit drinking alcohol.

The issue of how much he consumed was never probed. She accepted CT’s position that he was not drunk. [ 58 ] At 3:34 am, MT was interviewed by Det. Sean McQuoid of the DRPS. CT was interviewed by the DRPS on January 9, 2017. A synopsis of both interviews were provided. It does not appear that despite the initial report of Cst. Gendron, that either party was asked about alcohol consumption. [ 59 ] The question of alcohol is challenging because Parliament saw fit to include this as a possible term of release when an accused is

released on a police bail under s.503(2.1)(g)(

i) but no such statutory language is included in s.515(4). To a casual observer, it may seem reasonable for Inspector Seymour to include such term but as I’ve stated above, the proper question is not what are reasonable bail terms in the abstract but rather what is reasonable from a constitutional perspective. The focus is necessary conditions that comport with the principles of bail in 515(10). I must ask myself is a term requiring the defendants to abstain from alcohol while on bail desirable to the extent that it’s necessary given the secondary and tertiary grounds? [ 60 ] Mr.

Perlmutter urges me to consider the comments of the Supreme Court in R. v. St. Cloud , 2015 SCC 27 in concluding that a reasonable person’s confidence in the administration of justice would be undermined if this term was not imposed. He submits that the Crown’s case against both defendants is very strong and the case for excessive force is compelling. He says both defendants suffer from a lack of control, which can be mitigated by the no alcohol term. [ 61 ] I agree that the allegations against both defendants are very serious.

If convicted, both defendants could face lengthy periods of imprisonment and in the case of MT, lose his ability to serve his community as a police officer. The injuries suffered by Mr. Miller are devastating. At this stage, it is not my function to determine guilt or innocence. Given the unique nature of the case, I am guarded in making any observations about how this matter will conclude. [ 62 ] With respect to the Crown position, I disagree that the circumstances of the allegations speak to a lack of control. In balancing all the factors in s.515(10)(

c) and the guidance from the Supreme Court in St. Cloud , a reasonable person properly informed of all the circumstances would understand that this is a very unique and highly contextual case. MT was not on duty when this altercation took place and police officers, like others, are allowed to consume alcohol when they’re not working. Of course, in this case, the Crown argues that by arresting Mr. Miller, MT assumed the duties of a police officer. However, I do not know if he and his brother were drunk at the time and whether the consumption of alcohol led to the altercation or somehow aggravated it.

Both MT and CT provided statements to the police. In the case of MT, it was almost contemporaneously with the event. There’s nothing to suggest he was so inebriated at the time that alcohol consumption remains a viable concern. [ 63 ] In relation to the public mischief allegation, both defendants have already provided statements to the police. There’s also nothing to suggest that alcohol was a factor in producing these statements. [ 64 ] At the bail stage, I must take the Crown’s case at its highest.

Even if I were to assume that both defendants were drunk during the altercation, I cannot conclude that a reasonable person would feel that public safety or confidence in the justice system would be compromised if such a term was not imposed. Abstaining from alcohol consumption might not amount to interference with ones’ liberty for some – but for others it would. I am mindful that both defendants are young, have families and may choose to socialize with others where alcohol is consumed. The legal proceedings may bind their conduct for up to 30 months, which of course is a long time.

The defendants are presumed innocent of the offences, the same way Mr. Miller began and ended his status as an accused person. [ 65 ] I find that on this record a no alcohol term is not necessary and to include it would be unreasonable within the meaning of s.11(

e) of the Charter . There is no evidence that either defendant was so inebriated or has a problem with alcohol consumption that a ban on alcohol is necessary to control their behaviour while in the community or to enhance confidence in the criminal justice system. On this record, it simply does not serve a valid purpose of bail. F.

Conclusion [ 66 ] For the foregoing reasons, the Undertaking with conditions is replaced with an order under s.515(2). [ 67 ] The parties have agreed to some conditions including a no contact term with various individuals, notifying the SIU of any change in address/employment and a term banning the possession of firearms/weapons. All of these are necessary and reasonable in the circumstances of this case. [ 68 ] A draft order is appended to these reasons. I will invite submissions on any outstanding issues including any proposed exceptions or terms that require clarification.

A final copy of the conditions of release should be appended to these reasons as Appendix A and attached to the information(s). [ 69 ] In accordance with the Promise to Appear, both defendants will be remanded to appear before the presiding Judge or Justice on August 10, 2017 at 9:00 am in courtroom 108 at the Ontario Court of Justice, 150 Bond St. East, Oshawa. [ 70 ] I would like to thank counsel for their helpful material and high level of advocacy. Released : August 2, 2017 “F. Javed J.”

Appendix A – Conditions of Release R.v. Michael Theriault, R.v. Christian Theriault 1. Notify Investigator Dean Seymour of the SIU or his designate in writing, 48 hours in advance of any change of address, employment or occupation; 2. Do not contact or communicate in any way directly or indirectly by any physical, electronic or other means with: a. Dafonte Miller and his immediate family members, b. Antonio Jack and his immediate family members, c. Bradley Goode and his immediate family members, d. James Silverthorn and his immediate family members, e. Michael Hastie Except

i) for required court appearances, ii) in the presence of or through legal counsel 3. Do not be within 100 metres of any place you know the above persons lives, works, attends school or happens to be; Except

i) for required court appearances, ii) in the presence of or through legal counsel 4. Do not contact or communicate in any way directly or indirectly by any physical, electronic or other means with members of the Durham Regional Police Service who investigated or assisted in the investigation regarding the assault of Dafonte Miller in Whitby on December 28, 2016. This includes but is not limited to: a. Det. Cst. Craig Willis #3047, b. Cst. Sean McQuoid #3140, c. Cst. Justine Gendron, d. Cst. Bowler, e. Cst. Zabdyr, f. Acting Sgt. Chmelowsky 5. Do not possess a.

A firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or all those things until dealt with according to law [s.515(4.1)]

b. Any weapon(

s) as defined by the Criminal Code (for example: a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person 6. If you possess any weapon(

s) as defined by the Criminal Code you must deposit them along with every authorization, license and certificate relating to any of these items, to Investigator Seymour, his designate or a Sergeant at Toronto Police Headquarters within 48 hours,