R. v. O’Hara, 2019 NSSC 18

SUPREME COURT OF Nova Scotia Citation: R. v. O’Hara, 2019 NSSC 18 Date: 20190110 Docket: CRA478666 Registry: Antigonish Her Majesty the Queen v Dion O’Hara Judge: The Honourable Justice N. M. Scaravelli Hearing: Decision: Antigonish, Nova Scotia, January 10, 2019 January 10, 2019Counsel: Jody McNeill for the Crown Colin Strapps for Mr. O’Hara Orally by the Court: [1] Dion O’Hara has made an application for bail review pursuant to

section 520 of the Criminal Code. He is charged in a fivecount indictment for committing sexual assault, assault, harassment, mischief and break and enter with intent to commit an indictableoffence. [2] These offences are alleged to have occurred between January 1, 2018 and April 5, 2018 at Antigonish, Nova Scotia andinvolve a single complainant. [3] A bail hearing was conducted on April 12, 2018. Mr. O’Hara was denied bail on the grounds set out in section515(10)(b)and(

c) of the Criminal Code. Namely that Mr. O’Hara detention was necessary for the protection of the public and there wassubstantial likelihood that he would, if released from custody, commit a criminal offence. Further that his detention was necessary tomaintain competence in the administration of justice. [4] In terms of a bail review the onus is on the applicant to show cause to vary or vacate the initial bail order. The SupremeCourt of Canada in R. v. St-Cloud, 2015 SCC 27, set out the standard of review on a bail review hearing.

The hearing is considered ahybrid process, it neither an appeal nor a hearing de novo. The power of a judge to review bail decisions is not opened ended. It is onlyto be undertaken in three situations. First, where there is new admissible evidence; second, where the bail decision contains an error inlaw; third, where the decision is clearly inappropriate. [5] In this application Mr. O’Hara does not allege an error in law, nor does he challenge the appropriateness of the bail decision. Mr.

O’Hara seeks bail on the basis of new evidence, showing a material change in circumstances and, therefore that the grounds fordenial no longer apply. [6] In this regard Mr. O’Hara has filed affidavit evidence as well as the transcript of the bail hearing. The Supreme Court ofCanada in St-Cloud endorsed the test set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759 providing the criteria to

be met for evidence to be considered new evidence.

(1) That the evidence should generally not be admitted if by due diligence it could have been adduced at trial. That is, was the reason for non-use legitimate and reasonable.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. That is, it must be significant. In the context of the relaxed rules of evidence in bail hearings, the four criteria should be applied with flexibility. [ 7 ] The evidence before the bail judge consisted of the statement given by the complainant regarding the circumstances surrounding the alleged offences. The court was provided with Mr. O’Hara’s criminal record. Mr.

O’Hara and his proposed surety gave evidence. [ 8 ] The trial judge heard evidence of unwanted sexual intercourse, where the complainant on two occasions unsuccessfully attempted to avoid sexual intercourse by pretending to be asleep. After their breakup Mr. O’Hara would continually follow the complainant around and continually contact her. He broke a window to gain entrance into her residence and damaged property on another occasion by breaking the glass pane on the door of her residence. The complainant attended the RCMP on April 5 th , 2018 reporting a physical and sexual assault by Mr.

O’Hara in her vehicle on that day. [ 9 ] According to the complainant Mr. O’Hara had previously threatened her that his friends would get her if she ever put him in jail. [ 10 ] The bail judge reviewed Mr. O’Hara’s extensive criminal record dating back to 1987 including aggravated assault, assault causing bodily harm, sexual assault, common assault and uttering threats. Mr. O’Hara was on probation at the time of the bail hearing. He had been convicted of aggravated assault and breach of probation in 2016. He was sentenced to 11 months imprisonment.

Evidence adduced at the bail hearing indicated that there were at least four failed to comply with either probation or recognizance orders. [ 11 ] The bail judge heard evidence from Mr. O’Hara that he was expecting to return to work by the end of the month. He testified he would comply with any bail conditions. Mr. O’Hara’s sister testified she was willing to act a surety. That Mr. O’Hara could reside with her in her one bedroom residence. She testified on direct that she acted as a surety for Mr. O’Hara on a previous occasion and that Mr. O’Hara complied with house rules.

Under cross-examination she acknowledged that Mr. O’Hara breached curfew when she was not at home. [ 12 ] The bail judge concluded that Mr. O’Hara’s detention was necessary for the protection or safety of the public in that there was substantial likelihood that he would, if released, commit a criminal offence. In this regard, he considered Mr. O’Hara’s extensive criminal record regarding offences similar to the ones before the court. His record of breaches and the threat made to the complainant’s safety by causing him to be in custody. [ 13 ] The bail judge was not satisfied with the relief plan involving Mr.

O’Hara’s sister, given the previous beach when she was a surety, as well the fact that she worked three days a week and would not be available to monitor and report. [ 14 ] The bail judge further determined that Mr. O’Hara’s detention was necessary to maintain competence in the administration of justice. He concluded that there was some strength to the prosecution’s case. He considered the seriousness of the charges and the circumstances surrounding them. He concluded that the was a potential lengthy term of imprisonment if Mr. O’Hara was convicted of the offences. [ 15 ] On Mr.

O’Hara’s application for review he submits there has been a material change in circumstances based on the following new evidence. 1. There has been a change in the status of Mr. O’Hara’s sister as surety. 2. She is now retired and available to monitor and report. 3. Mr. O’Hara would have employment as a delivery driver if released. 4. There is a witness who provided a statement to police that contradicts the complaint’s evidence regarding the harassment and assault charges of April 5 th , 2018. 5.

There has been substantial delay in the hearing of the case. [ 16 ] As per St-Cloud I should apply a general and liberal

interpretation to the term “new evidence”. The new release plan put forward by Mr. O’Hara is similar to that put to the bail judge. The only difference is that the same surety no longer works three days a week. I am not satisfied that this evidence would have influenced the bail judge’s decision on section 515(10) (

b) when balancing his concerns. He was aware that Mr. O’Hara’s sister had previously been his surety when he breached his curfew condition. Moreover, the new release plan does not address the tertiary ground. [ 17 ] The availability of employment for Mr. O’Hara had been put before the bail judge and therefore does not address the grounds for denial. [ 18 ] Mr. O’Hara submits there has been a substantial delay in bringing the matter to trial. The trial is scheduled to begin in Supreme Court June 3, 2019, a period of 14 months. Under these circumstances I do not consider this a relevant factor.

Moreover, delay was canvassed and considered by the bail judge. [ 19 ] A police witness statement was submitted as evidence on review. The statement was given by a witness who purportedly was with Mr. O’Hara at the time. This evidence was offered as a complete contradiction of the events described by the complainant on April 5 th , 2015 regarding the harassment and assault charges. Obviously this evidence would have been available at the bail hearing. Mr.

O’Hara refers to the Palmer test and the direction that any new evidence should be interpreted in a flexible manner. Having said that there appears to be no reasonable explanation for not adducing the evidence at the bail hearing. [ 20 ] In any event, having reviewed the statement, the glaring problem is that the witness does not specify a date regarding his description of an encounter between the complainant and Mr.

O’Hara and therefore this evidence is of little, if any, probative value regarding the various counts in the indictment. [ 21 ] I note that no sworn affidavit by this witness was produced at the review nor was the witness present to give evidence enabling consideration of credibility. [ 22 ] I further make the observation that the statement is open to a credibility assessment where the witness makes several disparaging comments regarding the complainant’s character and behaviours having earlier stated that he did not know her and only met her once. [ 23 ] For these reasons I am satisfied that had the witness statement been adduced at the bail hearing it would not have affected the bail judge’s decision on the strength of the prosecution’s case regarding the tertiary ground. [ 24 ] Finally, Mr.

O’Hara produced a letter dated June 29 th , 2018 directed to the crown counsel from the Sexual Violence Trauma Therapy Program Antigonish. Mr. O’Hara submits the comments in the letter dealing with the complainant’s post traumatic assault symptoms specifically relating to difficulty with attention and memory weakens the prosecution’s case in terms of her testimony. I find this evidence to be of little value regarding the

section 10(

c) grounds for detention. I note that the complainant testified in the preliminary hearing conducted on July 13, 2018, following which Mr. O’Hara was committed to stand trial on the five count indictment. [ 25 ] Having reviewed the evidence I am not satisfied that Mr. O’Hara has shown cause why his detention does not continue to be justified on the grounds contained in section 515(1)(

b) and (

c) of the Code . As a result I dismiss the application. Scaravelli, J.