R. v. Aylward, 2023 NSSC 68

SUPREME COURT OF Nova Scotia Citation: R. v. Aylward , 2023 NSSC 68 Date: 20230222 Docket: CRP No. 517737 Registry: Pictou Between: His Majesty the King v. Adam Ray Austin Aylward Decision on Bail Review Application Restriction on Publication: s. 517 which has expired on April 20, 2023 Judge: The Honourable Justice Frank P. Hoskins Heard: November 8, 23, 29; December 2, 5, 14, 19, 28, and 30, 2022; in Pictou, Nova Scotia Oral Decision: Written Decision: January 9, 2023 February 22, 2023 Counsel: Bill Gorman, for the Crown Adam Aylward, on his own behalf By the Court: [ 1 ] Adam Ray Austin Aylward (“Mr.

Aylward”) is on remand at the Central Nova Scotia Correctional Facility, having been remanded by Judge Atwood of the Provincial Court on June 23, 2022, after an interim release hearing where Mr. Aylward failed to show cause why his detention in custody is not justified pursuant to s. 515(6) of the Criminal Code . [ 2 ] In accordance with s. 525 of the Criminal Code , upon the expiration of 90 days a review hearing was immediately scheduled in this Court. [ 3 ] Mr. Aylward elected to represent himself in this review hearing, notwithstanding the repeated urging of the Court to reconsider that decision. Mr.

Aylward clearly and unequivocally stressed that he does not want the assistance of legal counsel. Indeed, he was steadfast in his position. Consequently, the review hearing was unusually long. There were multiple Court appearances to provide Mr. Aylward with the opportunity to fully argue his case, and at times to address his medical concerns. Mr. Aylward claimed throughout the proceeding that he has been, and continues to be, mistreated by the authorities. [ 4 ] It should be emphasized that this s. 525 review hearing was an exceptional case.

I only mention this because it is important to recognize that s. 525 review hearings are usually brief and focused. Be that as it may, I am satisfied that Court was provided with a comprehensive and complete record for the purposes of the review. This is significant because the right not to be denied reasonable bail without just cause is enshrined in s. 11(

e) of the Charter, which operates as a key organizing principle of

Part XVI of the Criminal Code . Where an accused person has been detained in custody following a judicial interim release hearing, the focus of a s. 525 review is on the detention itself rather than the decision to detain the accused person. As stated in R. v. St-Cloud, 2015 SCC 27 , “the release of accused

persons is the cardinal rule and detention the exception” (para. 70), and in R. v. Antic , 2017 SCC 27 , in which it was stated that “release is favoured at the earliest reasonable opportunity and… on the least onerous grounds” (para. 29). [ 5 ] Section 525(4) requires the reviewing judge to consider whether the Crown or the accused person is responsible for any delay in bringing the case to trial. [ 6 ] On January 6, 2023, the review hearing was completed, and on January 9, 2023, the Court concluded that Mr. Aylward’s continued detention is justified. What follows are the written reasons for having reached that decision. OVERVIEW [ 7 ]

Section 525 of the Criminal Code provides an automatic bail review process, commonly known as a “90-day Administrative Bail Review”. Under this

section the person having custody of an accused charged with an indictable offence is obligated to bring a motion for a review of the detention of any person who has been held for more than 90 days as determined under s. 525(1). The only threshold condition for a detention review under s. 525 is the expiration of 90 days following (

i) the date on which the accused was taken before a justice under s. 503, or (ii) the later date of the date on which the accused was taken into custody and the date of a detention order s. 521, 523.1(3)(b)(ii), 524 or 520. [ 8 ] Section 521(1) of the Criminal Code provides: 525

(1) The person having the custody of an accused — who has been charged with an offence other than an offence listed in

section 469, who is being detained in custody pending their trial for that offence and who is not required to be detained in custody in respect of any other matter — shall apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody, if the trial has not commenced within 90 days from (

a) the day on which the accused was taken before a justice under

section 503; or (

b) in the case where an order that the accused be detained in custody has been made under

section 521, paragraph 523.1(3)(b)(ii) or

section 524, or a decision has been made with respect to a review under

section 525, the later of the day on which the accused was taken into custody under that order and the day of the decision. The person shall make the application immediately after the expiry of those 90 days. Waiver of Right to Hearing However, the person having the custody of the accused is not required to make the application if the accused has waived in writing their right to a hearing and the judge has received the waiver before the expiry of the 90-day period referred. Notice of Hearing

(2) On receiving an application under subsection (1), the judge shall (

a) fix a date for the hearing described in subsection (1) to be held in the jurisdiction (

i) where the accused is in custody, or (ii) where the trial is to take place; and (

b) direct that notice of the hearing be given to such persons, including the prosecutor and the accused, and in such manner as the judge may specify. Cancellation of Hearing

(3) The judge may cancel the hearing if the judge receives the accused’s waiver before the hearing . Consideration of Proceeding’s Progression

(4) On the hearing described in subsection (1), the judge shall consider whether the prosecutor or the accused has been responsible for any delay and, if the judge is concerned that the proceedings are progressing slowly and that an unreasonable delay may result, the judge may (

a) give directions for expediting the proceedings; or (

b) require a further hearing under this

section within 90 days or any other period that the judge considers appropriate in the circumstances . Release Order

(5) If, following the hearing, the judge is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10), the judge shall make a release order referred to in

section 515. Provisions Applicable to Proceedings

(6) Sections 495.1, 512.3, 517 to 519 and 524 apply, with any modifications that the circumstances require, in respect of any proceedings under this section.

[ 9 ] In R. v. Myers 2019 SCC 18 , the Supreme Court of Canada clearly stated that question in the s. 525 review – whether the continued detention of the accused is justified – is somewhat different in nature than the question at the initial bail hearing or a review in a review under s. 520 or 521. Wagner J. wrote: [ 47 ] [w] hile ss. 520 and 521 exist for the purpose of reviewing a prior order, a review under s. 525 is more properly characterized as a review of the detention itself.

Yet there is no indication that Parliament intended the judge presiding a s. 525 detention review hearing to reconduct the original bail hearing in its entirety simply because 90 days have elapsed. Mr. Myers himself concedes as much: he argues only that a s. 525 hearing requires a "multi-factorial analysis": A.F., at para. 89. This means that the judge at the s. 525 hearing should in his or her analysis show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them.

Similarly, any balancing exercise or weighing of factors conducted by the initial bail judge must be reviewed in light of the time that has already elapsed and any other relevant considerations, as will be discussed below. [ 10 ] In this case, Mr. Aylward has been held in custody over 90 days and as a result, the Central Nova Scotia Correctional Facility where Mr.

Aylward is being detained in custody has filed a motion to review his detention pursuant to s. 525 . [ 11 ] The overarching question at the s. 525 review is whether the continued detention of the accused person is justified within the meaning of s. 515(10) of the Criminal Code .

Section 515(10) sets out three possible grounds on which detention of an accused in custody may be justified; where it is necessary to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice. [ 12 ] The Crown is opposed to Mr. Aylward’s release on the both the secondary and tertiary grounds pursuant to s. 515(10) (

b) and (c). Preliminary Issue: Who has the Onus of Proof on a s. 525 Review Hearing [ 13 ] Before addressing the issue of whether the continued detention of Mr. Aylward is justified within the meaning of s. 515(10) of the Criminal Code , the Court must first answer the question of who has onus of proof in a s. 525 review hearing to establish that the continued detention of the accused is justified. [ 14 ]

Section 525 of the Criminal Code does not specify who has the burden of proof at a s. 525 review hearing. The Supreme Court of Canada in Myers clarified the correct approach to a detention review hearing under s. 525 but did not explicitly address the issue of who has the burden of proof. Thus, the debate as to who has the burden of proof continues following the release of Myers. As Justice Trotter, in The Law of Bail in Canada, 3d ed. (Toronto: Carswell, 2022),
8:43, at p.8-65 observed: Prior to the 2019 amendments, there was also considerable debate to who bears the onus at a hearing under s. 525 .

As Hill J. said in R. v. Gill (2005): “neither the rules of this court nor the text of s. 525 provide any real assistance on issues such as burden of production and persuasion, the appropriate record, or the precise span of remedies.” Neither the Supreme Court in Myers , nor Parliament is its 2019 amendments, address this issue. [ 15 ] This uncertainty in the law has created different views as to who has the burden of proof. Prior to Myers, several cases decided that the onus of proof on a s. 525 review should be the same as it would be at the initial judicial interim release hearing ( See R. v .

Thorsteinson , 2006 MBQB 184 (Man. Q.B.) ; R. v. Sawrenko, 2008 YKSC 27 ). Since, Myers, there are different views about who has the onus of proof. In R. v . Denesevich , 2019 ONSC 3823 , Grace J. suggested that: [ 50 ] [T]he onus depends on what, if anything, has happened before. If, for example, a bail hearing was not conducted, the Crown should bear the onus as s. 515(5) mandates, unless shifted to the defendant by virtue of s. 515(6) . [ 16 ] Another view is that the onus of proof is on the defence. In R. v. Momolu [2019] O. J.

No. 5069 , the Court held that the onus in a bail review hearing rest with the defence, “ but it is not as stringent as the onus on a s. 520 application” (para. 50). [ 17 ] In R. v . Thorsteinson , 2006 MBQB 184 (Man.

Q.B.) , Beard J. wrote: [ 18 ] The test for continued detention under s. 525 is that the judge must be satisfied that the continued detention of the accused is justified under s. 515(10), but it could be met either by the crown satisfying the judge that the accused should be detained, applying the burden under s. 515(1) and (5), or by the accused failing to overcome the presumption of detention under s. 515(6).

Thus, the wording of s. 525(4) is suitable to accommodate the burden of proof whether it rests with the crown under s. 515(1) and (5) or with the accused under s. 515(6) . [ 19 ] There is no reason in principle to assume that the reverse onus that is clearly legislated in s. 515(6) should not apply under s. 525 , as s. 515(6) and s. 525 address completely different issues.

The purpose of the presumed detention under s. 515(6) is to address an increased risk that the accused will flee, will not follow the conditions of his or her release or is a high risk due to an alleged involvement with terrorism, a criminal organization or drug trafficking -- all very serious concerns. The lack of a bail hearing or a delayed trial does not eliminate or reduce those concerns, and s. 525 does not address them.

Section 525 is intended to address the issue of delay, but any concerns related to the delay are dealt with by the addition of s. 525(3), which adds the factors of the reasonableness of the delay and responsibility for the delay as matters for consideration under s. 525 in addition to the s. 515(10) grounds. [ 20 ] A delay is not necessarily the fault of the crown -- it can be caused by the accused. There is, therefore, no reason to eliminate the reverse onus in all cases of delay or to do so before a court has the opportunity to assess the reasonableness of and responsibility for the delay.

If the crown is found to be at fault for unreasonable delay, that can be dealt with in the final weighing and balancing of all of the factors, but it would be inappropriate to automatically eliminate the reverse onus even before a court has determined the cause of that delay. This could have the effect of rewarding an accused who is causing an unreasonable delay in the proceeding. [ 21 ] Further, to read in an automatic elimination of the reverse onus under s. 515(6) for all s. 525 reviews effectively puts a 90-day limit on s. 515(6) , which renders it virtually meaningless.

If the accused never proceeds with an application for release (as happened here),

then he or she would be entitled to a 90-day review hearing and to have his or her bail determined without reference to s. 515(6) . Even if he or she applied for release before the expiration of 90 days and was ordered detained, he or she is still entitled to one 90-day review under s. 525 if his trial has not commenced within 90 days of the last decision. If s. 515(6) does not apply, then there would be no reverse onus on that review. Given the serious concerns that s. 515(6) is intended to address with the reverse onus and the ability to address the reasonableness of and responsibility for any delay through s. 525(3), it goes against common sense and the purpose of s. 515(6) to adopt an

interpretation of the legislation that eliminates the reverse onus for all s. 525 reviews. [ 18 ] I endorse the above analysis, which is consistent with the reasoning in the more recent decision in Denesevich as noted above. [ 19 ] As Veal J. succinctly stated in R. v. Sawrenko , 2008 YKSC 27 : [ 30 ] [ t]he fairest procedure would be to have the burden of proof on the same party that had the burden that resulted in the original or reviewed custodial order. [ 20 ] Thus, in my view, if the burden was on the Crown at the initial judicial interim release hearing, then it remains with the Crown.

If the burden was on the accused by virtue of a reverse onus provision, then it remains with the accused at the review hearing. Nature of the Review [ 21 ] In Myers , the Supreme Court of Canada was asked to determine the correct approach to a detention review under s. 525 , and to explain the place of such a review within the larger context of pre-trial custody in Canada. In doing so, the Court stressed that Parliament intended s. 525 to operate as a safeguard. The

section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand. [ 22 ] Clearly, the purpose of the s. 525 hearing is to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial.

In Myers , the Court stressed that Parliament sought to achieve this purpose by subjecting lengthy pre-trial detentions to judicial oversight at set points in time, by affording an opportunity to have a judge consider whether continued detention of an accused person is justified, and by conferring on the judge a discretion to expedite the trial of an individual in pre-trial detention. [ 23 ] As noted in Myers , the correct approach to the s. 525 detention review is as follows.

First, the jailer has an obligation to apply for the detention review hearing immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s. 503 of the Criminal Code . Where there is an intervening detention order under s. 520 , 521 or 524 of the Criminal Code following the initial appearance of the accused and before the end of the 90-day period, the 90-day period begins again.

Accused persons who have not had a full bail hearing are also entitled to a review under s. 525 , since the fundamental purpose of s. 525 is to afford an opportunity to have a judge scrutinize the detention itself, and these individuals should not be denied that safeguard. [ 24 ] In this case, upon receiving an application from the Central Nova Scotia Correctional Facility pursuant to s. 525(1) of the Criminal Code , a date was scheduled for a hearing to determine whether Mr. Aylward should be released from custody. On October 6, 2022, Mr. Aylward appeared in Court by video. Mr.

Gorman appeared on behalf of the Crown. Justice Gabriel adjourned the matter over until November 3, 2022, the next chambers date for a status review. [ 25 ] On November 3, 2022, Mr. Gorman on behalf of the Crown, and Mr. Aylward appeared before in Court to set the earliest possible date for a review hearing. Mr. Aylward advised the Court that he wanted to represent himself as he had discharged his legal counsel. [ 26 ] The Court ordered a transcript of Mr. Aylward’s bail hearing of June 23, 2022, before Judge Atwood of the Provincial Court. At that time, Mr.

Aylward was in a reverse onus situation because the nature of the charges. He is charged with four counts of breaching s. 145 of the Criminal Code , which places him in a reverse onus under s. 515 (6) (

c) of the Criminal Code . Section 515(6) applies when the accused is charged with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being release in respect of another offence. Section 515(6) states that unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law.

Judge Atwood ruled that cause had not been shown by Mr. Aylward, and accordingly, remanded him until March 1, 2023. He further added that the no-contact endorsements continue during his remand. [ 27 ] A bail review hearing was scheduled for November 8, 2022, with the hope that the transcript would be prepared. The transcript was not prepared in time to conduct the bail review on November 8, 2022, so the bail review was adjourned until November 16, 2022. On that date, after a brief discussion of Mr.

Aylward’s circumstances, which included a review of his outstanding charges and release orders, including the bail hearing of July 23, 2019, where he was released on a Release Order with very stringent conditions, the Court adjourned until November 23, 2022, to gather more information. To expedite the scheduling of the hearing, the Court ordered that the recording of that bail hearing of July 23, 2019, be prepared to be played in Court on November 23, 2022, as it would take too long to have a transcript prepared. [ 28 ] On November 23, 2022, the recording of the bail hearing of July 23, 2019, was played in Court.

Judge Atwood released Mr. Aylward on a release order with very stringent conditions, which included house arrest. [ 29 ] It is noteworthy that Mr. Aylward complied with all the stringent conditions of his Release Order from July 23, 2019, until March 20, 2022, ( approximately 32 months) where it is alleged that he breached his Release Order by possessing or consuming alcohol; by failing to wear a secure continuous remote alcohol monitoring bracelet; by failing to reside at 2616 Highway 376, Lyons Brook, Pictou County, and by failing to comply with a house arrest condition. Mr.

Aylward has pleaded not guilty to these charges. [ 30 ] As stated in Myers , at the hearing, the reviewing judge may refer to the transcript, exhibits and reasons from any initial judicial interim release hearing and from any subsequent review hearings, and should show respect for any findings of fact made by the first-

level decision maker if there is no cause to interfere with them. [ 31 ] Both the Crown and the defence are also entitled to make submissions on the basis of any additional credible or trustworthy information which is relevant or material to the judge's analysis, and pre-existing material is subject to the criteria of due diligence and relevance. [ 32 ] On November 23, 2022, the review hearing continued. [ 33 ] The Crown stated that it was opposed to Mr. Aylward’s release based on the both the secondary and tertiary grounds: ss. 515(10) (

b) and (c). The Crown further submitted that the burden should be on Mr. Aylward to show cause why his detention in custody is not justified within the meaning of s. 515(10) . [ 34 ] The Crown provided a historical overview of Mr. Aylward outstanding charges, which included the following: • The offences of assault and breach of probation which are alleged to have occurred on June 21, 2017. • On June 25, 2017, at or near Truro, it is alleged that Mr. Aylward committed the offences related to impaired operation of a motor vehicle while subject to a prohibition order.

He was released on these allegations. • The offence of breaching a Release Order which is alleged to have occurred on July 3, 2017. He was released on that charge on July 5, 2017, on Recognizance in the amount of $2,000.00, with terms and conditions. • On December 12, 2018, while on Fishing Vessel, Mr. Aylward became violently aggressive, and had to be removed from the vessel. He is alleged to have uttered threats to others on board the vessel and had alcohol and drugs in his possession. • The offences of assault and breach of his release order which is alleged to have occurred on April 19, 2018.

On those charges he was released by Judge Halfpenny MacQuarrie of the Provincial Court after a contested show cause hearing on April 30, 2018. He was released on a Recognizance in the amount of $3,000, no cash deposit, coupled with very stringent conditions. • Mr. Aylward is charged with offences related to impaired operation of a motor vehicle, which include impaired operation and dangerous driving. It is alleged that he committed these offences on January 2, 2018, in Pictou County. He was subject to a driving prohibition at the time.

He was arrested on these charges on July 14, 2018, and released on a promise to appear. • Mr. Aylward is also charged with uttering threats, breaching probation and release orders on May 30, 2019, which are alleged to have occurred in Pictou County. • The Crown submitted Mr. Aylward’s criminal record. Mr. Aylward has a significant criminal record, which includes offences relating to breaches of court orders. [ 35 ] As previously mentioned, Mr.

Aylward was charged with breaching his Release Order on March 20, 2022, at or near New Glasgow by failing to comply with the terms and/or conditions of his Release Order issued on July 23, 2019. [ 36 ] On June 23, 2022, Mr. Aylward was denied bail because he failed to show cause why his detention in custody was not justified. He was in a reverse onus situation at that time pursuant to s. 515(6) of the Criminal Code . [ 37 ] Mr.

Aylward made extensive submissions about his personal circumstances, particularly the hardship that he is enduring while incarcerated, and has endured while on release for approximately 32 months. He described the pain and suffering that he had to endure while wearing an ankle bracelet when he was on house arrest. He also described the pain and suffering that he has been enduring while on remand. Indeed, throughout this review hearing he has emphatically commented on the how he has been mistreated by the authorities for failing to provide an adequate or proper level of medical care. [ 38 ] Mr.

Aylward readily acknowledged that he has suffered from severe alcoholism which has been primary casual factor for his criminal transgressions. He also stressed that he needs counselling and/or treatment for having been sexually assaulted. He added that he is prepared to attend counselling with a professional counsellor, with expertise in addictions counselling. [ 39 ] Mr. Aylward stressed that he has worked very hard at trying to cure his alcoholism, because it has caused a lot of his problems with the law.

His efforts are also referenced by Judge Halfpenny MacQuarrie of the Provincial Court in her decision dated April 30, 2018, which summarized the evidence proffered in that case, In her decision, she summarized the evidence of Lisa Haughan, Mr. Alyward’s wife, which supported Mr. Aylward. After reading into the record the letter she wrote in support of her husband, she commented on the efforts Mr. Aylward had taken to cure his disease. Mr.

Aylward had been the recipient of a multitude of addiction services and has undertaken personal counselling, which includes a 30-day stay at the Crosby House, after a 8-day detoxification program in New Brunswick in July of 2017. He had been in continuous counselling since that time. [ 40 ] Judge Halfpenny MacQuarrie outlined the efforts Mr. Aylward has made in the past and commented on his plan to continue with rehabilitation. The Judge released Mr.

Aylward having been satisfied that he met the burden of showing that his detention in custody was not justified because of the concrete and structured release plan that he presented to the Court. [ 41 ] Likewise, Mr. Aylward proffered a very structured and concrete release plan to Judge Atwood, which secured his release into the community. [ 42 ] Mr. Aylward struck me as being sincere in trying to cure his alcoholism, which is, in part, supported by all his efforts to engage in treatment and/or counselling. [ 43 ] Mr.

Aylward presented the Court with numerous exhibits, to explain his circumstances, including the photos of his injured ankle, which were supported by medical notes and his efforts in reaching out to the Crown about his concerns; the correspondence of his

successful completion of Anger Management in February and March 2021; Dr. King’s letter dated June 18, 2018, which expresses that Mr. Aylward has taken recent steps in the right direction to treat his underlying mental illness and addiction; and other written documents which suggest that Mr. Aylward is seeking counselling and or treatment such as his response letter from a social worker about his inquiry about getting treatment for survivors of sexual abuse. [ 44 ] Mr.

Aylward also emphatically stated that he believes that he has been incarcerated far too long for what he has allegedly done, and strongly believes that his time on remand exceeds a potential period of incarceration. [ 45 ] At one point during the hearing, Mr. Aylward expressed to the Court that he has no real plan, other than he will comply with any court order. He stressed that he simply wants to live a normal life without having to comply with stringent release conditions, such as house arrest.

Later, in the hearing after it was pointed out to him that he must have a structured and concrete release plan, he asked the Court for more time to prepare a plan, which was provided to him. [ 46 ] Mr. Aylward proffered a release plan that included his wife, Lisa Haughan, to act as his surety. She submitted a Surety Declaration pursuant to s. 515.1 of the Criminal Code , in which she pledged $1,500.00. As a surety, she promised to monitor and/or supervise her husband’s behaviour while he in the community. Mr.

Aylward’s proposed release plan contemplates stringent conditions, which are set out in Exhibit 16. [ 47 ] Before embarking upon an analysis of Mr. Aylward’s proposed release plan, it seems appropriate at this juncture to make some general comments about the important obligation and the role a surety serves in maintaining public confidence in the effectiveness of the administration of justice. These comments will hopefully serve as a backdrop to my findings regarding the prospective surety being proffered in the present case.

General Suitability of Prospective Sureties [ 48 ] Unlike in historical times where the only duty or responsibility of the surety was to ensure the attendance of the accused in Court, today sureties are required to take on a much greater role in the supervision and/or monitoring of the accused in the community. Sureties are responsible for ensuring that the accused complies with all of the conditions of release. They are seen as the eyes and ears of the Court. Consequently, it is critical in managing risk to ensure that the surety has the ability to act as an appropriate and effective surety.

In order for a surety to be effective, he or she must be generally concerned of the prospect of forfeiture should the accused breach a condition of release. An effective surety possesses strong moral characteristics, including being conscious of taking the appropriate action if required while being concerned for the welfare of the accused person. On the other hand, the accused person must understand and appreciate the real risk of loss to the surety should there be a breach of a condition of release.

This requires the accused person to possess a genuine concern for placing the surety's property in jeopardy coupled with a concern of breaching the trust reposed in him or her by the surety, the Court, and the public. All of this concern is meant to bind the conscience of the accused person to ensure that he or she complies with the conditions of release. [ 49 ] As Justice Trotter stated, in The Law of Bail in Canada , (3 rd Edition) at
7:3, at p.7-19: Just as important as the surety’s character is the nature of the relationship between the proposed surety and the accused.

On a view of the surety relationship that contemplates any degree of supervision of the accused, it is critical to know whether the relationship is one which will realistically permit the infusion of these obligations and their potential enforcement. ... Thus, it is important to inquire beyond the mere informalities of the surety’s relationship with the accused and determine its nature.

Factors such as how long the surety has known the accused, whether they are related, how frequently they see each other and how close they live to one another (indeed, whether they live together) should give some indication of how well a surety can be expected to supervise an accused and take action if the accused will not be in a position to effectively supervise the accused. The same may be said of a close friend or family member who lives a long way from the accused. Thus, the circumstances of each case will be important. Many people who are proffered as sureties are relatives or close friends of the accused.

Even if some of the above-mentioned criteria are met, a person may still be unsuitable as a surety. A parent who has no effective control over a grown child who still lives in the family home will not be a good candidate. [Emphasis added] [ 50 ] In this case, the Crown has expressed substantial concerns about the prospect of Ms. Aylward’s wife being Mr. Aylward’s surety. The Crown emphatically stated that it would be inappropriate to have Mr. Aylward’s wife act as his surety because she is the complainant (Crown witness) in relation to the assault charge for which is scheduled for trial.

Moreover, the Crown submits there is a real concern that the proposed surety has the necessary ability to supervise and/or control Mr. Aylward’s behaviour while he is in the community. [ 51 ] It is fair to say that a surety must be a person of responsible character and devoted to the task of ensuring that the accused person is compliant with the conditions of release, especially in respect to the factors that must be considered under the secondary ground where the emphasis must be on the surety's character and reliability rather than on the surety's financial resources.

An effective surety must be able to give guidance to and assert control over the accused person to avoid any further criminal charges or breaches of bail. A surety must realize that if the accused person commits another criminal offence or else fails to abide by his or her conditions of release, the surety may be obligated to pay the amount pledged or paid into Court. This is called "bail estreat". Thus, to avoid bail estreat, a surety should do everything possible to assist and make sure that the accused abides by the rules imposed on him or her.

The surety should also contact the police and inform the court or withdraw himself or herself as surety if there are problems. Otherwise, the surety's pledge of funds are at risk. [ 52 ] In determining whether a surety arrangement is suitable, the focus must be on whether the supervision plan or release plan realistically provides assurance that the objectives of the bail system will be met, not on whether the person applying for bail has put together the best plan available.

[ 53 ] The Crown has expressed substantial concerns about the proposed surety's ability to adequately supervise and/or monitor the accused persons while on bail. The central thesis of these concerns is the surety's inability to prevent the accused from engaging in further criminal activity while on bail. [ 54 ] I agree with the Crown submission that it would be clearly inappropriate to have a Crown witness in an assault charge act as the accused’s surety. Consequently, as previously stated, a more structured and concrete release plan, with suitable sureties is required, to adequately minimize the risk of Mr.

Aylward re-offending, and to maintain public confidence in the administration of justice. [ 55 ] With respect to the Court’s overarching supervisory role in ensuring that cases are not unduly delayed, I am mindful that in some cases the delay in the proceedings may be sufficient basis upon which the release of the applicant (the detained person) will be ordered. However, having considered the entirety the record in this case, I am satisfied that the current delay in this case does not compel the release of Mr. Aylward. If the delay does become a real concern in the future, Mr.

Aylward can bring an application under s. 520 or s. 525 of the Criminal Code . [ 56 ] The Crown suggested that this Court could give directions to expedite Mr. Aylward’s cases in the Provincial Court.

As Justice Di Luca of the Superior Court of Justice of Ontario, stated, “the case law on giving directions for expediting a trial is not well developed and practical concerns arise when a reviewing court considers directing the one case “jump the queue”, particularly where the case is to be tried at a different level of court” (Paper prepared for the National Criminal Law Program, Federation of Law Societies, July 2022, Victoria, BC, at p. 12). [ 57 ] In my view, based on all of the evidence adduced in this review hearing, a reasonable person, fair minded and well informed member of society, who is fully apprised of all of the circumstances surrounding the alleged offences and of the accused, and is well informed about the philosophy of the legislative provisions and Charter values, would conclude that the proposed released plan does not adequately minimize the risk of re-offending or maintain public confidence in the administration of justice. [ 58 ] The nature and circumstances surrounding the commission of the alleged offences, places the burden on Mr.

Aylward to justify his release from custody. The onus is upon Mr. Aylward to discharge the burden, on the balance of probabilities, why detention is not justified under either ground under s. 515(10) , (a), (b), and (

c) of the Criminal Code . [ 59 ] For all the foregoing reasons, I am satisfied that the continued detention of Mr. Aylward remains justified. Hoskins, J.