R. v. Deng, 2017 ONCJ 369

ONTARIO COURT OF JUSTICE CITATION: R. v. Deng , 2017 ONCJ 369 DATE: 2017·06·06 COURT FILE No.: Guelph 17162 BETWEEN: HER MAJESTY THE QUEEN — AND — Kaiyuan DENG Before Justice of the Peace M.A.

Cuthbertson Heard on 23 March 2017 Reasons for Judgment on Bail Variation released on 6 June 2017 Williams, T. .................................................................................................. counsel for the Crown Fera, J. ............................................................................................... counsel for the accused Deng JUSTICE OF THE PEACE CUTHBERTSON: 1) BACKGROUND [ 1 ] On 23 March 2017, Mr Deng appeared in the Intake court to seek a bail variation, pursuant to s. 515.1 of the Criminal Code .

The application sought the addition of the following condition to Mr Deng’s recognizance: Attend and complete the Partner Assault Response Program For ease of reference, I will call this the PARS condition. [ 2 ] The application had been agreed to by Mr S Hamilton of the Crown Attorney’s office. Mr Deng advised that his counsel was Mr J Fera. [ 3 ] At my request, Mr Deng invited Mr Fera to appear later that morning in the Bail court to address concerns I had about the application.

Mr Fera kindly did so. [ 4 ] I asked Mr Williams (Crown counsel) whether he preferred to have Mr Hamilton speak to this matter but Mr Williams felt comfortable in proceeding. [ 5 ] After hearing from both counsel, I declined to add the PARS condition to Mr Deng’s bail and stated that I would provide my reasons in writing. Those reasons follow. 2) THE EARLIER RECOGNIZANCES

[ 6 ] Mr Deng was charged with 2 counts of assault on a domestic partner from 31 December 2016 and 20 January 2017 contrary to s. 266 of the Criminal Code . By chance, I was the justice of the peace who originally released Mr Deng on a recognizance without sureties on 23 January 2017 on these charges. The Crown had recommended release.

That recognizance contained the following conditions: 1) Reside at S[…] Drive, Guelph, Ontario. 2) Do not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following: Minyue Kiang EXCEPT - In the presence of or through legal counsel - On one occasion, to retrieve your personal belongings from Unit […], G[…] Street, Guelph, Ontario and only in the presence of a uniformed police officer. 3) Do not be within 100 metres of any place where you know any of the person(

s) named above to live, work, go to school, frequent or any place you know the person(

s) to be EXCEPT for required court appearances EXCEPT - As may be incidental for educational purposes at the University of Guelph. 4) Do not possess - Any weapon(

s) as defined by the Criminal Code (for example, but not restricted to, 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). [ 7 ] I was satisfied on 23 January that all of the conditions above were reasonable and necessary to satisfy the secondary ground concerns (s. 515(10)(

b) CCC) which were apparent in this matter.

Neither side expressed any desire for Mr Deng to attend the Partner Assault Response Program nor did they make any submissions as to why that condition might be necessary. [ 8 ] On 9 February 2017, Justice of the Peace Rodney granted a bail variation and changed the address where Mr Deng was to live to […]-G[…] Street, Guelph, Ontario. 3) THE ISSUES [ 9 ] I invited submissions from counsel to address whether the PARS condition was an appropriate one to be added to a bail order. [ 10 ] As well, I wished to provide considerable deference to the joint submission that was clearly before me and to provide an opportunity for counsel to respond to my concerns, before I decided whether the condition was reasonable and appropriate. [ 11 ] I also wished to consider whether I had any legal discretion to reject the PARS condition. 4) THE SUBMISSIONS OF COUNSEL [ 12 ] Mr Fera submitted that the PARS condition was being sought as part of a resolution arrangement.

He stated: …part of the reason for the variation is so that he (Mr Deng) can be admitted into the PARS program now rather than after sentencing, or prior to resolution of the matter. Transcript at page 1 [ 13 ] In response to my question as to what the condition has to do with bail, Mr Fera stated: I think there could be a good basis for it in bail to assist in the protection of the public that might be a basis for (it). Transcript at page 3 [ 14 ] I also asked Mr Fera whether there had been some change in the funding arrangements for PARS that caused this condition to be sought to be added to the bail order.

Mr Fera advised that there is now a $250 registration fee whether a judicial order is made or not. However, he did further indicate that the fee may be higher if no judicial order existed but he was not entirely certain of this. [ 15 ] Mr Fera then advised, in response to another question from me, that Mr Deng could still attend PARS if there was no judicial order but it was more difficult to get into the program without the order.

[ 16 ] Mr Fera submitted that this condition is relatively new to Guelph but is being granted in other jurisdictions by other judicial officers. [ 17 ] Mr Williams submitted that this: ...may be one of those condition captured under Section 515(4)(f) – to comply with such reasonable conditions specified in the order as the justice considers desirable. Transcript at page 4 [ 18 ] Neither Mr Williams nor Mr Fera could provide any case law on the issue. 5) ANALYSIS 5.1) Is this an appropriate condition to be added to a bail order? [ 19 ] I agree with Mr Williams that s. 515(4)(

f) provides the authority for a judicial officer to place additional conditions into a bail order other than those enumerated in s. 515(4) (a to e.1). However, I also note that s. 515(4) states that the justice ‘may direct’ that the defendant do certain things as part of a bail order. Therefore, the addition of a condition is not mandatory but clearly under s. 515(4) (

f) the proposed condition must be ‘reasonable’. As well, the justice must consider it to be ‘desirable’. [ 20 ] There has been much written from various sources including both non-judicial and judicial decisions on what constitutes a ‘reasonable’ condition. A review of some of the body of writings is helpful, in this matter. I will start by considering non-judicial sources. Of course, these are not binding on me but are worthy of reflection. [ 21 ] In 2012, the Bail Experts Table (BET) was established by the Ministry of the Attorney General to consider bail issues in Ontario.

The BET included representatives from the stakeholder groups which regularly work in Ontario’s bail courts, including the Crown Attorney’s office, the Defence bar, the police and the judiciary. In its recommendations of 2013, BET wrote of the problems surrounding ‘administration of justice’ offences. In other words, offences which often result from a breach of a court order such as a bail condition.

As well, the BET spoke of the need to focus conditions only on those required. [ 22 ] The following excerpt sets out the problem and BET’s recommendation on how such offences should be lessened through appropriate bail orders with reasonable conditions. It stated: Conditions of Bail This committee would like to emphasize the importance of organizational support from each key justice participant group in the implementation of the recommendations included in this section. In 2011/12, 18.5% of adult remand admissions in Ontario included an “administration of justice” offence as the most serious offence.

This was higher than any other category, including “assault & related” offences. Further, the number of cases with at least one administration of justice charge increased significantly from 24.7% in 1999 to 35.5% in April 2012 – a 10.8% increase. Increased frequency and complexity of conditions of bail may contribute to the increasing number of administration of justice charges, and to the likelihood that an accused person will spend time in remand as a result of breaching their Judicial Interim Release Order.

Judicial officers, Crown Attorneys, police, defence counsel and duty counsel must be diligent to ensure that conditions of bail applied to accused persons’ Judicial Interim Release Orders are reasonable, necessary, and directly related to: • The circumstances of the alleged offence; • The circumstances of the accused person; • The primary, secondary and tertiary grounds; and • Mandated sections of the Criminal Code . {NB: For brevity, I have not reproduced sections 515(2),(2.1) and (3) which set out the ‘ladder principle’ of bail in the Criminal Code } [ 23 ] The Bail Experts Table then made the following recommendation: Recommendation #28: Key justice participant groups should collaborate to develop and provide ongoing education regarding: • The application of the ladder principle; • Options for forms of release; and • Appropriate conditions of release that are in keeping with the circumstances of the offence and offender, and the primary, secondary and tertiary grounds, as well as in keeping with the provision in s. 515 (3).

Such education should be delivered to police, Crown Attorneys, judicial officers, duty counsel, defence counsel and other key justice participants as appropriate. [ 24 ] I am therefore reminded by the Bail Experts Table that bail conditions should be carefully crafted to ensure they address only

the 3 ground set out in section 515(10) and related sections of the Criminal Code. Those conditions must also be reasonable andnecessary. [25] Trotter J, wrote in The Law of Bail in Canada on the need for restraint when imposing conditions. He stated: Care must be taken in the selection of the form of release and the imposition of appropriate conditions.

Just as the presumptionof innocence mandates that pre-trial detention should be as burden-free as possible without compromising security, conditions of releaseought to be approached with restraint and should only be imposed to the extent that they are necessary to give effect to the criteria forrelease. The Law of Bail in Canada, Third Edition, 2010, Gary Trotter J., at page 6-4 [26] This premise has also been noted in judicial decisions.

In R v Thomson, Corbett J held that the bail conditions should be theleast restrictive that are consistent with securing public safety, attendance at court and respect for the administration of justice to complywith Charter values. Justice Corbett stated: When a court determines that an accused is not to be detained pending trial, then the accused is to be ordered released on terms that arereasonable having regard to the circumstances of the alleged offence and the accused. Subsection 515(3) makes it clear that the leastintrusive appropriate means of release are to be used.

Subsection 515(4) provides a list of possible conditions that may be included in arelease order pursuant to s. 515(2). Reading these provisions together, in light of Charter values, it is clear that the conditions imposedpursuant to s. 515(4) should be the least restrictive conditions that are consistent with securing public safety, attendance at court, andrespect for the administration of justice, as reflected in s. 515(10). See R. v. Pearson, supra. {emphasis added} R. v. Thomson, [2004] O.J.

No. 1873, Ontario Superior Court of Justice, Corbett, J., at para 52 [27] In R v Prychitko, Veit J, of the Alberta Court of Queen’s Bench considered what constitutes reasonable bail and thelimitations of conditions which may be imposed under s. 515(4)(f). Justice Veit quoted from the decision of Charron J (as she then was),in R v Major (1990) (ON SC), 76 C.R. (3d) 104 (District Ct) and the decision of Lamer J (as he then was) of theQuebec Court of Appeal in Re Keenan v The Queen (1979), (QC CA), 57 CCC (2d) 267. The Court held: 5 A person who is accused of a crime is presumed to be innocent of that crime.

That person is entitled to reasonable bail; the bailstructure set out by Parliament establishes that release on bail should be without conditions unless the party with the burden establishesthat conditions are necessary; i.e., there is a 'ladder approach to bail'. Other than the enumerated statutory bail conditions, any other bailcondition imposed by the court must be 'reasonable' and 'desirable': s. 515(4)(

f) Canadian Criminal Code. In this context, a reasonablecondition is one which 'pertains to the considerations set out in the Code with respect to the grounds for justified detention': Major.{emphasis added} 2. A non-enumerated bail condition must be reasonable; in this context, 'reasonable' means one which gives effect to the criteriafor release 13 Parliament has limited the imposition of non-enumerated bail conditions; a court which imposes bail conditions other than the onesset out by Parliament in the Criminal Code, must limit itself to bail conditions which are 'reasonable' and 'desirable': s. 515(4)(f).

AsCharron J., as she then was, put it in Major, in this context, 'reasonable' means a condition which 'pertains to the considerations set out inthe Code with respect to the grounds for justified detention': Similarly, the justice of the peace cannot impose conditions simply on the basis of the prosecutor's application for same and theaccused's consent thereto without hearing some evidence upon which a finding can be made that such conditions are warranted anddesirable.

The conditions must pertain to the considerations set out in the Code with respect to the grounds for justified detention.Reference can be made to Re Keenan and The Queen (1979), (QC CA), 57 C.C.C. (2d) 267 (Que. C.A.) where Mr.Justice Lamer of the Quebec Court of Appeal (as he then was) stated at p. 276 (translation as reported): R. v. Prychitko, [2010] A.J. No. 1665, 2010 ABQB 563, Alberta Court of Queen’s Bench, Veit J, at paras 5, 13 [28] Therefore, judges from Superior Courts in Ontario (Thomson and Major), Alberta (Prychitko) and the Quebec Court ofAppeal (Keenan) have all held that s. 515(4)(

f) only permits bail conditions which have a purpose as set out in s. 515(10) (a),(

b) or (c).As well, they must be reasonable and desirable. A reasonable condition is defined as one which gives effect to the criteria for release. 5.2 The Law of Joint Submissions [29] In R. v. A. (D.), Sosna J held that a joint submission for bail conditions can only be rejected if it is either unlawful or wouldbring the administration of justice into disrepute, by being unreasonable. The Court held: The Court of Appeal of Ontario has held that a judge may reject a joint submission for sentence if that sentence would be contrary to thepublic interest or bring the administration of justice into disrepute.

I cite R. v. Downey, [2006] O.J. No. 1289; R. v. Dorsey (1999), (ON CA), 123 O.A.C. 342; R. v. Sriskantharajh (1994), (ON CA), 90 C.C.C. (3d) 559. More specifically in R. v. Findlay, [2004] O.J. No. 3263 at paragraph 6, Justice Gordon of the Ontario Court of Justice addressed theissue under what circumstances should the court exercise its discretion to reject a joint bail release submission. Justice Gordon held that,

"When crown counsel at the bail hearing proposes terms to the court in circumstances set out in

Section 515, it isincumbent upon the justice of the peace to accept those terms unless he or she determines that those terms are either unlawful or theywould bring the administration of justice into disrepute." Justice Sosna also adopted the test from Keenan to determine whether a bail condition is reasonable. The Court held: For a term to be considered a reasonable condition, the term must be related to a purpose which would otherwise justify the accused'sdetention pending trial. I cite R. v. Keenan (1979), (QC CA), 57 C.C.C. (2d) 267.

Again, the terms imposed on bail release must have a related purpose which justifies their imposition. Without a purpose, the terms areunreasonable and thus arbitrary. Imposing unreasonable or arbitrary terms would bring the administration of justice into disrepute. R. v. A. (D.), 2014 ONSC 2166, [2014] O.J. No. 2059, Ontario Superior Court, Sosna A, at paras 8, 9, 12, 17 (see also R. v. Findlay, [2004] O.J. No. 3263.

Ontario Superior Court, Gordon, D) [30] More recently, in R v Anthony-Cook, Moldaver J, of the Supreme Court of Canada decided that the correct test for rejecting ajoint submission is the public interest test. Under this test, a joint submission should not be rejected unless it `would bring theadministration of justice into disrepute or is otherwise contrary to the public interest`. The Court held: A.

The Proper Test 32 Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentencewould bring the administration of justice into disrepute or is otherwise contrary to the public interest… Justice Moldaver noted that a joint submission should not be rejected lightly. The Court then stated: 42 Hence, the importance of trial judges exhibiting restraint, rejecting joint submissions only where the proposed sentence would beviewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.

R v Anthony-Cook, 2016 SCC 42 , [2016] S.C.J. No. 42, Supreme Court of Canada, Moldaver J, at paras 32, 42. Despite this decision being in regard to joint submissions in trial courts, I am satisfied that the same principles apply to joint submissionsin bail courts. 5.3 Residual Discretion to Reject a s. 515.1 Bail Variation [31] In addition to the case law on joint submissions, I also note that Hill J, in R v Ford held that there exists a residual discretionfor a judicial officer to decline a proposed variation under s. 515.1. (see R v Ford, [1998] O.J.

No. 3725, Hill J, Ontario Court (Gen Div),paras 17, 18). 5.4 What is the Purpose of the PARS Condition? [32] To correctly apply the case law on joint submissions, it is necessary to determine what the PARS condition is intended toaccomplish and if it is reasonable, necessary and desirable. [33] Mr Fera originally stated that Mr Deng’s attendance at PARS was part of a possible resolution of his charges. [34] Mr Fera, when I asked what the term has to do with bail, then suggested that the condition might have a basis for theprotection of the public.

However, Mr Fera provided no specifics to support that contention nor did he explain why such a basis existedon 23 March rather than at the original bail hearing of 23 January. Mr Williams deferred to the submissions made by Mr Fera, withoutfurther commenting on reasons as to why the condition is needed. [35] With great respect to Mr Fera’s creative attempt to link the condition to secondary ground concerns under s. 515(10)(b), I seeno basis for such a suggestion.

The real reason for this condition is exactly what Mr Fera indicated – it is part of a resolution that is beingworked out between Mr Fera and the Crown Attorney’s office. [36] I also note that Mr Deng could more easily access, according to Mr Fera, the PARS program if a judicial order is made.However, Mr Fera also stated that Mr Deng can access the program without a judicial order. As well, Mr Deng will have to pay a fee toattend whether a judicial order existed or not.

Mr Fera was unsure whether the fee would be higher without a judicial order. 5.5 Does the Joint Submission Meet the Public Interest Test? [37] From the Bail Experts Table recommendations, Justice Trotter’s comments (The Law of Bail in Canada) and the decisions ofJustices Corbett, Charron, Sosna, Veit and Lamer, I accept that a bail condition only becomes ‘reasonable’ when it is imposed to giveeffect to the criteria for release. In other words the condition is ‘necessary’ to justify that the defendant need not be detained in custodyuntil his trial.

In my view, unless a condition is necessary then it cannot be considered to be desirable by the presiding justice. [38] There is no basis in law to suggest that without the addition of the PARS condition that Mr Deng would have to be detainedin custody. Neither counsel made any reference to such a possibility if I did not add the condition. As a result, I am satisfied the conditionhas no purpose related to the primary, secondary or tertiary grounds of s. 515(10) and is therefore not necessary.

[39] As Sosna J held in A.(D). without a ‘related purpose which justifies (its) imposition then the term is ‘unreasonable and thusarbitrary. Justice Sosna then added that ‘Imposing unreasonable or arbitrary terms would bring the administration of justice intodisrepute’. [40] I find that the PARS condition does not have a related purpose related to s. 515(10) of the Criminal Code. Its sole purpose isto assist with the resolution of Mr Deng’s matters. As per Sosna J, the PARS condition having no purpose related to s. 515(10) isunreasonable, arbitrary and unnecessary. As well, I do not find it to be desirable.

Its imposition would bring the administration of justiceinto disrepute. [41] There is also a Charter component to the analysis of whether the addition of the PARS condition would amount to reasonablebail. [42] I do not preside as a court of competent jurisdiction for Charter remedies as a bail court justice. Nonetheless, I am compelledto be aware of the following Charter section, among others, while considering bail matters: It states: 11. Any person charged with an offence has the right (

e) not to be denied reasonable bail without just cause; Canadian Charter of Rights and Freedoms, April 17, 1982 [43] The test for 'reasonable bail' was set out by the Supreme Court: "Reasonable bail" refers to the terms of bail. Thus the quantum of bail and the restrictions imposed on the accused's liberty while on bailmust be "reasonable". R. v.

Pearson (SCC), [1992] 3 S.C.R. 665 at para 46 [44] As previously noted, a condition is only reasonable when it gives effect to the criteria for release under s. 515(10) and as Ihave already decided, the PARS condition does not meet this standard. [45] As the PARS condition is unnecessary, unreasonable and undesirable its addition would then make the bail orderunreasonable contrary to Pearson. An unreasonable bail order would have serious potential implications to Mr Deng’s s. 11(

e) Charterrights. Imposing an unreasonable bail order would not only undermine Charter values but it would consequently bring the administrationof justice into disrepute. [46] Therefore, the first part of the public interest test (bringing the administration of justice into disrepute) for the rejection of ajoint submission applies and the test has been met. [47] I now consider the second part of the test which is whether the PARS condition is ‘otherwise contrary to the public interest’. [48] A reasonable and informed person would additionally be concerned about the addition of the PARS condition for thefollowing reasons:

a) If Mr Deng fails to attend and/or complete the PARS program he could face criminal charges. This amounts to criminalizingbehaviour that otherwise would not attract the attention of the authorities. There is no legal basis for doing so under s. 515 of theCriminal Code.

b) If charged, Mr Deng’s liberty could be at risk.

c) A charge of breach of recognizance under s. 145(3) of the Criminal Code would be yet another ‘administration of justice’ chargewhich must be processed and dealt with by the courts. Additional police, administrative, Crown, Defence and judicial resources wouldneed to be expended to deal with such a charge. Mr Deng would further need to expend personal financial resources if he chooses to havelegal counsel represent him on the charge.

d) If found guilty of the charge, Mr Deng’s criminal record would reflect the conviction. This may have long term negative consequencesfor him on multiple fronts.

e) According to Mr Fera, Mr Deng does not need a judicial order to attend PARS. It appears that he may benefit from a lower fee if ajudicial order is made. It is unclear whether there is a taxpayer funded subsidy towards the fee that Mr Deng would enjoy if thecondition was part of his bail order. If Mr Deng is to gain a favourable resolution by taking PARS then it should not be at the expense ofthe public purse. [49] That reasonable and informed person would see no principled or legal basis for the PARS condition.

Rather she or he wouldconsider its addition to be an unnecessary judicial order with such significant costs, ramifications and potentially long term consequencesas to be an inappropriate use of the judicial process. Its imposition would amount to a ‘break down in the proper functioning of thecriminal justice system’. [50] Therefore, the addition of the PARS condition in Mr Deng’s bail would be ‘contrary to the public interest’. 6) THE SUPREME COURT’S DECISION IN ANTIC [51] It is a rare experience for a judicial officer as she or he is preparing a decision, to receive timely guidance from the Supreme

Court of Canada but that is exactly what has happened in this matter. On 1 June 2017, as I was preparing to release my original decision, the Supreme Court’s decision in R v Antic landed in my email Inbox. This decision provides the final word on the law on important areas of bail. Multiple points made in Antic directly impact on the issues surrounding the PARS condition. As a result, I have now incorporated salient points from Antic into my decision .

Those points include the Supreme Court’s views on reasonable bail, the criteria for conditions under s. 515(4) and the discretion of a bail court justice to reject joint submissions. My analysis of these points from Antic follows. 6.1 Antic and Reasonable Bail [ 52 ] In Antic , Wagner J, directs bail court justices that a form of release under s. 515(2) or terms of release under s. 515(4) may be unreasonable and as a result, unconstitutional. The Court held:

(2) Right to “Reasonable Bail” [ 41 ] In contrast to the first aspect of the s. 11 (

e) right, the right to reasonable bail relates to the terms of bail, including the “quantum of any monetary component and other . . . restrictions” that are imposed on the accused for the release period: Hall , at para. 16. The right not to be denied reasonable bail without just cause protects accused persons from conditions and forms of release that are unreasonable. The French version of s. 11 (

e) bears this out: a person charged with an offence has the right to a release “ assortie d’un cautionnement raisonnable ” (“in conjunction with reasonable bail”). [ 42 ] It must be borne in mind that s. 515(2) of the Code establishes the only legal forms of pre-trial release, such as a surety release or release with a recognizance. But it is the justice or judge who ultimately decides which form of release to order in a given case, and he or she also has discretion under s. 515(4) of the Code to impose terms that are specific to the circumstances of the accused.

Both a legislated form of release and the specific terms of release ordered by a justice or a judge can be unreasonable and, as a result, unconstitutional. R. v. Antic, 2017 SCC 27 , Supreme Court of Canada, Wagner J, paras 41, 42 6.2 Antic and the Criteria for Conditions under s. 515(4) [ 53 ] As well, Wagner J, defined the principles and guidelines which must be applied to justify a condition under s. 515(4). The Court held: [ 67 ] Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing: (

b) Section 11 (

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

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. [5] They must not be imposed to change an accused person’s behaviour or to punish an accused person. R. v. Antic , 2017 SCC 27 , Supreme Court of Canada, Wagner J, para 67 6.3 Antic and Joint Submissions [ 54 ] The Antic decision also established that a bail court justice has the discretion to reject a joint proposal on bail.

As well, it is not acceptable for forms of release or conditions to be imposed on a defendant ‘on consent’ unless the statutory criteria for detention under s. 515(10) exist. The Court held: [ 68 ] Of course, it often happens that the Crown and the accused negotiate a plan of release and present it on consent. Consent release is an efficient method of achieving the release of an accused, and the principles and guidelines outlined above do not apply strictly to consent release plans.

Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release. R. v. Antic , 2017 SCC 27 , Supreme Court of Canada, Wagner J, para 68 6.4 Antic and the PARS condition [ 55 ] I found above that the lack of the PARS condition in Mr Deng’s bail order would not justify his detention, therefore the imposition of that condition does not meet any of the tests under s. 515(10) (a)-(c). As a result, it is unnecessary.

According to Antic this makes the condition unreasonable and its addition would make the bail order unconstitutional. [ 56 ] As the PARS condition is not ‘premised on the statutory criteria for detention and the legal framework for release’, Antic provides the discretion for the rejection of the joint submission to add the condition. 7) DECISION [ 57 ] While I have given considerable deference to the joint submission of counsel, nonetheless I find that the addition of the PARS condition to Mr Deng’s judicial interim release order would breach both branches of the public interest test set out by the Supreme

Court in Anthony-Cook . I therefore rejected the joint submission of counsel. [ 58 ] If I am in error in rejecting the joint submission then, as decided in Ford , I exercised my residual discretion not to impose the proposed condition under s. 515.1. [ 59 ] Finally, the Antic analysis provides the basis and the discretion for my rejection of the PARS condition as an unnecessary and unreasonable condition. Therefore, according to Antic the addition of this condition would make Mr Deng’s bail, unconstitutional. [ 60 ] In all the circumstances, I declined to impose the condition. Released: 6 June 2017 Signed: “Justice of the Peace M A Cuthbertson ”