R. v. Massan, 2012 MBCA 26

Citation: R. v. Massan, 2012 MBCA 26 Date: 20120314 Docket: AR 11-30-07590 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. F. Wiebe HER MAJESTY THE QUEEN ) for the Applicant ) Respondent ) A. Y. Kotler ) for the Respondent - and - ) ) ) Chambers motion heard: DONALD TIMOTHY MASSAN ) July 28, 2011 ) (Accused) Applicant ) Decision pronounced: ) March 14, 2012 MARC M. MONNIN J.A. 1 The accused is charged with second degree murder. He applied for judicial interim release before a judge of the Court of Queen’s Bench which was denied.

He moved before this court under s. 680 of the Criminal Code (the Code ) for review of the decision. 2 Upon his original notice of application for direction, the accused adjourned the matter so that he could provide fresh evidence in respect to a plan for release which would see him released to Teen Challenge, an organization which assists young offenders. At the next hearing before a judge of this court, the matter was further adjourned so that counsel could comply with the requirements of s. 680 , namely a request to the Chief Justice or his designate for directions in accordance with s. 680 .

At that time, defence counsel advised that she was relying upon a material change of circumstances as the primary basis for the accused’s application for review.

The jurisdiction of this court to deal with that ground was raised with her. 3 When the matter came on before me, counsel for the accused had filed a motions brief raising not only a request for the court to hear evidence of a material change of circumstances, namely, the availability of a bail plan providing for the release of the accused to Teen Challenge, but also the correctness of the bail judge’s decision. 4 By the time of the hearing, I had been assigned by the Chief Justice to conduct the application as provided for by s. 680 .

I was advised by counsel at the hearing that they both agreed to my hearing the matter as a single judge if I so directed and that the matter need not be referred to a panel. They also agreed that both the leave to present the application and the application itself could proceed together. Based upon the consent of counsel, I agreed to do so. Bail Decision 5 The Crown’s position before the bail judge was that it has a strong case against the accused. The charges arise from an incident outside a bar in Thompson, Manitoba where the victim was stomped to death.

The accused, or someone arguably fitting his description and wearing distinctive clothing, was caught on camera entering the bar that evening. In addition, the Crown claimed to have three independent witnesses placing the accused at the scene of the beating outside of the bar wearing the same distinctive clothing which he appears to be wearing on the videotape. 6 In addition, the Crown noted that the accused was already on release for an indictable offence, namely, the possession of a weapon, and, that given the reverse onus, there were valid grounds upon which to detain the accused.

The Crown also challenged the appropriateness of the bail plan presented at the original bail hearing whereby the accused would be released to the supervision of his family. 7 The defence challenged the strength of the Crown’s case, arguing that the video was taken inside and not outside the

location where the altercation occurred. Defence counsel argued that none of the witnesses knew the accused personally and could not directly identify him as the individual involved in the attack. The defence also pointed out inconsistencies in the description given by two of the witnesses, both young boys skateboarding in the area. Further, counsel highlighted some discrepancies in the manner by which one of the boys identified the accused when police used a photo pack.

Finally, it was noted that the clothing description provided by the witnesses was inconsistent and that no usable DNA came back from the clothing which the accused was wearing when he was arrested. 8 The bail judge, while acknowledging some of the defence’s arguments on the strength of the Crown’s case, was of the view that the evidence placing the accused in the area at the time of the incident with clothing similar to that described by some of the witnesses, gave the Crown a strong case of identification of the accused as the attacker. She recognized an escalation of violent behavior over the last few years.

Furthermore, given that it was clearly made out that the accused had a substance abuse problem, he would pose a danger to reoffend if released. She raised the possibility of a residential treatment program of a more prolonged nature if release was ever going to be considered, but expressed the view that the proposed release to the family with a possibility of an assessment by an alcohol treatment organization was insufficient.

She concluded that she was not satisfied that he had shown cause why his detention was not justified and denied his release on the secondary ground making no comment with respect to the tertiary ground. Review Under s. 680 of the Criminal Code 9 The charge being one of murder, jurisdiction over the trial falls to the Queen’s Bench pursuant to s. 469 of the Code . Applications for bail for s. 469 offences proceed under s. 522 before a judge of a superior court of criminal jurisdiction in Manitoba.

In Manitoba, that is the Court of Queen’ s Bench (although the Court of Appeal, also a superior court of criminal jurisdiction, has concurrent jurisdiction).

Section 522 reads as follows: 522

(1) Where an accused is charged with an offence listed in

section 469 , no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.

(2) Where an accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). . . . . .

(4) An order made under this

section is not subject to review, except as provided in

section 680. 10 As noted, an order made under s. 522 is only subject to review as provided for in s. 680: Review by court of appeal 680

(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made. Single judge acting

(2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court. Enforcement of decision

(3) A decision as varied or substituted under this

section shall have effect and may be enforced in all respects as though it were thedecision originally made. 11 This application raises three procedural questions before I can consider the merits, namely:

(1) What is the test to be applied to determine whether a direction should be granted for a review under s. 680?

(2) What is the standard of review to be applied?

(3) Is the review only of the decision of the s. 522 judge or can the reviewing judge or panel consider a material change ofcircumstances, and, if so, to what extent? Test for Granting Review 12 As noted by The Honourable Mr. Justice Gary T.

Trotter, The Law of Bail in Canada, 3d ed. (Toronto: ThomsonReuters Canada Limited, 2010) (at p. 8-20): “The criteria to be applied in determining whether a review [under s. 680] should bedirected has received a good deal of attention in the case law.” 13 One of the original cases to consider the test to be applied under s. 680 (or its predecessor s. 608) on the initial requestfor directions is that of R. v.

Moore (1979), (NS CA), 49 C.C.C. (2d) 78 (N.S.C.A.), where Chief Justice MacKeiganset a very low threshold, namely, that the request for review should only be refused if “the applicant would have no hope of success on areview of the record” (at p. 79). This formulation found favour with this court in cases over the years including United States of Americav. Andrews (1991), (MB CA), 76 Man.R. (2d) 41; R. v. Gonzales (R.C.), 2005 MBCA 45, 192 Man.R. (2d) 167; andR. v. L.I.H., 2001 MBCA 92, 156 Man.R. (2d) 212. 14 That test was modified in R. v.

Cooper (A.R.) (1999), 1999 ABCA 249 , 237 A.R. 355, a decision of JusticeBerger of the Alberta Court of Appeal. In Cooper, Berger J.A. reviewed the various judicial pronouncements to that time and concludedthat the Alberta courts apply the somewhat higher standard of “reasonable prospect of success.” However, in his view, the standard ofreview employed on the review process should have a bearing on the test governing the initial request. He found conflicting decisionsacross the country on the appropriate standard of review.

He concluded that both the “reasonable prospect” and “some hope of success”tests were insufficient and not in keeping with the gatekeeper role of the Chief Justice or his delegate on the determination of whether therequest should be allowed to proceed. He concluded that a better approach was to determine whether or not there was “arguable merit”to the applicant’s position. 15 Finally, he commented on the need for this initial determination by the Chief Justice or his delegate to be of agatekeeper role. 16 In R. v.

Oliver (J.), 2008 NLCA 18, 287 Nfld. & P.E.I.R. 118, Chief Justice Wells had an opportunity to comment onthe test after reviewing decisions from his own jurisdiction. He noted there was a wide difference of points of view expressed by courtsof appeal throughout the country as to the circumstances in which intervention by an appellate court would be justified.

He noted that“[w]hatever scope of review will ultimately be approved, as the appropriate course to be followed by appellate courts carrying outreviews of judicial interim release decisions, I am of the view that it is not to be directly applied to the discretion conferred on chiefjustices by

section 680” (at para. 10). He then went on to indicate his preference for the approach taken by Berger J.A. in Cooper,namely, the initial test should be one of “arguable merit.” He then stated (at para. 11): …. At this stage, I should determine whether or not to direct review on the basis of whether it can credibly be argued that a panel of thisCourt could conclude that Mr. Oliver should not have been granted judicial interim release. I should not usurp the function of the panelby expressing a view, at this stage, as to whether or not there has been reviewable error on the part of the Trial Division judge.

That is forthe panel to decide. I should direct review if I am satisfied that a credible argument can be made. I should refuse review if I conclude thatthe arguments, which the Crown has indicated it proposes to make, do not appear to be credibly arguable, or appear to be frivolous. 17 In the most recent decision of R. v.

Lewis (C.S.), 2010 SKCA 54, 350 Sask.R. 241, Chief Justice Klebuc reviewed thedecisions from across the country and, concluded that (at para. 5): Canadian Courts of Appeal have not settled on a common test to be met by an applicant who seeks a direction pursuant to s. 680(1).Rather, the threshold requirements range from a very low threshold to one requiring a submission of reasonable merit. …. 18 He concluded that the arguable merit test found in Cooper, and applied in Oliver, was the preferred test as it “gives realmeaning to the gatekeeper function contemplated by s. 680(1), while allowing the incarcerated accused reasonable but not unfetteredaccess to a review of his or her detention by a Court of Appeal” (at para. 9).

19 While applications under s. 680 or its predecessor in our court were originally dealt with on a standard of “no hope ofsuccess” on a review of the record as set out in Moore (see Andrews and R. v. Khan (M.A.) (1998), (MB CA), 131Man.R. (2d) 101), since the decision in Cooper, the Chief Justice or the judge designated by him to deal with the initial application havegenerally followed Cooper or at least made reference to it (see L.I.H.; Gonzales; R. v. Trout, 2006 MBCA 70 (QL); and R. v.

Kennedy,2008 MBCA 25 (QL)). 20 After review of the jurisprudence, and more particularly cases arising in Manitoba, I have concluded that the approachrequiring that there be issues of arguable merit advanced in order to grant a request for a review is the preferred one. I agree that thearguable merit test allows the Chief Justice or delegate to perform the gatekeeper role while not imposing such a high standard that itwould place too great an impediment to have meritorious cases brought forward as required.

The latter has importance particularly forapplications arising under s. 522 as s. 680 is the only manner by which such a decision can be reviewed. Scope of Review Under s. 680 21 The nature of review under s. 680 has been a source of much appellate comment and the law is unsettled. In Trotter,the author discusses the different approaches: namely, whether the review process is an ordinary appeal, a de novo hearing or a blend orhybrid of the two approaches.

The author comments on the fact that one of the difficulties in choosing one approach over the other isthat s. 680 deals with review of bail decisions at different times during the trial process (at pp. 8-27-8-28): The task of presenting a preferred approach to s. 680 is made difficult by the multiplicity of its application. It is arguable that there is astronger case for a more robust scope of review prior to trial.

For the sake of coherence and consistency, unless there is a good reason toconclude otherwise, the nature and scope of review under s. 680 should mirror ss. 520 and 521. …. 22 Many courts of appeal speak of s. 680 as being an appellate jurisdiction. In R. v.

Daniels (1997), (ON CA), 35 O.R. (3d) 737 (C.A.), Justice Doherty described it as follows (although speaking of a review of an order made under s. 679,for bail pending appeal) (at pp. 746-47): The language of s. 680 indicates to me that it serves an appellate function in that it provides a means for an applicant to challenge thevalidity of an order made under s. 679. The sections calls for a review of “the decision” of the judge who made the s. 679 order and nota first instance assessment of the applicant’s right to bail. In R. v.

West, (ON CA), [1973] 1 O.R. 211 at pp. 216-17, 9C.C.C. (2d) 369 at pp. 374-75 (C.A.), the s. 680 review was described as “an ordinary appeal” from the initial bail order. Whilesubsequent decisions have perhaps modified the standard of review called for under s. 680 (e.g. see R. v. Fothergill (1982), (ON CA), 27 C.R. (3d) 191 (Ont. C.A.)), none have questioned the appellate nature of that review. The broad remedial powers found in s. 680(1) do not suggest that the review provided by s. 680 is other than an appellate review. Thepower to “vary” in s. 680(1)(

a) refers to the reviewing court’s power to make the same type of order as was made at the initial hearingbut to vary the specifics of that order. For example, the reviewing court could hold that an appellant was properly released on bail butalter the conditions of that release. The power to “substitute” found in s. 680(1)(

b) recognizes that the reviewing court may make anentirely different order than that made on the initial bail application. For example, when the reviewing court determines that bail shouldhave been refused, it substitutes an order dismissing the application for bail for the initial order granting bail. It is noteworthy that whiles. 680(1)(

b) gives the reviewing court a wide authority, it still directs that the court make the order which should have been made on thes. 679 application. The broad remedial powers found in s. 680(1) arm the reviewing court with the authority to make any order whichcould have been made on the initial application. Arguably those with powers imply a correctness standard on review. They do not,however, alter the appellate nature of the process contemplated by s. 680: R. v.

M. (S.H.), (SCC), [1989] 2 S.C.R. 446 atpp. 464-66, 50 C.C.C. (3d) 503 at pp. 548-49. 23 Cases from British Columbia recognize a restriction on the role of the appellate court. In R. v. Wu (B.Q.) (1998), 117B.C.A.C. 305, Justice Cumming stated as follows (at para. 6): A review under s. 680(1) of the Criminal Code is in the nature of an appeal on the record and not a hearing de novo. While thereviewing court exercises an independent discretion and may substitute its own opinion for that of the single judge under review, it mustbase its review on facts found by the single judge’s evaluation of the evidence.

It is not necessary that a reviewing court, beforeintervening, come to a conclusion that the decision of the single judge under review was unreasonable or that an error in principle wascommitted. See R. v. D.S.H. (1991), (BC CA), 2 B.C.A.C. 309; 5 W.A.C. 309 (C.A.). 24 Wu was followed in R. v. Salim, 2007 BCCA 44 (QL), Ryan J.A. for the court stated as follows (at para. 4):

The jurisprudence of this Court (R. v. Wu (1998), 117 BCAC 305; R. v. JWR (1999), 1999 BCCA 574 , 129 BCAC 232)dictates that on such a review this Court is bound by the findings of fact by the Supreme Court of Justice, but we are free to substitute ourown conclusions for those of the Supreme Court Justice if we are of the view that the evidence meets the appropriate statutory criteria. 25 There appears to be some merit to such an approach.

There is no reason why, on a proceeding under s. 680, a judge ofthis court or a panel is in a better situation to assess the evidence to reach conclusions on findings of fact except for the same reasons thatit is appropriate to do so on an ordinary appeal. 26 In this jurisdiction, the recent case of R. v. Le (T.D.), 2006 MBCA 68, 205 Man.R. (2d) 41, dealt with the appropriatetest for review of bail decisions.

In that case, on an appeal from an order made under s. 522, Hamilton J.A., for the court, stated asfollows with respect to the standard of review (at para. 9): As is evident from the foregoing, the standard of review does not demand that this court defer to the judge of first instance. Rather, thestandard allows this court to substitute its own discretion for that of the judge of first instance, after “due regard” to the decision of thejudge. 27 Following the earlier decision of Matas J.A. in R. v.

Carrier (1979), (MB CA), 2 Man.R. (2d) 168,the court concluded that, while due consideration must be given to the original order, there is room for an independent discretion to beexercised by the reviewing court. 28 In

summary, my review of the jurisprudence leads me to the conclusion that, while s. 680 confirms an ordinaryappellate jurisdiction, nonetheless it is a broad jurisdiction to be exercised not necessarily with the same amount of deference applied inthe usual appellate forum. Therefore, while some courts have adopted correctness as the appropriate standard of review under s. 680,that has not been the case in Manitoba.

Material Change of Circumstance 29 This leads me to the third issue raised by this application, namely whether, given the different views as to the scope ofreview, there is an ability for an appellate court to proceed to hear an argument based upon a material change of circumstances betweenthe initial bail proceeding and the hearing of the s. 680 review.

Such material change may occur for a number of reasons such as wherethe status of the accused’s charges change after the original bail application or where he can put together a more compelling bail planthan he did before the bail judge. 30 The issue has procedural importance. There is a line of authorities which holds that, since a s. 680 review is of anappellate nature, the court of appeal has no jurisdiction under that

section to consider a request to review a decision under s. 522 solely onthe grounds of a change of circumstances. In R. v.

Turner (G.J.) (1999), (NL CA), 171 Nfld. & P.E.I.R. 333, WellsJ.A. (as he then was), stated as follows (at para. 28): For all of the reasons outlined above I would hold that, where the validity of a prior order for release or detention is not questioned, notonly does s. 680 not require that a fresh application, based solely on changed circumstances, be heard by the court of appeal, but in factthe jurisdiction conferred by s. 680 is not broad enough to permit the hearing of such an application by the court of appeal.

If the court ofappeal cannot directly hear such a “fresh application” based solely on changed circumstances, then it cannot do so indirectly, under theguise of it being an application for review of a previous order when in fact the applicant acknowledges the propriety and validity of thatprevious order and frankly admits that the application deals solely with changed circumstances. His reasoning and conclusions on that issue were concurred in by the panel.

It should be noted that Turner dealt with an application forreview of a decision reached under s. 523 dealing with an accused who was never taken into custody and had been released under certainconditions. 31 Turner was cited with approval by the British Columbia Court of Appeal in R. v. Dempsey (P.), 2001 BCCA 122, 151B.C.A.C. 272, where Lambert J.A. led the court in declining jurisdiction where the nature of the review was based entirely on a materialchange in circumstances. 32 However, in R. v. Hardiman (C.L.), 2003 NSCA 17, 211 N.S.R. (2d) 358, Cromwell J.A. (as he then was) questionedthe reasoning in Turner.

The facts in Hardiman were that the accused was charged with a s. 469 offence. She sought bail and, with theCrown’s consent, was released upon a recognizance with certain conditions. She sought to remove those conditions, but the Crown didnot consent, a requirement under s. 523(2) where the application is made before trial to a judge who is not the trial judge. The bail judgeheld that he did not have jurisdiction to grant a variation of the conditions.

The accused sought a review of the matter under s. 680pursuant to a direction which was granted by the Chief Justice. 33 In Hardiman, Cromwell J.A. noted that a number of cases have held that successive applications based on a change ofcircumstances are permissible both before trial and pending appeal (see L.I.H.). He found that both release and terms of release are

reviewable under s. 680. He supported a broad approach to the scope of review as follows (at paras. 21-22): The Crown’s second submission is more substantial and is this. A review under s. 680 is just that, not a de novo hearing. It is, therefore,not appropriate to entertain a s. 680 review where, as here, the propriety of the original consent order is not challenged but where theaccused seeks to vary the terms of release based on changed circumstances. While there is authority supporting a rather narrow approach to the scope of a s. 680 review, I would reject this submission. In my view,both the text of the

section and the balance of the authorities support a broader approach. 34 In his view, s. 680 could encompass a review of an original order which has been overtaken by a material change ofcircumstances. He stated as follows (at para. 28): There is authority in Nova Scotia, Ontario, Alberta and Manitoba for the view that a s. 680 review, while fundamentally in the nature ofan appeal, is nonetheless broad enough to permit review where the original order has been overtaken by material change of circumstance:R. v F.F.B. (1992), (NS CA), 73 C.C.C. (3d) 303 (C.A.), at 307-308; R. v.

Daniels, supra, at para. 29; R. v.D’Agostino [(1998), 1998 ABCA 202 , 219 A.R. 42], at para. 11; R. v. Paupanekis, [1996] M.J. No. 9 (C.A.). There are alsostatements in the cases to the effect that the Court on a s. 680 review has a wide discretion to make its own assessment of what the properorder should be and that there is no onus on the accused to demonstrate error on the part of the judge of first instance: R. v. Quinton(Y.), [1993] A.Q. No 1661 (Qué. C.A.), at paras. 12 and 13; R. v. Fothergill (1982), (ON CA), 27 C.R. (3d) 191(Ont. C.A.), at 192.

In my respectful view, the authorities to which I referred in this paragraph are soundly based on the text of s. 680read in context and in light of the purpose of the legislative scheme for bail and of the constitutional right to reasonable bail. 35 While Turner was distinguished in part on the basis that it dealt with a detained accused who had the ability to seekrelease in another procedure on the basis of changed circumstances, Cromwell J.A. did not take a narrow

interpretation of the scope ofreview under s. 680, which is arguably the basis upon which Turner was decided. Instead he stated as follows (at para. 32): To the extent that Dempsey and Turner may be taken to hold that there is no jurisdiction under s. 680 to review a release order wherethe ground of review is solely on the basis of changed circumstances, I respectfully disagree. I accept, however, the general propositionthat a s. 680 review should, as a matter of discretion, be refused in these circumstances where the accused has a right to seek variation ofthe conditions of release in a more appropriate forum.

I do not accept, however, that the broad and rather imprecise language of s. 680 ofthe Code compels us to hold that one judge may make a release order which no other judge is allowed to vary for months and even yearswithout the consent of the Crown. 36 While Hardiman was a case where no other method of review was available to the accused since she could not makeanother application before the original bail court, the reasoning suggests a broader approach to s. 680 and a jurisdiction to review wherethe original order under review is not challenged. 37 In

summary, from the jurisprudence I have cited, I would come to the following conclusions:

a) There is jurisdiction for an appellate court under s. 680 to review an order under s. 522 where one or even the only ground ofappeal is a material change of circumstances and the correctness of the original order is not being challenged.

b) However, where the sole ground for the review is changed circumstances, while the court does have jurisdiction, the practicehas developed, supported by the concept of judicial efficiency, to have the matter dealt with by a judge of the court that granted orrefused the original bail, preferably the same judge (see Daniels). There is opportunity for the judge conducting the assessment ofwhether the matter should proceed for review to refer the matter back at that stage (see L.I.H.).

c) Any request for the appellate court to exercise its discretion to review the order of the bail court based upon a change incircumstances must be supported by evidence presented before the appellate court according to the usual rules. Analysis 38 The thrust of the accused’s application is comprised of two aspects. The first being that the judge erred in her originaldenial of judicial interim release by overemphasizing the strength of the Crown’s identification evidence. The argument on that aspect ofthe judge’s decision was two-fold.

Namely, that the evidence that was before her did not allow her to reach that conclusion. Andsecondly, further evidence, which was now available, raised concerns about of the identification evidence. 39 The second aspect of the accused’s application related to an argument that material changes in circumstances existedsince the original application with respect to the availability of a bail plan addressing the concern raised about the accused being able to

deal with his alcohol abuse issues if released. Further evidence was presented before me to that effect. 40 Had I to exercise my gatekeeper role solely upon the first argument advanced by counsel for the applicant, namely that the judge erred in her assessment of the strength of the Crown’s case due to a misapprehension as to the identification evidence, I would have dismissed the application for review.

In my view, the bail judge properly exercised her discretion based upon the information before her placing the accused at the scene together with independent witnesses describing an individual corresponding to his physical description and clothing at the time of the beating. She also was justified in her secondary ground concerns with respect to the bail plan. 41 However, the new evidence presented going to the issue of the strength of the identification and the new bail plan would, in my view, raise grounds of arguable merit that the matter should have proceeded to a s. 680 review.

Of note, these are the type of concerns which led Chief Justice Scott in L.I.H. to adjourn the matter so that it could be returned to the original bail judge to consider the new evidence. There is considerable merit to such an approach. However, in this case, I indicated that I would deal with the application and will therefore do so. 42 Defence presented a transcript of the proceedings at the police station of the photo pack session with the two young boys who were witnesses to the assault. The transcript of the session with the second boy had not been disclosed at the time of the hearing before the bail judge.

In it, the witness proceeds through all the photos provided to him without accepting any one as being the assailant, but on a second review selects the photo of the applicant saying that “he looks like the guy because he is big and tall” and indicating that he was not very sure (30 on a scale of 1-100). In my view, this does not significantly diminish the Crown’s case or the ability to rely upon the identification evidence at this stage of the proceedings.

Were it the only evidence tying the accused to the scene and the events matters might be different, but there is other evidence which supports the Crown’s case. I will not go through it in detail as it would not be appropriate to do so in this proceeding. 43 With respect to the bail plan, namely the placement of the accused with Teen Challenge, it goes some distance in addressing the bail judge ’ s concern of the accused’s problem with alcohol, a recurring issue.

I requested and obtained information from defence counsel as to the nature of the residential program provided by Teen Challenge and its level of security as well as the protocols in place in the event of a breach of the conditions of release. 44 With all respect to the program provided by this organization which does an excellent job, I am left with a concern of the potential of reinvolvement of this individual if released.

The bail judge noted that the record demonstrated an “escalation of inappropriate behaviour with respect to this accused over the last few years. ” As well, although not as striking, there is indication of an inability to follow court orders. 45 The nature of the offence and its violence lead me to conclud e that the accused is not a candidate for release.

Therefore, after exercising a fresh discretion based upon on the evidence, including that tendered before me as to the availability of a residential program, in my view he has not met the onus required of him. 46 While I grant leave to have this matter proceed to a review under s. 680 , I deny the application for judicial interim release. J.A.