R. v. Reddick, 2016 NSSC 228

SUPREME COURT OF Nova Scotia Citation: R. v. Reddick, 2016 NSSC 228 Date: 2016-08-31 Docket: Pictou , No. 448242 Registry: Pictou Between: HER MAJESTY THE QUEEN v. JOSEPH NOLAN REDDICK Library Sheet Judge: The Honourable Justice Scaravelli Decision Date: August 31 st , 2016 Subject: Bail Review –

Section 521 Criminal Code Bail Révocation – Section 524(8) Criminal Code

Summary: The accused had been committed for trial before the Supreme Court under a 12-count indictment. The trial is scheduled for December 2016. He was released on these charges on a recognizance granted by Atwood J.P.C. on 28 September 2015. While on bail on those charges, the accused was charged in May 2016 with new charges pursuant to sections 145(3)(

a) CC (breach of recognizance or undertaking), 264.1(1)(

a) CC (uttering threats of death or bodily harm), and 423.1(3) CC (intimidation of a justice system participant). These charges relate to an incident that allegedly occurred on 1 May. He is scheduled for trial in Provincial Court on these charges in September 2016. The crown brought two applications: (1) an application to review a bail decision rendered by Atwood J.P.C. on 9 May 2016, pursuant to

section 521 of the Criminal Code , and (2) an application to revoke and cancel the Recognizance of 28 September 2015, pursuant to section 524(8) of the Criminal Code . Issue: 1. Did the judge error in granting bail on May 9 th , 2016? 2. Should the court revoke and cancel the recognizance of September 28 th , 2015? Result: The bail judge erred in granting bail by incorrectly applying the reverse onus imposed by section 515(6) CC . Further the judge’s consideration of section 515(10) (

b) and (

c) CC was insufficient . Bail granted September 2105 is revoked on the basis there are reasonable grounds to believe that the accused committed an indictable offence while on a recognizance. SUPREME COURT OF Nova Scotia Citation: R. v. Reddick, 2016 NSSC 228 Date: 2016-08-31

Docket: Pictou , No. 448242 Registry: Pictou Between: HER MAJESTY THE QUEEN v. JOSEPH NOLAN REDDICK Judge: The Honourable Justice N. M. Scaravelli Hearing Date: Decision: July 22 nd , 2016 August 31st, 2016 Counsel: Patrick Young, for the Provincial Crown Douglas Lloy, Q.C. for the Defendant By the Court: [ 1 ] The accused has been committed for trial before the Supreme Court under a 12-count indictment. The trial is scheduled for December 2016. He was released on these charges on a recognizance granted by Atwood J.P.C. on 28 th September 2015. While on bail on those charges, the accused was charged in May 2016 with new charges pursuant to sections 145(3)(

a) CC (breach of recognizance or undertaking), 264.1(1)(

a) CC (uttering threats of death or bodily harm), and 423.1(3) CC (intimidation of a justice system participant). These charges relate to an incident that allegedly occurred on 1 st May. He is scheduled for trial in Provincial Court on these charges in September 2016. [ 2 ] The crown has brought two applications: (1) an application to review a bail decision rendered by Atwood J.P.C. on 9 th May 2016, pursuant to

section 521 of the Criminal Code , and (2) an application to revoke and cancel the recognizance of 28 September 2015, pursuant to section 524(8) of the Criminal Code . [ 3 ] The interaction of the two bail orders (September 2015 and May 2016) is somewhat novel. If the court allows the review of the 2016 order under

section 521 CC , the accused would be remanded until trial in September 2016 on the charges pending in Provincial Court. If the 2015 bail order is also revoked (under

section 524 CC ), the accused would be remanded until the Supreme Court trial in December. If the 2015 order is not revoked, but the 2016 order was revoked, the accused would be released after the September trial (unless he were to be sentenced to imprisonment). If the 2015 order was revoked, but the 2016 order was not revoked, he would remanded until the December trial. [ 4 ] In my view, the bail judge erred in several respects. While he acknowledged the reverse onus imposed by section 515(6) CC , his reasons do not suggest he actually applied it.

Rather, the reasons indicate that the bail judge was working on the premise that custody was best avoided, not least to the alleged general inefficacy of remand. The reasons also indicate that the judge’s consideration of sections 515(10)(

b) and (

c) CC was insufficient; the treatment of evidence appears highly selective, to the point that it is difficult to argue that the judge considered all the relevant factors. It is also impossible to wave away the judge’s reliance on undisclosed social

science research about the bail system. Finally, I believe there is a basis to revoke the September 2015 recognizance under section 524(8)(

b) CC on the basis that there are reasonable grounds to believe that the accused committed an indictable offence while on arecognizance. ANALYSIS May 2016 Bail Order Nature and Standard of Review Under

Section 521 [5]

Section 521 CC of the Criminal Code permits the court to review a release order made under

section 515 CC. The judge’spowers on the review are described at section 521(8) CC: Evidence and powers of judge on review

(8) On the hearing of an application under this section, the judge may consider (

a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by thejustice, (

b) the exhibits, if any, filed in the proceedings before the justice, and (

c) such additional evidence or exhibits as may be tendered by the prosecutor or the accused, and shall either (

d) dismiss the application, or (

e) if the prosecutor shows cause, allow the application, vacate the order previously made by the justice and make any other orderprovided for in

section 515 that he considers to be warranted. [6] The Supreme Court of Canada recently commented on the reviewing court’s powers in R v St-Cloud 2015 SCC 27, [2015] SCJNo 27, where Wagner J said, for the court: 120 On the basis of the wording of sections. 520 and 521 CC, a comparison with other review provisions and with sentence appeals,and the nature of the decision being reviewed, I conclude that these sections do not confer on the reviewing judge an open-ended powerto review the initial order respecting the detention or release of the accused.

The reviewing judge must therefore determine whether it isappropriate to exercise this power of review. 121 It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise thispower if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevantfactor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decisionsimply because he or she would have weighed the relevant factors differently.

I reiterate that the relevant factors are not limited to theones expressly specified in s. 515(10)(

c) CC. Finally, where new evidence is submitted by the accused or the prosecutor as permitted byss. 520 and 521 CC., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in thecircumstances of the case. [Emphasis added.] [7] While this may indicate a correctness standard for matters of law, it by no means supports a general standard of correctness onall bail reviews. A line of Nova Scotia cases have addressed this point.

In R v Marsman (1994) (NS SC), 140 NSR(2d) 383, [1994] NSJ No 627 (SC), Saunders J (as he then was) said: the crown may meet the burden by showing either that the judge of the first instance made a manifest, in other words, clearlydemonstrable error in his or her appreciation of the evidence, or made an error in principle in applying the provisions of the CriminalCode which significantly affected the outcome of the initial application. [8] Cacchione J discussed the nature of bail review in R v Gobeil, [1997] N.S.J. No. 592 (SC): 5 … bail review hearings are what can be considered hybrid hearings.

They are neither an appeal by way of a de novo hearing, nor arethey strictly appeals from the detention order or the release order, but a combination of both. The court can consider the evidence led atthe initial hearing, consider any of the new submissions or any new evidence led at the review hearing, and in essence exercise itsdiscretion anew and I think that the case of the Queen v. Carrier (1979), (MB CA), 51 C.C.C. (2d) 307 essentiallysays that.

Parliament intended the review to be conducted with due consideration for the initial order but, depending upon thecircumstances, with an independent discretion to be exercised by a review court. [Emphasis added.] [9] This passage was cited with approval by Beveridge J (as he then was) in R v Charter, 2008 NSSC 299, [2008] NSJ No 442,with the comment that “a bail review hearing is not limited to being an appeal, nor as wide open as a hearing de novo, but a combinationthereof.” In R v Lawrence, 2014 NSSC 451, [2014] N.S.J. No. 681, this court said: 5 In

summary, absent new evidence the purpose of bail review is to review the transcript of evidence, submissions and thedecision of the judge to assess whether there is any error made which justifies setting aside the order. Serious misunderstanding of theevidence or error in law are reversible errors. Where there is new evidence that was not before the bail judge or material change in

circumstances not before the judge, the reviewing court must decide whether it justifies a determination that the bail judge's decision isno longer appropriate. The role of the review court is not to substitute its own opinion for the opinion of the bail judge. [10] The crown says the standard of review in this case is correctness. The accused says error of law is reviewable on a standard ofcorrectness, while errors of fact, or mixed fact and law, would be reviewed on a reasonableness standard.

The accused argues that adecision falling within a range of reasonable outcomes, or which contains a minor error, should not be interfered with. This appears toaccurately capture the approach in the cases, including St-Cloud. The court will have the ability to set an order aside on the basis that itrests on an order of law. Beyond that, the court has a broader power than would be available on an appeal, but the review is not de novo. Improper Judicial Notice [11] I will begin with this issue, as it will be referred to in relation to the other grounds of review.

The bail judge referred to a studycommissioned by Justice Canada, titled Broken Bail in Canada, which appears not to be freely accessible, and which the judge usedwithout notice to the parties. The crown maintains that the judge “relied extensively” on the study in deciding that the accused was amanageable risk in the community. In R v BMS, 2016 NSCA 35, the court said: 16 I turn then to the judge's reliance on his own social science research. There is no indication in the record that he advisedcounsel that he would be conducting and relying on independent research.

No expert was called to introduce material or subjected tocross-examination as to its relevance, value, or weight. 17 A trial judge cannot rely on social studies or literature or scientific reports unless they have been accepted after beingproperly introduced and tested by the parties... 20 … the judge here used the articles he found, without notice or a proper foundation, to decide a central and contentious issue,namely whether there was psychological harm that amounted to a "violent offence".

From that material, he inferred that the appellant'sactions had caused not only the victims who Provided victim impact statements, but all the persons who were photographed, seriouspsychological harm. His use of it to decide a central issue was an error which had a material effect on the sentence he imposed. [12] As such, the crown submits, the judge was in error in relying on the “Broken Bail” report. The defence agrees that he tookjudicial notice of the report, and that it was inadmissible, but denies that it was a prominent consideration, noting that it only occupieseight lines of the transcript.

The defence also says the ideas derived from the report were “common sense propositions” that the bailjudge was entitled to rely on, such as the concept of bail hearings as risk-management tools, and the idea that remand merely defers therisk until the accused is later released. [13] As discussed below, the judge treated the alleged inefficacy of remand in the bail system, and the alleged “broken” bail systemgenerally, as major elements in his decision. There is no basis for this apparent in sections 515(10)(

b) and (

c) CC. Further, this materialcontributed to the failure to apply the reverse onus required by section 515(6) CC. As such, the judge erred by considering this materialwithout notice to counsel. Even had there been notice, its relevance on the application would be questionable. The Reverse Onus [14] Paragraph 515(6)(

c) CC imposes a reverse onus where the accused is charged with certain offences while on bail:

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused's detention in custodyis not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused isdealt with according to law, if the accused is charged… (

c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after beingreleased in respect of another offence pursuant to the Provisions of this Part or

section 679, 680 or 816… [15] The May 2016 charges include a charge under section 145(3) CC. As such, the onus was on the accused to show cause why heshould not be detained. The bail judge acknowledged the reverse onus. The crown says he did not apply it, and in fact required the crownto justify the accused’s detention.

The failure to apply the reverse onus would amount to an error of law. [16] The bail judge cited R v Quinn (1977), (NS SC), 34 NSR (2d) 481 (Co Ct), for the proposition that section515(6) CC does not create a “residual ground” for detention, and therefore detention must still be justified under one of the headings of s515(10). No such argument was raised at the hearing, however.

In Quinn, a magistrate who made the detention order (under apredecessor provision to section 515(6) CC said the determining factor on such an application was “the absolute discretion of thepresiding justice.” On the bail review, Anderson Co Ct J said, [8] Subsection (5.1) has placed the burden on the accused in particular offences enumerated therein, to show cause why hisdetention in custody is not justified. Subsection (7) clearly states that custody of an accused is justified only on two grounds: (

a) toensure his attendance in court and if (

a) is not justified then (

b) as set forth above. [9] The 'notwithstanding any provision of this section', beginning of (5.1) relates to the onus placed on the accused to show causeor be detained in custody. [17] The reviewing judge set aside the detention order on the basis of error of law. The substance of the error appears to have beenthe magistrate’s failure to consider the grounds of detention – ie the equivalent of the current section 515(10) CC – in view of the burdenon the accused. There is nothing particularly controversial in this. [18] The defence implication that the crown regarded section 515(6)(

c) CC as a “residual ground” of detention seems baseless. The

crown explicitly opposed release on the basis of considerations relevant to sections 515(10)(

b) and (

c) CC , and made explicit reference to those provisions in arguing that the accused had not shown cause why he should not be detained. [ 19 ] The crown says the reverse onus obliged the bail judge to consider the accused’s release plan, and its alleged inadequacies, in determining whether the accused had shown cause why he should not be detained. Instead, he effectively decided on the basis that the crown had not shown cause for detention on under section 515(10)(

b) or (

c) CC . The accused replies that the bail judge considered the release plan, reviewed the law, and found a “lack of clarity” in the crown evidence. He then held that it would be possible to impose conditions that would reduce the risk to the public. [ 20 ] It is correct, as the accused submits, that the judge was not required to address every item of evidence. The accused cites the Court of Appeal’s comments on sufficiency of reasons in R v Smith , 2016 NSCA 42 , [2016] NSJ No 196. After reviewing the leading case of R v REM , 2008 SCC 51 , Hamilton JA concluded that a judge is presumed to know the law.

He is not required to reveal each step in his reasoning process. The judge’s reasons, read in the context of the record and the submissions on the live issues in the case, are to show he "seized the substance of the matter". However, the crown has not suggested that the judge was required to examine every item of evidence. [ 21 ] It is necessary to examine the judge’s reasons in some detail at this point.

This analysis will also be relevant on the other issues under review. [ 22 ] After referring to the presumption of innocence and the constitutional entitlement to bail, the bail judge acknowledged the reverse onus. He then cited Quinn for the proposition – not disputed by the crown – that section 515(6) CC did not Provincialide a “residual ground” for detention, and that section 515(10) CC continues to provide the only basis for detention. He went on to refer to sections 515(10)(

b) and (c), without further reference to the onus. With respect to 10(

b) CC , he said: I’ve considered … [s] 515(10)(b) … whether Mr. Reddick’s detention is necessary for the protection or safety of the public, including any victim or witness to the offence. There was no evidence before the Court that there is … there might be anyone at risk under the age of 18 years. I’ve considered all circumstances including any substantial likelihood that Mr. Reddick would, if released from custody, commit a criminal offence or interfere with the administration of justice. [ 23 ] As to section 515(10)(

c) CC , the judge noted that there was no evidence of a firearm being used, and no evidence that the offences charged included a firearm offence or an offence with a minimum sentence of three years or more. The judge acknowledged that the integrity of the bail system is dependent on individuals admitted to bail complying with conditions of bail.

He added, however, that bail violations have different degrees of significance, and observed that “a bail violation might constitute something as technical as being one minute past a curfew, or as substantial as committing an offence that would constitute an offence even if the offender were not governed by the provisions of bail.” [ 24 ] The judge went on to review the evidence – or at least, certain items of evidence. He observed that the accused was visiting Mr. Desmond, who happened to live in a duplex next door to Ms. Hubley and Mr. Kenny, when he had “contact that was inappropriate with Ms. Hubley and Mr.

Kenny.” He went on: What is remarkable to the Court is that as threatening as Mr. Reddick’s behavior is alleged to have been, the evidence that was read in on the record suggested strongly to the Court that it was Mr. Reddick who fled from Mr. Kenny, and it was Ms. Hubley who attempted to block Mr. Reddick and Ms. Hatfield’s departure from the area, leading the Court to conclude that, although it’s not necessary for me to make a finding of fact beyond a reasonable doubt as to the accuracy of Mr. Desmond’s testimony, there is some degree or credence to be applied to Mr. Desmond’s testimony. The fact that Mr.

Desmond might be related to Mr. Reddick, the fact that Mr. Desmond might have a prior record, in my view ought not operate as a badge of incredibility. What I am satisfied is that Mr. Desmond had the opportunity to make pertinent observations. He testified under oath as to what it was he saw. The fact that he might not have approached the police in my view does not operate as a credibility deficit. Mr. Desmond came to Court and told the Court what it was that he claims to have seen. [ 25 ] This was the bail judge’s only comment on the fact situation.

He said nothing about the evidence introduced by the crown, nor did he explain why he preferred Mr. Desmond’s evidence (including his

interpretation of who was at fault for the incident) to the crown evidence. [ 26 ] The judge went on to speak at length about Canada’s allegedly “broken” bail system, referring to a research paper supposedly prepared by the federal Department of Justice: … While the Court does not rely on extrinsic research, it goes without question that creditable statistics gathered by Statistics Canada demonstrate very clearly that, alongside a continuing trend of reduction in crime in Canada including a reduction in serious crime, is a concomitant risk aversion of Courts to admit persons to bail because of the fear of risk to the community.

Bail denial as a risk-management tool is an ineffective one in that bail denial accomplishes only risk deferral. Even if Mr. Reddick were to be found guilty of the charges before the Court, and even if Mr. Reddick were to receive a substantial sentence for the offences before the Court eventually Mr. Reddick would be released. And so bail denial as a risk-management mechanism in this Court’s view is properly regarded as of questionable efficacy. The issue is whether Mr. Reddick’s risk to Mr. Hatfield, Mr. Kenny, and Ms. Hubley. As unclear to the Court as that risk might be, might be managed in the community.

I believe that it can be. I believe that Mr. Reddick has discharged the burden of proof of justifying his

release. [ 27 ] While the judge denied that he was relying on “extrinsic research”, the substance of his reasons leaves no doubt that his reasoning was heavily guided by the Justice Canada report, and by related skepticism about the effectiveness of custody as a risk management tool.

With respect, the report was not properly before the court, and the policy issue of the effectiveness of the bail system should not have been a prime consideration on the application. [ 28 ] The judge went on to comment that he had no jurisdiction to vary the existing bail conditions, as the matters they related to were now before the Supreme Court. He suggested that he would have jurisdiction to detain the accused under

section 524 CC if he found that the accused had violated his bail conditions. However, he said: … But I’m not prepared to make that finding at this stage. Whether Mr. Reddick was impaired by alcohol again, the evidence on that point is not clear to me. And I’m not prepared to make a finding of bail violation on that point. Even if I were to do so, the Court addressed in [ R v Denny ] the questionable effectiveness of bail enforcement involving abstention from alcohol, particularly in … well, the bottom line is there is a live issue whether Courts through bail ought to be criminalizing the consumption of what is a legal and widely available product . [ 29 ]

Section 524 CC allows a judge to have an accused arrested where there are reasonable grounds to believe the accused has contravened a recognizance. If the judge then concludes that the accused has contravened a condition of the recognizance, “he shall cancel the undertaking or recognizance and 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) CC .” Whether the judge was applying

section 524 CC matter or section 515(6) v, a reverse onus would apply. However,

section 524 CC requires the court to cancel the recognizance on concluding that he “has contravened or had been about to contravene” its terms. By contrast, section 515(6)(

c) CC only requires a specific charge to be laid.

The judge was not required to be convinced of the accused’s guilt. [ 30 ] Also irrelevant, in my view, was the judge’s opinion of whether alcohol abstention should be a component of a bail order as a matter of policy; the judge’s point is unclear, given that release on conditions typically involve restricting the accused from doing things that are legal. [ 31 ] The bail judge went on to state that he was satisfied that allowing the accused to be released “would not jeopardize the safety of the public” and that appropriate conditions could be imposed to ensure this.

He noted that the accused had “dealt responsibly” with stringent bail terms since September 2015, apparently complying with them “apart from what is alleged to have happened” on 1 st May 2016. With respect, the alleged incident on May 1 st undercuts the contention that the accused had reliably complied with his release conditions. [ 32 ] It is difficult not to conclude that, while the bail judge acknowledged the reverse onus imposed by section 515(6) CC , in practice he put the onus on the crown to justify the accused’s detention.

He seems to have approached the analysis with a presumption against detention; it is difficult to see what other meaning can be ascribed to the relatively extensive references (given his brief reasons) to (1) the undisclosed Department of Justice “broken bail” report, (2) the ineffectiveness of bail denial as a “risk management tool”, and (3) the failure to prove the breach under

section 524 CC . [ 33 ] To the extent that the judge considered the circumstances, he simply referenced Mr. Desmond’s evidence, from which he concluded that the new charges against the accused were not proven. He said virtually nothing about the other evidence. Thus, for instance, he ignored the specific evidence that the accused showed signs of having consumed alcohol, stating simply that the evidence of whether the accused was impaired “is not clear to me.” (While this may have merely been a slip, the charge relates to consumption, not impairment.) While “the apparent strength of the prosecution’s case” is a consideration under section 515(10)(

c) CC , it does not follow that bail should be granted in any case where the bail judge is not “certain” that the offence was committed. [ 34 ] In this respect, certain language used by defence counsel in argument is pertinent: counsel said that Mr.

Desmond’s evidence was “strictly aimed towards whether or not the crown has a case that is overwhelming in its strength”; counsel then submitted that the crown did not have “a sure fire case…” While the judge may not have been thinking in these terms, his reasons appear to rest on a presumption against detention, and his specific comments on the circumstances imply that because there is some question of the accused’s guilt, he should be released. [ 35 ] The crown maintains that the judge’s focus should have been on the accused’s release plan, about which he said very little, despite the evidence led in relation to it.

The accused’s father withdrew as surety, to be replaced by the mother of the accused’s children, who is financially dependent on him, and with whom he will not be living. Instead of scrutinizing the release plan, the judge’s focus was on whether grounds for detention had been established pursuant to sections 515(10)(

b) CC and (c). More to the point is that, in substance, the judge seems to have ignored the reverse onus. Failure to detain the accused Section 515(10)(

b) CC [ 36 ] The crown says the bail judge erred in failing to find that section 515(10)(

b) CC provided a basis for detention of the accused. That provision states that detention will be justified where it is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice… [ 37 ] The crown says the accused’s criminal record is relevant to the analysis, and is explicitly admissible pursuant to section 515(1) (

c) CC . The bail judge made reference to the accused’s previous record, referring to the “relevant sections of the bail report” as

“relatively brief.” The crown disputes this characterization, pointing out that the accused’s 38 prior convictions include violent crimes,weapons offences, and breaches of court orders are of great value in predicting the likelihood of criminal behavior while on bail, and inassessing the safety and protection of the community, particularly where, as here, the accused is charged with breach of a bail condition. [38] With respect to the accused’s criminal record, after stating that there was no danger to the public, the judge noted that while theaccused had received a “fairly substantial” prison sentence in August 2010, it would have expired “well before” his next conviction (fora breach of undertaking) in April 2015.

He also noted that the accused had been released on a recognizance with a surety “in relation toan array of charges including robbery” on 1st June 2011, and there was “no recorded violation of that recognizance.” [39] The bail judge concluded that the accused had been complying with bail conditions, with the exception of the alleged conducton May 1st.

The crown argues that the May 1st allegations in fact are directly relevant to the question of his compliance with bailconditions – and that they suggest he was not complying. [40] The fact that an accused is already on bail is a strong consideration under section 515(10)(b), CC. In R v Morales, (SCC), [1992] 3 SCR 711, [1992] SCJ No 98, Lamer CJC said, for the majority: 40 I am also satisfied that the public safety component of s. 515(10)(

b) is necessary to promote the proper functioning of the bailsystem and is not undertaken for any purpose extraneous to the bail system. In my view, the bail system does not function properly if anaccused interferes with the administration of justice while on bail. The entire criminal justice system is subverted if an accused interfereswith the administration of justice. If an accused is released on bail, it must be on condition that he or she will refrain from tampering withthe administration of justice.

If there is a substantial likelihood that the accused will not give this cooperation, it furthers the objectives ofthe bail system to deny bail. 41 In my view, the bail system also does not function properly if individuals commit crimes while on bail. One objective of the entiresystem of criminal justice is to stop criminal behaviour. The bail system releases individuals who have been accused but not convicted ofcriminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accusedwill not engage in criminal activity pending trial.

In Pearson, the reality that persons engaged in drug trafficking tend to continue theircriminal behaviour even after an arrest was one basis for concluding that there is just cause to require persons charged with certainnarcotics offences to justify bail. Similarly, if there is a substantial likelihood that the accused will engage in criminal activity pendingtrial, it furthers the objectives of the bail system to deny bail. [41] The crown says the judge did not adequately consider the nature of the offences or the strength of the evidence under section515(10)(

b) CC. The judge commented on the witness Mr. Desmond – a friend or relative (it was unclear on the evidence) of the accusedwith a record that includes violent crimes, who was seven feet away from the accused at the relevant time – but did not weigh theevidence of witnesses reporting alcohol on the accused’s breath or signs of impairment. These included Cst. Lesko, Sgt. DiPersio, andWendy Hubley. The crown argues that the bail judge erred in failing to consider the evidence of these witnesses, particularly where thebreach allegation involved consumption of alcohol.

The crown also submits that the bail judge erred in not considering the “interferencewith the administration of justice” under section 515(10)(

b) CC, in respect of the alleged threats made by the accused. The offence ofwitness intimidation goes directly to this aspect of section 515(10)(

b) CC, but the judge simply stated that he was satisfied that there wasno risk that could not be dealt with by release conditions. [42] The defence says the bail judge did not err in holding that the accused’s detention was not necessary for the safety andprotection of the public. Counsel notes that judge did question the defence on details of the release plan, principally the addresses of theaccused and surety and the accused’s work hours. However, there was no discussion of the viability of the release plan in addressing theconcerns arising under section 515(10)(

b) CC. The judge merely stated that he was satisfied it was adequate. [43] As noted earlier, the judge pointed to weaknesses in the crown’s case allegedly raised by Mr. Desmond’s evidence, such as Ms.Hubley allegedly blocking his car with her own when he tried to leave, and that Mr. Kenny allegedly chasing him when he left on foot.Additionally, Mr. Desmond said he did not hear the accused make any threats, nor did he smell alcohol off him. Mr. Kenny also did notreport a smell of alcohol.

This was sufficient (the defence says) to make the accused’s guilt unclear to the judge on the issue ofaggression and on the issue of alcohol consumption. The accused says the crown’s case was not overwhelming and the bail judgeproperly considered the release plan and the strength of the crown’s case. Once again, as discussed earlier, the judge gave no sign ofconsidering the strength of the crown evidence; he merely pointed to the existence of defence evidence that might weaken the crown’scase at trial. Failure to detain the accused under s 515(10)(

c) CC. [44] Paragraph 515(10)(

c) CC permits detention of the accused in custody where it is “necessary to maintain confidence in theadministration of justice, having regard to all the circumstances”, which include (

i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offencethat involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[ 45 ] The court in St-Cloud summarized the essential principles that must guide justices in applying s. 515(10)(

c) CC : * Section 515(10)(

c) CC . does not create a residual ground for detention that applies only where the first two grounds for detention ((

a) and (b)) are not satisfied. It is a distinct ground that itself Provincialides a basis for ordering the pre-trial detention of an accused. * Section 515(10)(

c) CC . must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes. * The four circumstances listed in s. 515(10)(

c) CC . are not exhaustive. * A court must not order detention automatically even where the four listed circumstances support such a result. * The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances. * The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis. * No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. * This involves balancing all the relevant circumstances.

At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10) (

c) CC . * To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative Provisions, Charter values and the actual circumstances of the case.

However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused. * This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [ 46 ] The court added that “if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.” [ 47 ] The court stated in St-Cloud that in determining the apparent strength of the crown’s case, the bail judge “must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise.” The bail judge did not consider the strength of the prosecution evidence, such as the evidence of multiple witnesses that the accused had been drinking.

This is apparent from his relatively detailed treatment of Mr. Desmond’s evidence, combined with his silence about the crown’s own evidence. As such, the crown says, a reasonable person’s confidence in the administration of justice may be undermined as a result of the decision not to order detention. Defence counsel stated in submissions that Mr.

Desmond’s evidence was intended to show that the crown did not have a case that was “overwhelming in its strength” or a “sure-fire case.” While the judge did not use this specific language, this appears to be the framework he applied to assessing the strength of the crown case. [ 48 ] In addition to the evidence of Mr. Hubley and Mr. Kenny suggesting that the accused had consumed alcohol, the crown notes that two police officers provided evidence to the same effect. As against this, the defence provided the evidence of Mr.

Desmond that he did not detect the smell of alcohol from some seven feet away from the accused, and the evidence of Ms. Henderson that she did not know if he had been drinking. [ 49 ] The defence simply submits that the bail judge did not believe the administration of justice would be called into disrepute if the accused was released, apparently on the basis that there was no evidence that an offence had been committed that carried a minimum term of three years or more. The defence submits that the bail judge appropriately dealt with this issue after considering the relevant factors.

Summary Conclusions – Section 515(10)(

b) and (

c) CC [ 50 ] As with the broader issue of the reverse onus, the judge’s reasons suggest that his principal considerations were the alleged weakness of the crown case (though he did not explain why he preferred the defence evidence), and his general skepticism of the effectiveness of the bail system. The defence argues for deference based on an assumption that, having heard the evidence and argument immediately before giving his decision, the judge must have applied the appropriate considerations. But this is not what his reasons suggest. Among other things – and these observations are relevant both to sections (

b) and (c) – he seems to have placed significant

weight on Mr. Desmond’s evidence to the exclusion of the crown’s case. He dismissed the accused’s criminal record as a minor consideration, when in fact it was quite extensive and included breaches of conditions and violent offences.

And finally, he relied on social science evidence that was not properly before the court in support of his own opinion about the effectiveness of the bail system as a matter of policy. [ 51 ] Accordingly, I believe the judge’s reasons suggest that the decision was clearly inappropriate, as contemplated by St-Cloud , in that he placed excessive weight on certain considerations and insufficient weight on others.

The September 2015 Recognizance [ 52 ] On the application to revoke the recognizance of 28th September 2015, the crown relies on the evidence (1) that the accused breached the recognizance by consuming alcohol on 1st May 2016, and (2) that there are reasonable grounds to believe that he committed an indictable offence by intimidating a justice system participant while subject to a recognizance. The crown says this results in violations of sections 524(8)(

a) and (

b) CC , respectively:

(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and 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) CC . [ 53 ] The defence says there is no ground to revoke bail on the basis of the events of 1 st May 2016.

The judge declined to do so on the basis that the evidence respecting the alleged consumption of alcohol was unclear, so that there was no ground established to revoke bail under s 524(8)(

a) CC . The defence says the principle of “judicial comity would strongly suggest that a similar result should be returned at the Supreme Court level.” The crown submits that the record provides evidence that the accused has contravened his recognizance by consuming alcohol. However, this provision requires more than “evidence,” and more than “reasonable grounds”; the court is required to make a finding that “the accused has contravened or had been about to contravene” the recognizance. This is less a matter of judicial comity than of whether the crown has established what is required by section 524(8)(

a) CC . I am not convinced that the record is sufficient to make a finding of fact that the accused had consumed alcohol. [ 54 ] As to section 524(8)(

b) CC , the defence says the bail judge held that there was an opportunity for Mr. Desmond to make pertinent observations and there was some degree of credence to be attached to his evidence, despite his kinship to the accused and the fact that he was not approached by the police to give a statement. Thus, the defence says, the evidence that the accused committed an indictable offence while under the authority of a recognizance is unclear and there was no justification for revoking the September 2015 recognizance. On this provision, it is the defence that misstates the burden, however.

The crown is not required to provide “clear” evidence or proof, but only “reasonable grounds to believe that the accused has committed an indictable offence” while under a recognizance. On this ground, based on the matters I have previously addressed, the crown evidence on the record provides reasonable grounds to believe that the accused committed the offences charged. [ 55 ] Accordingly, I allow the crown’s application for review and vacate the Bail order of 9 th May 2016 pursuant to

section 521 of the Criminal Code . As a result the accused would be remanded until his trial in September 2016 in Provincial Court. Further, the recognizance of 28 th September 2015 is revoked pursuant to section 524(8) of the Criminal Code resulting in a remand of the accused until his trial in December 2016 in Supreme Court. ____________________ Scaravelli, J.