R. v. W.F., 2023 NSSC 280

SUPREME COURT OF Nova Scotia Citation: R. v. W.F., 2023 NSSC 280 Date: 20220408 Docket: CRH-490540 Registry: Halifax Between: His Majesty the King v. W.F.

DECISION ON BAIL REVOCATION (FIRST) Restriction on Publication: s.486.4, s.486.5, s.517(1), and s.539(1) Judge: The Honourable Justice John BodurthaHeard: April 8, 2022, in Halifax, Nova Scotia Oral Decision: April 8, 2022Written Decision: August 31, 2023Counsel: William Mathers and Tiffany Thorne, Crown Counsel Jonathan Hughes, Defence Counsel By the Court (orally): Introduction [1] During the proceedings in court, W.F. has expressed a preference of being addressed by first and last name.

For the purposesof this decision and, in keeping with the publication bans in place, I will use initials only and gender-neutral pronouns throughout. [2] On March 22, 2022, this Honourable Court found W.F. guilty of sexual assault against N.S., contrary to

section 271 of theCriminal Code, R.S.C. 1985, c. C-46 (the “Code”) and sexual interference against N.S., contrary to

section 151 of the Code. The chargeof sexual assault was conditionally stayed pursuant to the rule against multiple convictions for the same delict: R. v. Kienapple, (SCC), [1975] 1 SCR 729. [3] The Crown has brought an application, pursuant to s. 523 of the Code, that W.F.’s Release Order be revoked, and that W.F. beremanded pending sentencing. Legislation [4] There are two sources of authority for the Court to remand an accused pending sentencing upon a finding of guilt: sections523(1)(b)(ii) and 523(2)(

a) of the Code. [5] Section 523(1)(b)(ii) reads as follows:

(1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released fromcustody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizanceissued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new informationcharging the same offence or an included offence that was received after the appearance notice, promise to appear, summons,undertaking or recognizance was issued, given or entered into, (

a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial iscompleted; or (

b) in any other case, (

i) until his trial is completed, and (ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of

section 673 isimposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused betaken into custody pending such sentence. [6] Section 523(2)(

a) reads: 523(2) Order vacating previous order for release or detention Despite subsections (1) to (1.2), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, (

b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other thanan offence listed in

section 469, or (

c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that wouldotherwise apply pursuant to subsection (1.1), without such consent, at any time (

i) where the accused is charged with an offence other than an offence listed in

section 469, the justice by whom an order was madeunder this Part or any other justice, (ii) where the accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminaljurisdiction for the province, or (iii) the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused andmake any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judgeor justice considers to be warranted. [7] In R. v.

Antic, 2017 SCC 27 , [2017] 1 S.C.R. 509, the Supreme Court of Canada characterized the right not to bedenied reasonable bail without just cause as “an essential element of an enlightened criminal justice system” (see para. 1). However, thisright is subject to limits, such as the interest in maintaining public order, keeping citizens safe and ensuring the integrity of theadministration of justice: R. v. Tsega, 2021 ONSC 1129, at para. 2 (footnotes omitted). [8] The right to reasonable bail under s. 11(

e) of the Canadian Charter of Rights and Freedoms, (the “Charter”) does apply to aperson who has been convicted. As Arbour J.A. (as she then was) explained in R. v. Farinacci, (1993), (ON CA), 86C.C.C. (3d) 32 (Ont. C.A.), at para. 37: The right not to be denied reasonable bail without just cause is rooted in the presumption of innocence, which is substantially spent bythe conviction. Indeed, the presumption of innocence is spent by the verdict, be it a conviction or an acquittal. A conviction does notcreate a presumption of guilt. It constitutes a legal, conclusive finding of guilt.

Like an acquittal, it is enforceable unless and untilreversed. After a conviction, there is no presumption left, one way or the other. There is an enforceable finding of guilt. [9] The mere fact of conviction does not necessarily mean the revocation of an existing judicial interim release order. Indeed,Parliament has, by enacting s. 523(1)(b)(ii) of the Code, directed that for offences other than those listed in s. 469 of the Code, thepresumption is that existing bail orders will remain in force until the imposition of sentence.

Any departure from this legislativedirection will be the exception, and only where the Crown can demonstrate cause: R. v. Green, (2006) (ON SC), 210C.C.C. (3d) 543, 2006 CarswellOnt 4880 (Sup. Ct. J.). [10] The law is not settled as to whether section 523(1)(b)(ii) or section 523(2)(

a) is the authority for the revocation of bail after afinding of guilt and before sentencing. Regardless, the analysis remains largely the same requiring the application of the facts to theprinciples set out in section 515(10) of the Code subject to modifications. Section 523(2)(

a) authorities [11] In R. v. Green, the Crown applied to have Mr. Green’s bail revoked after he was found guilty of trafficking in cocaine andpossession of the proceeds of crime. Justice Ducharme of the Ontario Superior Court ruled that while s. 523(1)(

b) recognizes thepossibility of post-conviction revocation of bail, it does not confer any power on the trial judge to do so, and the trial judge’s power tovary or revoke bail only lies in section 523(2)(

a) of the Code: Green at paras. 6 and 7. [12] It is noteworthy that in Green, the Crown only relied on the primary and secondary grounds. Green significantly pre-dates the

2008 re-enactment of the tertiary grounds under section 515(10) (

c) and the decision of the Supreme Court of Canada in R. v. St.

Cloud , 2015 SCC 27 , where the application of the tertiary ground was thoroughly articulated. [ 13 ] Justice Ducharme cautioned that, “[i]n assessing cause, it must be kept in mind that the convicted offender has already been deemed worthy of judicial interim release.” Justice Ducharme went on to note that, “[p]resumably, an offender in this position has complied with the terms of his or her release …”: Green , at para. 12 . [ 14 ] Justice Ducharme also cautioned that the revocation of bail can have a significantly detrimental impact on the offender's ability to prepare for sentencing, at para. 13: In considering an application under s. 523(2) (

a) of the Criminal Code , the trial judge should also keep in mind that the revocation of bail can have a significantly detrimental impact on the offender's ability to prepare for sentencing. If the offender is in custody, contact with his or her counsel will be more onerous; it will complicate the gathering of materials, such as letters of reference and the like, which are routinely relied upon by the courts at the time of sentencing; and it will preclude the offender from getting his or her affairs in order before being incarcerated.

Thus, the trial judge hearing an application for revocation of bail should first consider, where the Crown has legitimate concerns, whether these could be met by varying the terms of the release. Of course, any doubt about whether or not the offender will receive a custodial sentence would be another important factor militating against the revocation of bail. [ 15 ] In Green , Justice Ducharme noted that Mr. Green had been out on bail for almost three years and there had been no allegations that Mr. Green had ever failed to comply with the terms of his release.

Given these factors, Justice Ducharme held that the Crown had not established cause for revoking Mr. Green's release pending sentencing (see paras. 15-16). [ 16 ] In R. v. Tsega , 2021 ONSC 1129 , a decision following Green , the Ontario Superior Court of Justice listed five principles to apply when the Crown seeks post​conviction revocation of bail, at paras. 7-13: (

a) It is up to the Crown to establish that bail should be revoked; (

b) The accused’s immediate detention must be justified under s. 515(10) of the Code ; (

c) Generally speaking, the Crown must bring forward new facts that have emerged about the accused; (

d) The judge must take into consideration the impact of pre-sentencing detention on the offender; (

e) Revocation of bail post-conviction is the exception rather than the rule. Section 523(1)(b)(ii) Authorities [ 17 ] R. v. BTQ , 2017 ABQB 715 , represents a line of authorities that diverges from Green on the source of authority for revoking release pending sentencing. Justice Tilleman found that a plain reading of section 523(1) (b)(ii) of the Code is that bail continues following a finding of guilt unless the trial judge orders bail revoked (see para. 8). Justice Tilleman reasoned that sections 523(1) and 523(2) apply to different time periods; section 523(2) specifically refers to the Court's order on revocation or release applying to the accused “until his trial is completed,” while

section 523 (l)(b)(ii) refers to the time period between the time the accused is determined to be guilty of the offence, “until a sentence [...] is imposed on the accused.” (see para. 15). [ 18 ] Justice Tilleman identified a key consideration in delineating the time periods between, prior to, or during a trial versus following a finding of guilt: “a considerable new circumstance exists: the accused is no longer presumed innocent” (see para. 17). Once an accused is found guilty, the presumption of innocence, and thus an individual’s

section 11(

e) Charter rights, no longer applies (see para. 22). [ 19 ] In considering the test that should be applied to the question of revoking release after a finding of guilt, Justice Tilleman ruled that while section 515(10) does not apply piecemeal or automatically, the principles from section 515(10) “continue to apply after conviction with modifications.” (see para. 24). The primary modifications are that with the finding of guilt, the strength of the Crown’s case is already established, and the presumption of innocence no longer plays a role in the balancing.

The remaining primary, secondary, and tertiary grounds under section 515(10) of the Code continue to apply (see paras. 24-25). [ 20 ] The Defence takes no issue with the

summary of the law on an application made under s. 523(1) (b)(ii) as set out in the Crown brief, but argues that the reasoning in Tsega is preferrable. [ 21 ] In reviewing the legislation and applying the modern approach to statutory

interpretation which “requires that the words of a provision be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”: R. v. Alex , 2017 SCC 37 , at para. 24 , quoting E.A. Driedger, Construction of Statutes (2 nd ed, 1983), at p. 87, (as cited in R. v. Aheer , 2020 ABCA 232 , at para. 11 ). [ 22 ] The Court noted in Aheer , 2020 ABCA 232 , at para. 17 : When s. 523(1)(b)(ii) is viewed in its overall context, this

interpretation reflects the distinction between the pre-conviction and post- conviction bail provisions of the Criminal Code , as the accused no longer benefits from the presumption of innocence. … [ 23 ] The Crown submits that Justice Tilleman’s reasoning in BTQ better aligns with the principles of statutory

interpretation and the principles underlying judicial interim release. As noted in Aheer , at para. 15 : The

summary conviction appeal judge followed the approach in BTQ . We agree with that approach. In our respectful opinion, a fair

reading of s. 523 does not support the

interpretation given by the courts in Iyer and Green . [ 24 ] I agree with the Crown that the reasoning in BTQ and adopted by the Alberta Court of Appeal in Aheer is the preferred approach. [ 25 ] Regardless of whether the Green line of authorities or the BTQ line of authorities is followed, the Crown submits that W.F.’s detention pending sentencing is necessary to maintain confidence in the administration of justice. The Crown application is based on the tertiary ground expressed in section 515(10) (

c) of the Code to revoke W.F.’s bail. Subsections 515(10) (c)(i)-(iv) lists four non- exhaustive factors that may be considered in assessing whether detention is necessary to maintain confidence in the administration of justice. Section 515(10) reads as follows: 515. . . .

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention 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; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

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 offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 26 ] An application by the Crown under s. 523(1)(b)(ii) is, in effect, a review of a previously issued order.

The language of s. 523(1)(b)(ii) is such that the release continues in force until such time as a Justice orders otherwise (see Tsega , at para. 38 ). The unanimous Court in St. Cloud held that for a party to seek a review on a “material change of circumstances”, the new evidence should be subject to the same principles as fresh evidence on an appeal application (see St. Cloud , at paras. 122-129 ). Any review of a bail order is not a hearing de novo either – it is a hybrid process and the reviewing judge must consider the facts known at the time of the hearing (see St. Cloud , at para. 65 ). The factors in St.

Cloud are applied with modifications when applying the s. 523 provisions. [ 27 ] The Crown must persuade me that the detention of the accused is necessary for one of the reasons enumerated in s. 515(10) of the Code . This means that the accused’s detention must be necessary: (

a) to ensure his or her attendance in court in order to be sentenced (the "primary ground"); (

b) for the protection or safety of the public (the "secondary ground"); or (

c) to maintain confidence in the administration of justice, having regard to all the circumstances (the "tertiary ground"). R. v. Tsega , 2021 ONSC 1129 , at para. 9 [ 28 ] In Green , the Court discussed public confidence in the administration of justice at para. 14: 14 Finally, neither public safety nor maintaining public confidence in the administration of justice requires that bail be routinely revoked following conviction.

Parliament has sought to ensure public safety in two ways: first, by providing that, for the most serious offences, those enumerated in s. 469 , bail will automatically be revoked following conviction; and second, by providing for the revocation of bail under s. 524 where the accused has not complied with the terms of the judicial interim release order. The important question of public confidence in the administration of justice must be assessed from the perspective of a public that is both informed about our system of bail and the facts of the particular case.

This includes an appreciation of the fact that the offender, although convicted, has already been granted judicial interim release and has complied with the terms of that release, usually for a considerable period of time. It is difficult to understand how public confidence in the administration of justice will be undermined by the continued release of an offender who has demonstrated that he or she is not a threat to public safety and does not pose a risk of flight nor interference with the administration of justice.

This is particularly true given that the time between conviction and sentencing rarely exceeds two months. [ 29 ] Generally, an application for post-conviction revocation of bail will be based on new facts that have emerged at trial. The Court in Tsega said: 11 An application for post-conviction revocation of bail occurs only in cases where the convicted offender was previously determined to be eligible for interim release. This means that, for the purpose of a s. 532[ sic ](2) application, the Crown must generally rely on new facts that have emerged during the trial about (

i) the circumstances surrounding the commission of the offence for which the accused has been tried; (ii) other criminal acts engaged in by the offender; or (iii) the offender's failure to comply with the terms of his or her release. [footnote omitted] [ 30 ] The Crown seeks the revocation of W.F.’s bail on the basis of the tertiary ground of s. 515(10) . It admits that W.F. is not a flight risk and that W.F.’s current release order manages the concern W.F. may present as a danger to the public. It argues, however, that public confidence in the administration of justice will be undermined if W.F. is permitted to remain at large.

Tertiary Grounds The Apparent Strength of the Prosecution's Case [ 31 ] The apparent strength of the prosecution's case weighs heavily in favour of revocation. W.F. has been found guilty of sexual assault and sexual interference. The presumption of innocence no longer applies. [ 32 ] I give this circumstance some weight, but not very much, because a person subject to ss. 523(1)(b)(ii) has, in every case, been found guilty. The assumption is nonetheless that, if they are already on bail, they will remain on bail until they are sentenced.

Giving any significant weight to the strength of the prosecution case, in these circumstances, undermines the regime that Parliament has put in place by which a release order continues in place until sentencing unless otherwise ordered. The Gravity of the Offence [ 33 ] For the purposes of ss. 515(10) (c), the judge must assess the “objective” gravity of the offence in comparison with other offences in the Code .

This is determined on the basis of the maximum sentence for the offence as well as any mandatory minimum jail term (see Tsega , at para. 20 ). [ 34 ] In 2012 (the start of the date range on the Information), both sexual assault and sexual interference carried a maximum sentence of ten years’ imprisonment. However, in 2015, the Tougher Penalties for Child Predators Act , SC 2015, c. 23, increased the maximum sentences for sexual assault when the complainant is under the age of 16, and for sexual interference to 14 years imprisonment.

This evidences a clear intention by Parliament for sexual assaults on children and sexual interference to be treated as serious offences. This factor weighs in favour of revocation. The Circumstances Surrounding the Commission of the Offence [ 35 ] The Crown submits that the circumstances surrounding the commission of the offence also weigh in favour of revoking W.F.’s release. [ 36 ] As noted by the Supreme Court of Canada in St.

Cloud , a non-exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under section 515(10) (c), include if, “the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). ...

The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account” (see para. 61). [ 37 ] There is a broad range of criminal behaviour that can be captured under the charges of sexual assault and sexual interference. In this case, the Crown submits that the circumstances surrounding the commission of the offence is at the high end of the range: the circumstances took place over years, included full vaginal intercourse, and W.F. was in a position of trust and authority over N.S.

Further, as noted by the Supreme Court of Canada in R. v Friesen , 2020 SCC 9 , violence is inherent in sexual offences against children even where weapons, intimidation, and additional physical assault may not be present; the participation of the victim does not lessen this fact (see Friesen , at paras. 148-154 ).

The Liability of the Accused to a Potentially Lengthy Term of Imprisonment [ 38 ] As noted in the discussions in Court on March 22, 2022, there is a difference of opinion between the Crown and Defence on whether or not W.F. is liable to a potentially lengthy term of imprisonment. [ 39 ] The Crown will be recommending a custodial sentence of ten years - the maximum sentence available at the time. The key aggravating factors in this case include:

a) The harm to N.S.’s personal autonomy;

b) The relational harm between N.S. and her grandmother;

c) The vulnerability of N.S., both due to her age and the nature of her relationship with W.F.;

d) W.F.’s prior convictions for sexual assault against four girls between the ages of 8 and 15 years old;

e) The frequency and duration of the sexual interference against N.S.; and,

f) The degree of physical interference. [ 40 ] In the discussions held in Court on March 22, 2022, defence counsel referred to the amount of time W.F. has already spent on remand for these offences. The Crown’s calculation of the amount of time W.F. has spent in remand on these matters is 579 days (approximately 1 year and 7 months), even with enhanced credit and even assuming some mitigation for W.F.’s time on conditions while released. The Crown submits that W.F. will still be facing a lengthy period of imprisonment.

Sentences in the mid​single digits have become the norm for sexual assaults upon children, even for first offenders: Friesen , at para. 114 . [ 41 ] In advance of sentencing submissions it is premature for me to reach any conclusion about a fit sentence for W.F. However, based on Friesen , W.F. is facing a potentially lengthy sentence in prison.

Additional Circumstances to be Considered [ 42 ] In Green , Justice Ducharme mentioned two presumptions in support of his judgment that revocation of bail following a finding of guilt and pending sentencing should be the exception rather than the rule: “[i]n assessing cause, it must be kept in mind that the

convicted offender has already been deemed worthy of judicial interim release.” and “[p]resumably, an offender in this position has complied with the terms of his or her release.” (see paras. 12 and 14). The Crown argued that neither factor is present in this case. [ 43 ] The Crown argued that while the Provincial Court did initially grant bail to W.F. on February 22, 2018, that bail was revoked. W.F. breached the terms of his release by publishing photographs of N.S. and commentary on the Crown disclosure online.

It cannot be said that W.F. “has complied with the terms of his or her release.” Nor can it be said that W.F. “has already been deemed worthy of judicial interim release.” Following the revocation of W.F.’s bail, the Provincial Court denied W.F.’s application for judicial interim release on June 28, 2019, and that denial of bail was upheld by the Supreme Court on December 18, 2019. [ 44 ] The Crown argued that W.F.’s consent release on March 25, 2020, was due to a large-scale operation by the Public Prosecution Service to immediately and dramatically reduce the number of individuals in custody during the early days of the COVID-19 pandemic (see “Nova Scotia jail population almost cut in half under COVID-19 measures”, CBC News (April 22, 2020) online < Nova Scotia jail population almost cut in half under COVID-19 measures | CBC News >.

In the first few months of the COVID-19 pandemic, an analysis of whether public confidence in the administration of justice supported the remand of an individual was entirely influenced by public health considerations. W.F.’s release was as a result of an extraordinary event occasioned by extraordinary circumstances. [ 45 ] In Green , Justice Ducharme commented that, “the time between conviction and sentencing rarely exceeds two months.” (see para. 14).

The Crown argues that W.F. has demonstrated “a remarkable proclivity for delaying these proceedings: repeatedly changing counsel; filing and withdrawing admissions; making pretrial applications which are then at least partially conceded on the day of; seeking the retroactive exclusion of evidence previously admitted, etc.” Based on the procedural history of this case, Justice Ducharme’s time estimates are unlikely to be any guide and further delays will only erode the public’s confidence in the administration of justice with respect to these proceedings. [ 46 ] I see no reason why a sentencing hearing cannot be scheduled two or three months from now.

There were only two pre​sentence reports being considered: a pre-sentence report and a comprehensive forensic sexual behavior pre-sentence assessment. As for the former, it is the Crown’s and the Court’s understanding that pre-sentence reports are prepared more rapidly for individuals in custody. As for the latter, that might have been difficult to prepare while W.F. was in custody, but W.F. has refused to consent to such an assessment.

I do not anticipate a lengthy delay between the sentencing hearing and a sentencing decision that would erode the public confidence in the administration of justice should W.F. remain on his release conditions. [ 47 ] I do take judicial notice of the increased restrictions currently placed on inmates as a result of Covid 19, which may make it challenging for W.F. to meet with counsel and participate in the preparation of sentencing submissions if he is incarcerated, given the enhanced restrictions placed on inmates as a result of the pandemic. [ 48 ] Upon a finding of guilt, section 523(1)(b)(ii) authorizes the Court to order that an accused be remanded pending sentencing.

This provision can be engaged on the Court’s own motion; it does not require the Crown to show cause for why an offender should be remanded. [ 49 ] BTQ addresses the factors at paragraph 25: 25 The remaining factors (flight risk, public safety, confidence in the administration of justice) still come into play post-conviction. The first factor is the flight risk, or whether the accused will re-attend court unless detained. Components of past record, court behavior and nature of the crime can be relevant to flight risk.

The second factor is whether detention is necessary to protect or keep the public safe, including whether there is a substantial likelihood the accused will re-offend. Finally, the public's confidence in the administration of justice needs to be addressed, considering the: • seriousness of the offence; • circumstances surrounding the offence; and • the potential for a lengthy term of imprisonment. [ 50 ] In assessing public confidence, I must consider what a reasonable member of the public would think about W.F.’s continued release until his sentencing hearing.

I must assume that this reasonable person is familiar with the fundamental values of our criminal law, including the right not to be unreasonably deprived of bail. [ 51 ] Given the history of this case and the impact of this crime on N.S., N.S.’s family, friends and community, I understand why they might feel strongly that there is no reason why W.F. should remain free pending the sentencing hearing.

The Crown argued, “to allow anyone with so many prior convictions for sexual offences against children to remain free while awaiting sentencing on such serious offences, particularly after bail has already been revoked following a serious breach relating to the same child victim, will harm public confidence in the administration of justice.” [ 52 ] I do agree there are factors that weigh in favour of detention under the tertiary ground, such as the seriousness of the crime that W.F. committed, the violent nature of the crime as violence is inherent in sexual offences against children (see Friesen ), and the possibility that W.F. will receive a lengthy jail sentence.

However, the Code establishes a presumption that an offender on bail will remain on bail after sentencing, unless there is a basis under one of the grounds in s. 515(10) to revoke bail. This usually requires new facts that were unknown when bail was granted. [ 53 ] I find that the circumstances relied on by the Crown in this application were all known when W.F. was granted bail as part of the COVID-19 consent release. Whether extraordinary circumstances or not, W.F. was still part of the 50% that were released.

Clearly, it was felt that public confidence in the administration of justice supported W.F.’s consent release. [ 54 ] W.F. has been on release conditions for almost two years. He has not breached his conditions or failed to appear before the court whenever ordered to do so from March 25, 2020. The Crown has not brought forward any new facts that might cause me to

question the appropriateness of bail previously granted to W.F. [ 55 ] As was the case in R. v. Green , the delay until W.F. is sentenced will be relatively short. W.F. may have trouble preparing submissions for sentencing while in a detention centre as a result of restrictions placed on inmates during the COVID-19 pandemic. His counsel indicated in his brief that “there are only three appointments per day available at the correctional institutions: 9 a.m., 1 p.m. and 6 p.m.

These appointments are available for one counsel to visit one client and are usually capped at one hour.” In addition, W.F.’s release conditions are extremely restrictive and can be modified to ensure public confidence in his release. I conclude that a reasonably informed member of the public would not find that extending W.F.’s conditional release for a short period erodes confidence in the justice system. [ 56 ] Based on these circumstances, I find that the Crown has not demonstrated that the right to reasonable bail ought to be revoked in these circumstances.

The language of s. 523(1)(b)(ii) demonstrates a presumption that release will continue unless a Court orders otherwise. Any such order must be based on law and given that the considerations under s. 515(10) that are outlined by the Crown in its brief were all known at the time of W.F.’s release and W.F. has abided by those conditions for nearly two years.

The Crown’s application to revoke W.F.’s bail is denied and W.F.’s current release order shall remain in place with the following modifications based on the Crown raising some legitimate concerns about W.F. remaining on bail. [ 57 ] Clause J(1) in the current release order is deleted. [ 58 ] Clause J(2) is deleted. [ 59 ] Clause K(1), which deals with the exceptions, is deleted. Bodurtha, J.