WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Publication Notice: The order restricting publication in this proceeding made under s. 517 of the Criminal Code is no longer in effect. This judgment was published on April 19, 2023.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Fasoranti, 2021 ONCA 138
DATE: 20210304
DOCKET: M51710
MacPherson, Tulloch and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent (Responding Party)
and
Babatunji Lloyd Fasoranti
Applicant (Moving Party)
Christopher Assié, for the moving party
Lisa Joyal, for the responding party
Heard: December 18, 2020 by video conference
On review under s. 680 of the Criminal Code, R.S.C. 1985, c. C-46 of the order of Justice Mark L. Edwards of the Superior Court of Justice, dated December 12, 2019, with reasons at 2019 ONSC 7164, denying judicial interim release.
Tulloch and Lauwers JJ.A.:
[1] The applicant is charged as a party to the offence of second-degree murder. He was denied bail at first instance. He brought an application for a review of his detention order, pursuant to s. 680 of the Criminal Code, R.S.C. 1985, c. C-46. Strathy C.J.O. directed a panel of this court to review the bail judge’s decision: R. v. Fasoranti, 2020 ONCA 576.
[2] For the following reasons, we would make an order granting bail to the applicant on the terms and conditions set out below.
A. Factual Overview
[3] On the night of the murder, the applicant and several other young people, including the deceased, attended a birthday party. It is alleged that early that evening, the applicant and the deceased had a verbal altercation. Some hours later, the deceased decided to leave the party. While he was seated in the passenger seat of a car with the door open, the applicant approached him. They argued again for about two and a half minutes.
[4] During the argument, the applicant allegedly threatened to slap the deceased, and grabbed him by the shirt. Soon after, a third party, believed to be the applicant’s friend and co-accused, intervened. The applicant either stepped aside or was pushed. The third party then engaged with the deceased and demanded that he turn over the deceased’s ring to him. When the deceased refused to give up his ring, the third party shot him once in the chest. Surveillance video, albeit of poor quality, captured the events as they unfolded.
[5] Both the shooter and the applicant were charged jointly with second-degree murder. The applicant applied for bail, but was refused, and remains in custody.
[6] As noted above, the applicant now appears before a panel and requests a bail review pursuant to s. 680 of the Criminal Code.
B. Statutory provisions governing bail
[7] Subsection 515(10) of the Criminal Code is the controlling provision governing bail. This subsection provides that “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.
[8] For all accused individuals seeking bail on a charge of murder, they bear the onus of showing cause for why they should be released. Section 522(2) of the Criminal Code states:
Where an accused is charged with an offence listed in section 469, 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).
[9] The bail judge correctly identified that the applicant bears a reverse onus pursuant to s. 522(2) of the Criminal Code because he is charged with murder, a s. 469 offence. This means that the applicant must show cause regarding why his detention in custody is not justified within the meaning of s. 515(10) of the Criminal Code.
C. Analysis
[10] Against the backdrop of every bail decision is the constitutional entrenchment of the right of “any person charged with an offence…not to be denied reasonable bail without just cause” under s. 11(e) of the Canadian Charter of Rights and Freedoms.
[11] The Supreme Court has reminded judges that “a recognizance with sureties is one of the most onerous forms of release”: R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 67. Bail judges must bear in mind that “pre-trial detention is extraordinary in our system of criminal justice”: R. v. Morales, [1992] 3 S.C.R. 711, at p. 728. Further, “the release of accused persons is the cardinal rule and detention, the exception”: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 70.
[12] Under a s. 680 application to review the refusal of bail, the panel hearing the review owes deference to the bail judge’s findings of fact: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 61. This court can only intervene if we find that: (i) the bail judge erred in principle or in law, and the error was material to the outcome, or (ii) where this panel concludes that the decision was clearly unwarranted: Oland, at para. 64. The Crown submits that the Chief Justice’s decision in R. v. K.M., 2017 ONCA 805, 137 O.R. (3d) 721, at para. 33 is instructive. He endorsed the observation of Slatter J.A. in R. v. Beairsto, 2017 ABCA 254, at para. 5, that: “‘Clearly unwarranted’ is more closely analogous to a finding that the decision to be reviewed is so contrary to the facts and the law that no reasonable judge could have made it.”
[13] As Moldaver J. noted in Oland, at para 61: “[I]n the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.” This is such a case. Having reviewed the record, we are of the view that the test in Beairsto is met: this decision was clearly unwarranted. The bail judge assessed the release of the applicant based on the primary and tertiary grounds. The constellation of law and facts on both grounds cannot sustain a finding that the applicant should be detained pending trial.
[14] Considering the totality of the circumstances of this case and the plan of release that was presented by the applicant, we find that the applicant has shown cause for why he should be released. He is constitutionally entitled to bail.
[15] In the sections that follow, we address the primary, secondary and tertiary grounds, each in turn.
(1) The Primary Ground
[16] As noted above, the primary ground under s. 515(10)(a) asks whether detention is necessary to ensure the accused’s attendance in court. Contrary to the bail judge’s findings, there was no evidence before the court that could lead to the conclusion that detention was justified under the primary ground in this case.
[17] In considering the primary ground, the bail judge correctly highlighted the following factors: he lives with his parents and has strong roots in the community; he does not have a passport; he has no direct connection with any foreign jurisdiction; there was no evidence that the applicant ever contemplated fleeing the jurisdiction; he had no criminal record; and he had no history of non-compliance with court orders.
[18] Yet the bail judge detained the applicant based in part on the speculation that there could be an incentive for him to flee the jurisdiction because he is charged with murder and faced a potential life sentence. While the seriousness of the offence is a legitimate concern on the tertiary ground, there was no evidence on the primary ground that the appellant had any incentive to flee the jurisdiction. Rather, the evidence demonstrated that the applicant did not flee nor attempt to flee the jurisdiction in the two and a half months between the incident that led to the death of the deceased, and the applicant’s arrest.
[19] This in our view was an unwarranted finding that contributed to the bail judge’s ultimate conclusion. Without more, a murder charge cannot support an inference that the accused has an incentive to flee for the purpose of the primary ground. Otherwise, every accused charged with murder would be denied bail. This is inconsistent with parliamentary intention, as demonstrated by the enactment of the statutory judicial interim release regime for individuals charged with s. 469 offences.
[20] After outlining the relevant factors which pertain to the primary ground, the bail judge went on to state: “The real issue, in my view, as it relates to the primary ground, is whether the proposed plan of release is one which would reduce the risk of non-attendance for trial with intolerable limits.” Here the bail judge correctly identified the proposed plan of release as a relevant factor within his overall balancing of considerations on the primary ground.
[21] The proposed plan permitted the applicant’s release under his parents’ supervision, under such terms as the court deemed appropriate. The bail judge noted the following:
The plan of release proposed is one that would require the applicant to live with his parents under such terms as this court deems appropriate. The plan would allow for the applicant to continue his education at Seneca College, and/or if the court deemed appropriate to remain under the supervision of his parents.
Both of the applicant’s parents are gainfully employed. His mother … is a registered nurse working 12 hour shifts... She works four days on and five days off.
The applicant’s father … is the owner and operator of a retail clothing store ... The applicant has also been involved in the family business.
While a specific amount that could be posted as a surety was not mentioned in the evidence of either [parent], the evidence does establish that they own a residence … which has an estimated value of $1.3 million, subject to a mortgage … of approximately $600,000 … In argument, [defence counsel] suggested that an appropriate amount that the court might wish to consider would be in the order of $250,000…
During the course of evidence of both [parents], they were cross-examined with respect to their role as sureties in connection with bail conditions that had been imposed on their daughter as a result of criminal charges that she was facing. The evidence more than satisfies me that their daughter had breached the terms of her bail conditions, and that [the parents] took the appropriate steps to report such breaches to the police. They clearly understood their obligations in that regard, but the evidence also equally supports the conclusion that their daughter was not prepared to listen to her parents in connection with the rules of the family home and the terms of her judicial interim release. This in my view, raises serious concerns with respect to the ability of [the parents] to properly supervise the applicant, who faces an even more serious charge than the charges that their daughter faced. I am not satisfied on the evidence that the proposed plan of release is one that this court could endorse, given the seriousness of the charge that the applicant is facing. [Emphasis added.]
[22] The bail judge concluded that the applicant’s parents were not appropriate sureties. In forming this conclusion, he reasoned that the applicant’s parents had acted as sureties before, for the applicant’s sister, and she had subsequently breached her bail. The bail judge was therefore not satisfied that the applicant would not also breach his bail, like his sister, if he was similarly released to his parents as sureties. In other words, the bail judge was not persuaded that the applicant’s parents could be relied upon to supervise the applicant. He particularly did not want to endorse the proposed plan of release “given the seriousness of the charge that the applicant is facing.”
[23] This reasoning, in our view, poses a problem, as there was no evidence before the bail judge that the applicant had ever been non-compliant with his parents’ rules and would be non-compliant with a bail order. Rather, the evidence was that the applicant’s parents were responsible sureties: they notified the police of their daughter’s breach when she was non-compliant with her bail, and there was no evidence that she had absconded from the jurisdiction.
[24] In our view, the basis of the bail judge’s conclusion that the applicant’s parents were not appropriate sureties is clearly unwarranted. There was no evidence before the court to suggest that the applicant would behave in the same manner as his sister, should he be granted bail. Furthermore, there was no evidence to suggest he would be non-compliant with any release terms or conditions that would be imposed. Again, it was important for the bail judge to bear in mind that a recognizance with sureties is one of the most onerous forms of release: Antic, at para. 67.
[25] In conclusion with respect to the primary ground, the bail judge noted that the applicant had no prior criminal record; he had no history of breaching court orders; he has strong roots in the community; he has never attempted to flee the jurisdiction; and he does not even own a passport. Yet, the bail judge found that he might flee the jurisdiction simply because of the nature of his charges and the fact that his sister had breached the terms of her bail on a prior occasion. In other words, the evidence suggests that the decision on the primary grounds was “so contrary to the facts and the law that no reasonable judge could have made it.”
(2) Secondary Ground
[26] Although the Crown relied on the secondary ground under s. 515(10)(b) to argue for a detention order – under which the detention is necessary for the protection or the safety of the public – the bail judge made no direct reference to this ground in his decision.
[27] Therefore, we proceed on the basis that the bail judge was not concerned that the applicant posed any risk of reoffending or that there was a substantial likelihood that, if released, he will commit a criminal offence or interfere with the administration of justice, such that his release would endanger the public. We would note that detention would clearly not be justified on the secondary ground given that he had no criminal record nor any known history of violence.
(3) Tertiary Ground
[28] The bail judge’s decision turned mainly on the tertiary ground under s. 515(10)(c). He concluded that the applicant’s detention was necessary to maintain confidence in the administration of justice, having particular regard to the apparent strength of the prosecution’s case and to the gravity of the charge of murder.
[29] In denying the bail application, the bail judge stated the following:
If a reasonable member of the public is properly informed about the strength of the Crown’s case as well as the plan for release that falls well short of what is required, I strongly suspect that this reasonable person would seriously question granting bail to the Applicant. I have balanced all of the factors that I am required to consider paying particular attention to the plan of release and the strength of the Crown’s case. [Emphasis added.]
[30] In one of the last sentences of the reasons, the bail judge states: “The applicant’s continued detention is more than justified on the tertiary ground alone.” In the same paragraph, he described the release plan before the court as insufficient.
[31] The bail judge engaged in the correct analysis under the tertiary ground. However, we find his weighing of the relevant factors and their application to the underlying principles of bail to be problematic. Before addressing the bail judge’s analysis, we first set out the principles governing the tertiary ground.
(a) Governing Principles
[32] The tertiary ground analysis requires a balancing of all the relevant factors surrounding the circumstances of the offence, the offence itself, and the apparent strength of the Crown’s case. Maintaining confidence in the administration of justice is viewed objectively, from the perspective of the reasonably informed member of the public. As McLachlin C.J. observed, writing for the majority in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 41:
At the end of the day, the judge can only deny bail if satisfied that in view of [the relevant] factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.
McLachlin C.J. adopted McEachern C.J.B.C.’s definition of the reasonable person from R. v. Nguyen (1997), 119 C.C.C. (3d) 269, [1997] B.C.J. No. 2121 (B.C.C.A.), within the context of the tertiary ground analysis. She stated that: “[T]he reasonable person making the assessment must be one properly informed about ‘the philosophy of legislative provisions, Charter values and the actual circumstances of the case.’”
[33] More recently, the Supreme Court of Canada again reflected on what is meant by the reasonable person within the context of the tertiary ground in s. 518(2)(c) of the Criminal Code in St-Cloud. The court stated, at para. 80:
In short, the person in question in s. 515(10)(c) is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons.
[34] The court continued in St-Cloud, at para. 87, to elaborate on how courts are to assess the reasonable person:
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.
[35] This is ultimately a balancing exercise on the part of the judge hearing the bail application. The proposed plan of release, if there is one, is integral to this analysis and balancing exercise. As noted above, against this backdrop is the ever, important right to bail, constitutionalized under s. 11(e) of the Charter.
[36] In Hall, at para. 41, the court emphasized that in order for a judge to rely on the tertiary ground to deny bail:
The judge must be satisfied that detention is not only advisable, but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice.
(b) The Principles Applied
[37] Applying these principles to the case at hand, a correct balancing of the requisite factors under the tertiary ground supported the conclusion that a denial of bail could undermine confidence in the administration of justice. While this is a murder charge involving a firearm, and the offence is one in which the applicant could face a life sentence, the strength of the Crown’s case is arguable at best.
[38] The bail judge anchored his reasons on the strength of the Crown’s case but the evidence does not bear this out. The Crown’s theory linking the applicant to the charge of murder is purely circumstantial. The applicant was not the shooter. Rather, the allegations are that he had been pushed aside after a contentious exchange with the deceased. His co-accused then approached the deceased and shot him.
[39] The bail judge reached the conclusion that the Crown’s case was a strong one based on the video evidence, which links the applicant with the deceased “in such a way that the applicant was an active participant in the events that ultimately led to the death of the deceased.” However, the bail judge had earlier acknowledged the poor quality of the video tape.
[40] The bail judge also made note of defence counsel’s concession that there were “triable issues” with respect to the applicant’s culpability before going on to say that those triable issues amounted to a strong case for the Crown. However, a defence concession that there are triable issues does not equate to a concession that the Crown’s case is strong. The fact that an accused is charged with an offence suggests that there are triable legal issues, but not necessarily a strong Crown’s case.
[41] A fair assessment of the case is that the Crown’s theory that the applicant is a party to the offence of second-degree murder is arguable. This means the case for the Crown is not a slam dunk by any means. The offence of murder is a specific intent offence. The Crown bears the onus of establishing that the applicant was not just involved in a heated argument with the deceased, but that he formed the intent to kill him when his co-accused shot him. The Crown must establish that the applicant had a subjective intent or knowledge that his actions would directly result in the death of the deceased. According to the record, there is no evidence that the appellant had a gun or knew that the shooter had a gun. At best, the Crown will have to establish the applicant’s subjective intent through circumstantial evidence. While not impossible, this will definitely not be an easy feat.
[42] Put another way, at trial, the Crown will have a high bar to meet to establish that the applicant is a party to the specific intent offence of murder. It certainly is an arguable case, but definitely not an overwhelming one or a strong one.
[43] It is not the law that a strong prosecution case for murder deprives an accused of access to bail, where the primary, secondary, and tertiary grounds cannot be met. When assessing the tertiary ground, a holistic view of the circumstances must take into account the risk factors raised and addressed in the primary and secondary grounds.
[44] Although the gravity of the offence alleged is very serious, the accused is still presumed innocent at this stage of the proceedings. As the Supreme Court observed in St-Cloud, at para. 70, the entitlement to reasonable bail rests “on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter.” And, as outlined above, the Crown’s case is not a strong one. The weight of this consideration is therefore mitigated.
[45] The applicant has presented a new plan of release before this court. In this plan, he has proposed his aunt and uncle as proposed sureties. His uncle is a medical doctor and an Anglican minister. His aunt has a bachelor degree in science. Both have submitted affidavits before this court indicating a willingness to act as surety for the applicant. They also submit that their entire family, including the applicant, are close-knit. They assure the court that they understand the role and responsibilities of sureties and are confident in their ability to supervise the applicant if released. Both proposed sureties live in a house by themselves, out of town. They have adult children who do not reside with them, two of whom are professionals; one, a lawyer, and the other, an anaesthesiologist. In addition, the proposed sureties have significant assets and are willing to pledge a larger monetary amount than had been pledged at the Superior Court.
[46] This new release plan before this court is considerably more robust than the plan that was before the bail judge. Notably, it is not more robust because this new plan involves sureties that have significant assets and can put forward more money. Nor is it more robust because one of the new sureties is a doctor, and they have adult children with professional careers. Indicia of a privileged socio-economic background must not be required for this court to find that a release plan is sufficient. Rather, the plan that is now before the court is more robust because the applicant will be taken out of town, away from his peers, and he will be under the close supervision of family who are very committed to ensuring that the applicant complies with his bail conditions. The old plan of release was sufficient, and this new plan simply adds to our confidence because it strongly addresses any possible residual concerns under the primary and secondary grounds. Had the new plan been before the bail judge, he might well have come to a different conclusion.
(c) Conclusion on the Tertiary Ground
[47] It bears repeating that courts have a constitutional responsibility to guarantee reasonable bail unless there is just cause necessitating a denial. The restriction on pre-trial detention should only occur under the tertiary ground in those circumstances where the fundamental rights and freedoms of the accused must be overridden in order to maintain confidence in the administration of justice. We are not convinced that a restriction is necessary in this case.
[48] The applicant is 19 years old. He comes from a supportive family. He has no criminal antecedents. There is no evidence that he has ever breached a court order. There is no evidence or suggestion that he had a gun or that he used a gun at the party.
[49] If a reasonably thoughtful person, one who is not prone to emotional reactions but understands our society’s fundamental values, was informed of the circumstances of this case – namely, that this applicant was released on bail, with the new plan, proposed sureties and proposed conditions – there is no doubt that their confidence in the criminal justice system, and more particularly in the bail system, would be maintained. Conversely, if that same reasonable person, given the same circumstances of this case, were to learn that this applicant was denied bail, their confidence in the administration of justice may be undermined.
D. Conclusion and Disposition
[50] For these reasons, a reasonable member of the public, properly informed about the strength of the Crown’s case and the robust nature of the plan of release, would have confidence in the administration of justice if this court were to grant the applicant bail.
[51] Accordingly, we would make an order under s. 680(1) of the Criminal Code granting bail to the applicant on such customary conditions as may be agreed upon by the applicant and the Crown, including, particularly, the proposed release plan. In light of our conclusion that the first proposed release plan would have been sufficient, we would also point out that it remains open to the applicant to bring an application in the Superior Court of Justice to vary his bail terms in accordance with the terms in the original release plan.
“M. Tulloch J.A.”
“P. Lauwers J.A.”
MacPherson J.A. (dissenting):
[52] I have had the advantage of reading the joint reasons prepared by my colleagues in this appeal. They conclude that the bail judge erred in his assessment of the primary and tertiary grounds for granting or refusing bail set out in s. 515(10) of the Criminal Code. They say that his decision was “clearly unwarranted”: R. v. Oland, 2017 SCC 17, at para. 61.
[53] With respect, I do not agree with my colleagues’ analysis or proposed disposition. I will state my reasons briefly under three headings: Contextual Principles, The Primary Ground, and The Tertiary Ground.
(1) Contextual Principles
[54] There are two contextual principles in play on this bail review.
[55] First, because the applicant Babatunji Fasoranti has been charged with second degree murder, pursuant to s. 522(2) of the Criminal Code the onus was on him to show cause why his detention in custody was not justified within the meaning of s. 515(10) of the Criminal Code.
[56] Second, a panel reviewing a decision of a single judge under s. 680(1) must “show deference to the judge’s findings of fact”: R. v. Oland, 2017 SCC 17, at para. 61.
[57] These are important principles that rightly constrain the scope of a bail review. They matter in this case. The bail judge heard the bail application over the course of a half-day hearing. He heard testimony from a York Regional Police homicide detective. Through this testimony, the bail judge heard about witnesses who would describe the applicant’s close association with the shooter throughout the evening and the applicant’s earlier confrontation that evening with the victim. In addition, the bail judge watched a surveillance video that shows the three minute argument and physical confrontation between the applicant and the victim just before the shooter arrives and shoots the victim.
(2) The Primary Ground
(a) Preliminary point
[58] In Oland, Moldaver J. set out the analytical framework for a bail review, at para. 61:
Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.
[59] This passage clearly establishes that there are two legal tests that can potentially be in play in a bail review – the bail judge “erred in law or in principle” or the decision was “clearly unwarranted”.
(b) The merits
[60] The primary ground in s. 515(10)(a) of the Criminal Code is “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law”.
[61] On this ground, my colleagues conclude: “Contrary to the bail judge’s findings, there was no evidence before the court that could lead to the conclusion that detention was justified under the primary ground in this case.” They reach this conclusion by criticizing, and ultimately labelling “clearly unwarranted”, two aspects of the bail judge’s reasons.
(i) The ‘speculation’ point
[62] My colleagues say:
[T]he bail judge detained the applicant based in part on the speculation there could be an incentive for him to flee the jurisdiction because he is charged with murder and faced a potential life sentence. While the seriousness of the offence is a legitimate concern on the tertiary ground, there was no evidence on the primary ground that the appellant had any incentive to flee the jurisdiction.
[63] With respect, my colleagues’ analysis and conclusion on this issue are unfair to the bail judge.
[64] The bail judge’s reasons under the heading The Primary Ground encompass eight paragraphs. In para. 27, the bail judge states:
As it relates to the indicia set forth above, I make the following findings:
…
b) the applicant has significant roots in the community and there is evidence that he has recently been enrolled at Seneca College on academic probation.
c) there is no evidence that the applicant has any connection with a foreign jurisdiction, and in fact the evidence from his parents is that the applicant does not even have a passport;
d) there is no evidence that the accused has contemplated fleeing the jurisdiction;
…
f) while there is no evidence of any intention on the part of the applicant to flee the jurisdiction, there obviously could be an incentive for the applicant to flee given the fact that he is charged with murder and potentially faces a life sentence. [Emphasis added.]
[65] My colleagues ignore points (b), (c) and (d) in the bail judge’s analysis and seize on point (f) and conclude that it was “an unwarranted finding”. In my view, the combination of ignoring the bail judge’s three firm statements about the unlikelihood of the applicant trying to abscond – especially the statement “there is no evidence that the accused has contemplated fleeing the jurisdiction” – and relying entirely on the bail judge’s statement of the obvious – “there obviously could be an incentive for the applicant to flee given the fact that he is charged with murder” – leads my colleagues to an erroneous conclusion.
(ii) The release plan
[66] On the primary ground, the bail judge found against the applicant. His principal reason was a perceived serious defect in the applicant’s release plan, namely the proposed supervisory role of the applicant’s parents if bail were granted.
[67] Both parents testified at the bail hearing. The bail judge, unlike this court, had the opportunity to see and hear them and evaluate their evidence. The bail judge provided careful and comprehensive reasons (five paragraphs, some of them quite extensive) on this issue. He expressed concern about the central role of the applicant’s parents in the proposed release plan. On a previous occasion, they were not able to properly supervise their daughter when they were sureties for her bail. Based on this concern the bail judge concluded his reasons on the primary ground in this fashion:
This, in my view, raises serious concerns with respect to the ability of [the parents] to properly supervise the applicant, who faces an even more serious charge than the charges that their daughter faced. I am not satisfied on the evidence that the proposed plan of release is one that this court could endorse, given the seriousness of the charge the applicant is facing.
[68] My colleagues reject the bail judge’s careful analysis. They conclude:
In our view, the basis of the bail judge’s conclusion that the applicant’s parents were not appropriate sureties is clearly unwarranted. There was no evidence before the court to suggest that the applicant would behave in the same manner as his sister, should he be granted bail. Furthermore, there was no evidence to suggest he would be non-compliant with any release terms or conditions that would be imposed.
[69] For several reasons, I do not accept this analysis and conclusion.
[70] First, as I said earlier, the Supreme Court of Canada has said clearly that a panel reviewing a decision of a single judge must “show deference to the judge’s findings of fact”: Oland, at para. 61. The finding that a proposed release plan is sufficient or deficient is quintessentially a pure finding of fact or, at the very least, heavily tilted in that direction.
[71] Second, there is no basis for my colleagues’ conclusion that there is “no evidence … to suggest that the applicant would behave in the same manner as his sister” if he were granted bail. The bail judge made his conclusion on this issue after a half-day hearing that included a great deal of information about the applicant and his family including, crucially, the testimony of the applicant’s parents. The bail judge presided over a bail hearing related to a murder charge. He treated it with great care, both in time and reasoning. To say that there was “no evidence” to ground his reasons on a crucial issue that he addressed at some length is simply a significant error.
[72] Third, and tellingly, on this bail review the applicant submitted an entirely different proposed release plan – different residence, different city, different sureties, and different conditions. The plan for him to reside with his parents has disappeared, a clear indication of, if not agreement with the bail judge’s analysis on this issue, at least acceptance of it.
[73] In their reasons, my colleagues cite the test for “clearly unwarranted” set out by Strathy C.J.O. in R. v. K.M., 2017 ONCA 805, and by Slatter J.A. in R. v. Beairsto, 2017 ABCA 254, at para. 5: “Clearly unwarranted is more analogous to a finding that the decision to be reviewed is so contrary to the facts and the law that no reasonable judge could have made it.” With respect, it strikes me as nearly impossible to say this about the bail judge’s decision on the primary ground in this case. The bail judge did a good job and reached a reasonable and supportable decision.
(3) The Tertiary Ground
[74] Technically speaking, in light of my conclusion that the bail judge did not err in reaching the conclusion that the applicant should be detained pursuant to the primary ground, it is not necessary that I address the tertiary ground. However, for the sake of completeness I will do so.
[75] My colleagues conclude that the bail judge erred in his treatment of the strength of the Crown case and the proposed release plan.
[76] On the strength of the Crown case, my colleagues say:
The bail judge anchored his reasons on the strength of the Crown’s case but the evidence does not bear this out. The Crown’s theory linking the applicant to the charge of murder is purely circumstantial. The applicant was not the shooter. Rather, the allegations are that he had been pushed aside after a contentious exchange with the deceased. His co-accused then approached the deceased and shot him.
[77] I see no problem with the bail judge’s analysis of the strength of the Crown case. Although the applicant was not the shooter, he was with the shooter throughout the evening, he confronted the victim at a party earlier in the evening, he confronted the victim in the car later in the evening, he assaulted the victim in the car and continued to have his hands on the victim when the shooter arrived and shot him, and he continued to communicate with the shooter immediately after the shooting and even met with the shooter after the crime was committed.
[78] On the proposed new plan of release, my colleagues say:
The applicant has presented a new plan of release before this court. In this plan, he has proposed his aunt and uncle as proposed sureties.
…
Had the new plan been before the bail judge, he might well have come to a different conclusion. [Emphasis added.]
[79] With respect, I do not agree with this proposition. The new release plan has no relevance to the bail judge’s consideration of the release plan that was before him. The new release plan becomes relevant only if the review panel determines that the bail judge made an error in determining that the primary and/or tertiary grounds justified the applicant's detention pending his trial. Since I conclude that the bail judge made no such error, the new release plan is irrelevant.
Disposition
[80] I would dismiss the application.
Released: March 4, 2021 “J.C.M.”
“J.C. MacPherson J.A.”