



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Whyte, 2014 ONCA 268

DATE: 20140404

DOCKET: M43365 (M42958)

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tassandra Whyte

Applicant

Marcus Bornfreund, for the applicant

Christine Bartlett-Hughes, for the respondent

Heard: February 18, 2014

An application for review under s. 680 of the
Criminal
    Code
of the order of the Honourable Justice Speyer of the Superior Court
    of Justice dated October 31, 2012, denying release of the applicant on bail
    pending her trial on a charge of accessory after the fact to murder, and the
    ruling of Justice OMarra of the Superior Court of Justice dated May 10, 2013, dismissing
    the application for lack of jurisdiction, pursuant to the order of Associate
    Chief Justice Hoy dated October 31, 2013.

Tulloch J.A.:

A.

OVERVIEW

[1]

The applicant, Tassandra Whyte, brought an application for a bail review
    in this court under s. 680(1) of the
Criminal Code
, R.S.C. 1985, c.
    C-46 (the 
Code
). She seeks review of the detention order made by Speyer
    J. of the Superior Court of Justice on October 31, 2012, which denied the applicants
    release pending her trial on a charge of accessory after the fact to murder,
    and of the ruling made by OMarra J. of the Superior Court on May 10, 2013, which
    dismissed her second bail application for lack of jurisdiction. For the reasons
    that follow, I would find the second bail judge erred in declining
    jurisdiction, set aside the detention order and impose an order granting the
    applicant bail.

B.

BACKGROUND

[2]

I begin by briefly setting out the nature of the offence with which the applicant
    is charged and the procedural history of this matter.

(1)

The nature of the alleged offence

[3]

The applicant is charged with the offence of accessory after the fact to
    murder. Mark Moore is charged with  among many other offences  the murder of Jahmeel
    Spence on September 21, 2010. Sometime later, Mr. Moore became a suspect in the
    murder investigation. In August of 2011, the investigators sought and obtained
    a Part VI Authorization to covertly intercept telephone communications between multiple
    targets. The applicant was Mr. Moores girlfriend throughout 2010 and into the fall
    of 2011, and was also his surety for part of that time. As such, she was named
    as one of the targets in the application. Other targets included Mr. Moore, his
    mother, Hyacinth Moore, and the applicants sister, Nadine Keen.

[4]

As a means of stimulating discussion over the monitored phone lines, the
    police held a press conference on the one-year anniversary of Mr. Spences
    death, at which they announced that they believed that the getaway car for the
    murder was a blue Honda, and that they were continuing to search for that
    vehicle. The police knew that Mr. Moore was operating a blue Honda at the time
    of Mr. Spences homicide. The vehicle, which Mr. Moore had subsequently painted
    black, was registered in the applicants name.

[5]

The Crown alleges that, while in custody on firearms and drug charges, Mr.
    Moore called the applicant on several occasions to discuss the press conference
    and to urge her to amend the registered colour of the car from blue to black at
    the Ministry of Transportation (MTO). Eventually, the applicant attended at
    the MTO to change the vehicles colour on the registration form. The change
    applied retroactively to the entire history of the vehicle. During a subsequent
    intercepted call, the applicant told Mr. Moore that she had left the vehicle
    documents with Mr. Moores mother, Hyacinth Moore, so that they would not be
    found if a search warrant for her premises was executed.

[6]

During this period, the applicant lived in the same building as and
    across the hall from two of the Crown witnesses. During a number of the applicants
    intercepted calls with Mr. Moore, police heard them speaking about harming one
    of the witnesses. On one call, the applicant was intercepted engaging in an intimidating
    manner with one of the witnesses in the buildings elevator.

[7]

Mr. Moores preliminary hearing for the firearm-related offences was
    held during the timeframe of the wiretap authorization. The applicant attended
    the hearing on several occasions. During one of the applicants visits to the
    preliminary hearing, the Crown adduced surveillance evidence that showed an
    individual wearing a baseball hat. The Crown alleges that during the course of
    this evidence, the applicant made a note demonstrating a suggestion that she
    should ask Mr. Moore if she could throw away his hat because they may try to
    come over to [his] house and retrieve that item.

(2)

Procedural history

[8]

The applicant was arrested on November 10, 2011 and detained pursuant to
    s. 515(11) of the
Code
. The date for her trial has not yet been set,
    and her trial will not commence until after the completion of Mr. Moores
    trial.  Mr. Moores trial is currently set to commence on January 7, 2015, and
    is estimated to last for approximately four months.

[9]

On October 31, 2012, the applicant applied for bail for the first time
    before Speyer J. of the Superior Court. At the time of her bail hearing, the applicant
    had already been in custody for a year.

[10]

The
    bail judge denied the applicants application for bail on the secondary ground in
    s. 515(10)(b) of the
Code
 namely, that the applicants detention was
    necessary both for the protection or safety of the public and to ensure that
    the applicant did not interfere with the administration of justice. The bail
    judge noted that, if the underlying charge of murder was successful, the applicant
    could be facing, in all probability, a significant penitentiary term of
    imprisonment. The Crown was willing to consent to bail with a responsible
    surety  an unusual concession where an accused is charged with a s. 469
    offence. The applicant failed to produce a surety, and the bail judge  who
    concluded that one-on-one supervision of the applicant was indispensable  was
    unwilling to release her without one. The bail judge invited the applicant to
    renew her application if she found an appropriate surety and conveyed his
    willingness to consider even sureties with a dated criminal record.

[11]

On
    May 10, 2013, the applicant brought a second bail application before OMarra J.
    of the Superior Court, seeking interim release on the basis of a change in
    circumstances. She still did not have a surety, but argued that the passage of
    time itself constituted a material change in circumstances. The second bail
    judge dismissed the application for lack of jurisdiction, holding that a
    renewed application for bail based on change of circumstances could only be by
    review of this court.

[12]

In
    a decision dated October 31, 2013, Hoy A.C.J.O. directed a review of the applicants
    application by a full panel of this court, pursuant to s. 680 of the
Code
.
    Counsel for the applicant argued before her that the sentence for an offence of
    accessory after the fact to murder ranges from a conditional sentence to five
    years incarceration. Counsel further submitted that on these facts, the
    maximum possible sentence that could reasonably be imposed is three years. The
    Associate Chief Justice observed that if the applicant is given credit for her
    pre-trial custody at a rate of 1.5:1, the applicant will have served the equivalent
    of a five-year sentence by the time her trial commences. Hoy A.C.J.O. held that
    the applicants claim, while novel, had a reasonable prospect of success.

C.

DISCUSSION

[13]

Pursuant
    to s. 680 of the
Code
, the applicant seeks review of the detention
    order initially imposed by the bail judge and the dismissal of her second
    application by the second bail judge. The applicant attacks these decisions on
    effectively two grounds.
[1]

[14]

First,
    she submits that the second bail judge erred in law in finding that he lacked
    jurisdiction to review the application. Second, she contends that her continued
    detention is not warranted, considering the amount of time she has spent in
    jail and the sentence she faces if convicted. She also points to her current
    personal circumstances, which have lessened the risk that she will interfere
    with the administration of justice. These two sets of changes, she argues, are
    material changes in circumstance that justify her release pending trial.

[15]

I
    address these issues in turn.

(1)

The second bail application in Superior Court

[16]

Section
    522(1) of the
Code
provides that anyone charged with a s. 469 offence,
    which includes accessory after the fact to murder, may be granted judicial
    interim release only by a Superior court judge. Section 522(4) adds the
    following: An order made under this section is not subject to review, except
    as provided in section 680.

[17]

Section
    680 of the
Code
provides the legal mechanism for review, by the Court
    of Appeal, of an order of a Superior court judge that grants or refuses a
    judicial interim release order for a s. 469 offence.

[18]

In
R. v. Seti-Mayinga
, [2001] O.J. No. 6335 (S.C.), Campbell J, canvassed
    the jurisprudence of other provinces and concluded the following at paras. 27-
    30:

The authorities in other provinces, although perhaps divided,
    favour a purposive interpretation of s. 522(4) which permits a new hearing or
    motion to vary on the basis of changed circumstances.

From a practical point of view, it does not make administrative
    sense to funnel through the Court of Appeal, before trial, every variation in
    the terms of a bail order necessitated by changed circumstances. Changes in
    reporting conditions, changes in the identity of sureties or the form or
    quantum of their recognizances, changes in employment and similar matters are
    minor administrative issues that should not require the full panoply of the
    Court of Appeal machinery contemplated by s. 680.

It is not unusual for the circumstances of the accused or the
    sureties to change during the months or even longer between the release order
    and the trial. As the Newfoundland Court of Appeal pointed out in
R. v. T. (G.J.)
,
    the circumstances that give rise to the release are not necessarily static
    throughout the pretrial period. Changes in circumstances may give an entirely
    new complexion to the continued reasonableness of the release conditions, and
    it is difficult to think that Parliament intended to complicate or delay the
    opportunity to respond appropriately one way or the other, to changed circumstances.

As Doherty J.A. said in a different context in
R. v.
    Daniels

(1997), 35 O.R. 737, 119 C.C.C. (3d) 413
(Ont.
    C.A.), a fresh application based on a material change in circumstances makes
    more practical sense than does a full appeal by way of review. A purposive
    interpretation of the bail provisions suggests that a fresh hearing or motion
    to vary based on changed circumstances is preferable because it provides
    greater flexibility and greater access to judicial remedies for both the Crown
    and the accused, than a full blown appeal by way of review.

[19]

Recently,
    the Alberta Court of Appeal arrived at the same conclusion in the case of
R.
    v. Kuol
, 2013 ABCA 380.

The court stated the following, at para.
    10:

We favour the weight of the authorities from Ontario, Alberta,
    Nova Scotia and Manitoba referred to above and find that we, as a Court of
    Appeal, do have jurisdiction pursuant to s. 680 to consider applications for
    release of detention based solely on a change of circumstance.  However, we
    also think it best that such applications ordinarily be returned to the initial
    court for reconsideration.

[20]

After
    reviewing the relevant authorities, I am of the view that the second bail judge
    erred in dismissing the applicants application for lack of jurisdiction.

[21]

The
    relevant practice in Ontario can be summed up as follows:  Where an applicant
    is detained pursuant to a charge for an offence listed in s. 469 of the
Code
,
    the appropriate procedure for challenging the s. 515(11) denial of bail turns
    on the nature of the applicants grievance. Where the applicant disputes the
    correctness of a bail decision of a Superior Court of Justice or Court of
    Appeal judge, the proper course is to seek review by a court of appeal under s.
    680 of the
Code
:
R. v. Daniels
(1997), 35 O.R. (3d) 737
    (C.A.), at p. 746. Where an applicant concedes the validity of the bail
    decision but seeks a review on the basis of a change in circumstances, the
    normal course is to bring a second bail application in Superior Court:
R.
    v. Robinson
, 2009 ONCA 205, 95 O.R. (3d) 309, at para. 5;
R. v.
    Klymchuk
(2007), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48;
R. v.
    Saleh
(2007), 252 C.C.C. (3d) 521 (Ont. S.C.). This second avenue reflects
    the considerable common sense in returning to the originating court, creating
    an evidentiary record and obtaining the views of a judge of first instance on
    the impact of the new or changed information on the issue of interim release:
R.
    v. Boyle
, [2006] O.J. No. 5094 (C.A.), at para. 3.

[22]

The
    availability of this second procedure does not foreclose consideration of a
    change in circumstances on a s. 680 application, however: see
Daniels
,
    at p. 747;
Boyle
, at paras. 3-4. In other words, the Superior Court of
    Justice and the Court of Appeal have concurrent jurisdiction to decide whether
    there has been a material change of circumstances warranting judicial interim
    release.

[23]

In
    attributing exclusive jurisdiction to this court and dismissing the applicants
    bail application for lack of jurisdiction, OMarra J. erred. He stated that if
    there is to be a renewed application for bail based on change of circumstance,
    it will be by review of the Ontario Court of Appeal. As explained above, this
    misstates the law: both the Superior Court and Court of Appeal have jurisdiction
    to consider an application based on change in circumstance.

[24]

I
    will now address the substance of the application pursuant to the order of Hoy
    A.C.J.O. For the reasons below, I would grant the application.

(2)

A material change in circumstances

[25]

Courts
    have recognized that a material change in circumstances will warrant judicial
    interim release where, for example, in the bail pending appeal context,
    additional sureties become available,
R. v. Baltovich
(2000), 47 O.R.
    (3d) 761 (C.A), or where the applicant offers a new legal argument and
    rearticulates existing arguments in a more comprehensive form,
Daniels
,
supra
.

[26]

In
    my view, the assessment of whether a material change in circumstances exists in
    a particular case depends on the actual considerations that underpinned the
    first bail judges refusal of bail. In other words, the issue is whether the
    change in circumstances is relevantly material.
[2]

[27]

This
    application raises two competing principles: the liberty interest, and the need
    to maintain the integrity of the trial process.  In balancing these two
    principles, I am satisfied that based on the unique factual situation of this
    case, a release order can be fashioned to satisfy the secondary ground
    considerations.

[28]

Our
    society places a high value on the liberty of each individual, and the loss of
    that liberty should not be taken lightly. As noted by Iacobucci J. in dissent
    in
R. v. Hall
, 2002 SCC 64, [2002]
    3 S.C.R. 309,
at para 47:

At the heart of a free and democratic society is the liberty of
    its subjects. Liberty lost is never regained and can never be fully compensated
    for; therefore, where the potential exists for the loss of freedom for
even a day
, we, as a free and democratic society,
    must place the highest emphasis on ensuring that our system of justice
    minimizes the chances of an unwarranted denial of liberty.

[29]

The
    judicial interim release provisions of the
Code
strongly favor
    affording accused persons bail pending their trial: R.J. Sharpe and K. Roach,
The
    Charter of Rights and Freedoms
, 5th ed. (Toronto: Irwin Law, 2013), at p.
    291. [P]re-trial detention is extraordinary in our system of criminal
    justice,
R. v. Morales
, [1992] 3 S.C.R. 711, at p. 728, Lamer C.J.,
    and to pretend that pre-sentence imprisonment does not occasion a severe
    deprivation and that it is not punitive, would result in the triumph of form
    over substance:
R. v. McDonald
(1998), 40 O.R. (3d) 641 (C.A.), at p.
    658.

[30]

As
    Gonthier J. noted in dissent in
Morales
,
supra
, at p.
753:

[T]he purpose of a denial of bail is neither punishment, nor is
    it retribution or reform. Rather, it is better understood as a part of the
    process by which those aims of the law may eventually be achieved by
    safeguarding the proper functioning of the justice system. Far from obscuring
    the importance of liberty, a consideration of the administration of justice in
    these broader terms is necessary for the due recognition of the ways in which
    the administration of justice allows liberty to be properly respected.

[31]

An
    important countervailing principle, however, is the need to maintain the
    integrity of the trial process, by ensuring that witnesses are not deterred
    from participating in the trial process by intimidation and interference. In this
    case, an important aspect of the allegations against the applicant was her
    alleged attempt to intimidate and interfere with Crown witnesses.

[32]

With
    these observations in mind, I now turn to the material changes in this case
    that the applicant identifies as warranting her release.

(a)

Changed Circumstances that Reduce the Need for a Surety

[33]

First,
    the applicant points to a set of significant changes in the applicants
    personal circumstances that reduce the risk of her interfering with the
    administration of justice, and consequently reduce the need for a surety.

[34]

One
    aspect of this is the applicants proposed living arrangements if she is
    released. She intends to reside in community housing in York Region or Brampton
    and to complete her studies in early childhood education at Seneca College in
    North York. While waiting to be accepted into community housing, she could
    reside with her mother in Scarborough, although that is not her preference, or
    in a womens shelter in Toronto. The witnesses resided in a building in
    Scarborough. The applicant would not be returning there.

[35]

Counsel
    also advised the court that the applicant no longer has any relationship with
    the co-accused.

[36]

The
    applicant agrees to abide by all terms that require reporting, supervision and
    compliance with all bail terms and not to have any communication with the
    witnesses. She has served an extended period in Vanier Institute and in her
    affidavit points to that circumstance as a motivating factor for her to abide
    strictly by any bail terms that may be imposed.

[37]

In
R. v. Baltovich
(1991), 6 O.R. (3d) 11, a previous s. 680 application
    before this court where bail had been initially denied on the secondary ground,
    Doherty J.A. acknowledged, at p. 14, that the time an accused has spent in
    custody awaiting trial diminishes the chance that the accused will interfere
    with witnesses and evidence, and is relevant to these concerns:

In our view, the chances that the
    applicant will interfere with witnesses or evidence, if released, have
    substantially diminished over the last year. He will obviously be aware if
    released that he will be the subject of police attention and he must know from
    prior experience that any effort to contact witnesses or to deal with potential
    evidence can operate to his detriment. I am sure his counsel will impress that
    point on him.

Similar considerations apply in the instant case.

[38]

There
    have now been material changes in the applicants circumstances since she was
    first arrested two and a half years ago that make it more likely that she will,
    in her own best interest, abide by her bail terms and not engage in activity
    contrary to the public interest and the due administration of justice, without
    the involvement of a surety.

(b)

The Post-Bail Hearing Trial Delay

[39]

Second,
    the applicant argues that the passage of time and the probable outcome of
    sentencing together constitute a material change in circumstances entitling her
    to changed bail conditions on the facts of this case.

[40]

Although
    the bail judge anticipated that the applicants trial might not be held before
    September 2014, it is now not scheduled and will not be held before May 2015,
    at the earliest.

[41]

The
    applicant was arrested on November 10, 2011 and has been held in custody since
    that date. Crown counsel agreed at the review hearing that if the applicant
    were to plead guilty now, she would most likely be released on the basis of
    time served because the appropriate sentence is three years. I note that if she
    were released after pleading guilty, she would not be under any supervision.

[42]

The
    result is that  counting pre-trial custody on a 1 to 1 ratio  the applicant
    will have served the sentence she is likely to receive by November 2014, long
    before she will go to trial. If a 1.5 to 1 ratio (which Crown Counsel conceded
    was appropriate) were applied to the applicants pre-trial custody, she will
    have served a sentence at the upper limit of the sentencing range well before
    her trial commences in May 2015. Furthermore, as a result of her co-accuseds
    imminent application for severance of his murder charges, it is not clear that
    her trial will commence even then.

[43]

In
    my view, this is a material change in circumstances that, coupled with the
    reduced risks that the appellant poses of interfering with potential witnesses
    and thus obstructing justice, favours granting judicial interim release. The
    severance of the applicants trial from her former co-accuseds trial, and the
    change in the anticipated date of trial, occurred after the bail judge rendered
    his decision. The amount of time the applicant will now serve in pretrial
    custody in excess of her anticipated sentence if convicted has increased
    significantly. As stated by Hill J. in
R. v. White
, 2010 ONSC 3164, at
    para. 10:

[P]ublic confidence in the administration of justice, and in
    particular in the judicial interim release regime, would be substantially
    eroded by pre-trial incarceration of presumptively innocent individuals to the
    equivalency or beyond the term of what would be a fit sentence if convicted.

D.

Conclusion

[44]

I am satisfied that the applicant has
    established a material change in circumstances. In the circumstances, a
    judicial interim release can be fashioned to satisfy any public safety concerns
    that may have existed at the time of her initial detention. Accordingly, I
    would order the applicant released on the terms set out in Schedule A.

Released: KF April 4, 2014

M. Tulloch J.A.

I agree. K. Feldman
    J.A.

I agree. P. Lauwers
    J.A.


Schedule A

The applicant is:

·

ORDERED RELEASED
on
    her own recognizance in the amount of $500, without deposit, without surety,
    and with conditions;

CONDITIONS OF RELEASE:

·

Attend the Superior Court of
    Justice at 361 University Avenue, Toronto, as required;

·

Keep the peace and be of good
    behaviour;

·

Advise the Registrar of the
    Superior Court of Justice, 361 University Avenue, Toronto, M5G 1Y1, Room 241,
    of any change of address IN WRITING within twenty-four hours of the change;

Additional conditions:

·

Remain in the Province of Ontario;

·

Report to the Toronto Bail
    Program, Room 162, Old City Hall, 160 Queen Street West, Toronto, forthwith
    upon release (between 8:00 a.m. and 4:00 p.m.) and thereafter as required by
    the Toronto Bail Program.

·

In addition to any
    reporting required by the Toronto Bail Program, report thereafter to the
    Reporting Centre, 2440 Lawrence Avenue East, Toronto, M1P 2R5 (416-808-5700),
    and thereafter twice weekly each Monday and Friday, except statutory holidays;

·

Deposit her passport
    with the officer-in-charge, Officer Idsinga #6830, or designate, Toronto Police
    Service Homicide Squad, 40 College Street, Toronto, within 48 hours of release;

·

Reside at an address
    approved in advance, in writing, by the Toronto Bail Program, not change
    addresses without the approval of the Bail Program, and advise the reporting
    officer of any change of address in writing within twenty-four hours in advance
    of the change;

·

Seek and maintain
    gainful employment or continue to attend school;

·

Observe a curfew from 11 p.m. to 6
    a.m., 7 days a week;

·

Refrain from association or
    communication with: Kevin Williams; Guyvin July; Deah Reid (nee Huff); Barbara
    Marten; Nadine Keen; Mark Moore; Hyacinth Moore; Naseem Khan; Tafra Neil;
    Robert Hurdon; Neil Costello; Mark Costello; Shivonne Clarke; and any person
    known to the applicant as a member of the following families of the victims:
    the Spence family; the Facey family; the James family; and the Cole family.

·

Refrain from possessing any
    firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device,
    ammunition or explosive substance and surrender to a peace officer, a firearms
    officer, or a chief firearms officer any such items currently in the
    applicants possession, together with every authorization, licence, and
    registration certificate relating thereto and held by the applicant.

·

Keep 500 metres away from: 370
    McCowan; 24 Hapley Ave; Greenbrae Circuit; and 50 Tuxedo Ave.

·

Answer the front door of residence
    upon the request of a police officer.





[1]
The applicant, through her counsel, abandoned the argument in her factum that
    her prolonged detention constitutes cruel and unusual punishment within the
    meaning of s. 12 of the
Charter of Rights and Freedoms
.



[2]

The Crown conceded from the first bail application
    that the applicant was releasable with appropriate supervision.

There are no primary or tertiary ground concerns.


