The accused was facing a number of charges, including gun and drug possession. At his bail hearing the crown raised concerns that releasing the accused would compromise public safety, due to risk of reoffence. The Defence proposed to alleviate these concerns with a plan of release which included the accused moving in with his cousin; while his sister, who was a university student would move in with them so he would be under constant supervision. The cousin was willing to pledge $100,000.00.
The judge in reviewing the law in this area, conceded that the Crown is not entitled to automatic detention on guns and drugs charges. The guiding concerns were whether â€œif the accused is released, he is going to commit other criminal charges, or if released, the circumstances are such in these allegations that the public will get up and protest and lose faith in the administration of justice.â€
The judge considered that there was no significant violence involved in the list of charges, and that, although the evidence suggested the accused may have had guns and drugs in a residence with children present, this was not proven as fact at this early stage of the proceedings. Although there was some evidence supporting the charges, the accused is entitled to a presumption of innocence, which is a crucial element of the justice system.
The judge found that the proposed plan of release was sufficient, and place the accused under complete house arrest except for medical emergencies.
R. v. [REDACTED]
Her Majesty the Queen, and
Ontario Court of Justice
Heard: [REDACTED], 2011.
Oral judgment: [REDACTED], 2011.
[REDACTED], Counsel for the Crown.
[REDACTED], Counsel for the defendant.
1 [REDACTED]. (orally):-- Thank you both for your submissions. I think the Court is ready to issue its decision at this time verbally from the bench. Please stand up, sir.
2 The accused is charged with serious charges, possession for the purpose of trafficking cannabis, or possession of marijuana. There is a domestic related assault charge against the co-accused, [REDACTED] and there are several charges, firearm related, unauthorized possession of a firearm, possession of firearm knowing its possession is unauthorized, firearm careless storage, careless storage of ammunition, possession of firearm contrary to prohibition order, possession of a prohibited firearm with ammunition and possession of proceeds of crime.
3 These of course are, as indeed acknowledged by the defence, are very serious charges, and the defendant, due to the nature of these charges is in, in his bail in a reverse onus situation, which means in terms of law that the accused has to show cause on a balance of probabilities why the detention in, in pretrial custody is, is not justified pursuant to s. 515(6) of the, of the Criminal Code of Canada.
4 Now the accused also comes with a criminal record.
5 It started -- there are three entries in the criminal CPIC extract. There, there is the entry in 2006 for possession of a schedule 1 substance, in 2006 a conviction of assault and 2007, conviction of fail to comply with probation order. This record, in the circumstances of the seriousness of this offences are not the worst that come before the bail court, however, they are in terms of nexus become serious enough for the charges under consideration in this bail hearing.
6 Now according to law, first of all I must say that this is s. 524 motion by the Crown, which is granted uncontestably to, to the Crown, and therefore any decision of the Court will be based on a global basis for the old and new charges. It is a submission by the Crown that the defence has not met its reverse onus obligation under case law on secondary grounds. Secondary grounds, of course, pertain to s. 515(10)(b) of the Criminal Code, that pertains to the safety of the public in general and more specific, given the domestic assault allegation, to the co-accused or the alleged victim in that charge. But given the nature of the allegations that this a drug case in the presence of loaded handgun, then the issue of public safety is at the heart of consideration for these secondary grounds.
7 Now defence counsel is correct to point out that the case law points to the fact that in this section that concerns public safety, not automatically everyone who is charged even with serious charges must be automatically detained until their trial, but what the Court has to determine, to determine is whether there's a substantial likelihood that if the accused is released on bail until the time he is tried on the charges, he is going to offend in a criminal offence sense or to interfere with the administration of justice.
8 The Court does not agree that the substantial likelihood factor is, is, is the only thing that we, we have to consider in terms of the submission before the Court that this is, this is something that the Court must decide and assess substantial likelihood and then decide whether he is releasable or not on secondary grounds. In the Court's, in the Court's opinion, the substantial likelihood aspect, it's only one of the aspects. This section indicates having regard to all the circumstances, including any substantial likelihood. In other words, this factor is included in all the circumstances.
9 And the circumstances, very briefly, I don't want to, to repeat all of the evidence. The allegations are that in the execution of a police warrant, the accused was found in the premises of his girlfriend, the co-accused, and that's where a handgun, loaded handgun, was hidden and found behind the toilet water tank and it's alleged that initially the accused denied that a gun existed and of course the police allegation is that this gun was found.
10 It is the defence's position, according to the evidence that far, is that there is no strength in the Crown's case as to who is the owner of that gun, as the accused did not live there, although he was forbidden to be there on an undertaking on the domestic assault, assault case. That does not automatically prove that he is the owner of the gun.
11 However, the allegations are very serious because while the police were executing this warrant, they found paraphernalia that indicate in the presence of bags and cash and, and grinders and other issues that -- and I'm not going to quote the famous Duc (ph) what Quoc (ph) says and Duc and so forth and so on. It's -- the allegations is that in this premises, preparation for trafficking of a narcotic was quite evident and that's why he -- the, the police arrested the accused.
12 Now it's in dispute whether the statement given to the police by the accused as alleged, that it was his gun on the basis that -- well, there are triable issues and I'm not going to go into them. There are triable issues to consider the strength in that area. The voluntariness, of course, will come, I'm sure, in a voir dire hearing at the proper forum.
13 The Court did not allow the defence, in what became a defence witness, the examination of the officer who arrested the, the accused before the Court. It limited the, the examination of the arresting officer only to the issue of the statement, which of course is relevant in assessing the Crown's case in terms of, of, of the Crown's strength alleging that the gun was a -- the loaded handgun was the accused's.
14 Be that as it may, the Court must look at the substantial likelihood. The record, criminal record, it's quite connected to - to some of the allegations of, of -- or of trafficking or preparation of, of a narcotic for trafficking, and it cannot be assessed in isolation of the proposed plan.
15 It's been proposed by the defence that the accused must be released under the 24 hour, 7 day supervision under a house arrest in the residence of his cousin, [REDACTED], who is willing to risk 100,000 dollars, basically posting to risk her entire equity and savings in cash and property ownership. And, and also his sister, who is a university student who is willing to move into, into [REDACTED] premises to make sure that the accused is under a total supervision at all times. So the proposed plan, in terms of severity or strictness of, of, of terms are being proposed and are there for the Court to consider.
16 The other issue that the Court needs to address is the case law. There is no need for the Court again, both counsel are every well versed in the case law presented and the ones not presented, but guiding bail courts, and I'm not going to refer to them. It is true that every gun case that involves drugs and other serious allegations is not an automatic detention. That's -- that is quite true in every case all the way from the, from the Superior Court, the, the Ontario Court of Appeal and of course the Supreme Court of Canada. The presumption of innocence in Canada's democratic society must be maintained until someone is convicted in the proper trial beyond a reasonable doubt and that's something that every Canadian cherishes and of course this bail court observes as well. So the case law is quite clear.
17 However, legitimate are the concerns of the Crown as well that especially in a society like the GTA Toronto area, the proliferation of guns, almost on a daily basis, it becomes the subject matter of, of some kind of violence and criminal activity in the, in the media every day and the case law guides the bail court in terms of not pandering to this kind of pressures, only to look at the specific case and see whether - if, if the accused is released, he is going to commit other criminal charges, or if released, the circumstances are such in these allegations that the public will get up and protest and lose faith in the administration of justice.
18 Well, what are the circumstances in terms of the tertiary grounds? I must look at the seriousness of the - of the offences and they're in deed very serious. The gravity of the alleged offences, well, in this case no violence is alleged other than the, the domestic allegation, which did not become predominant in the allegations of this bail. There's no other allegation of any violence or any circumstances of heinous or unexplained allegations that will invoke the public protest.
19 What are the, the surrounding circumstances? The apparent strength of the Crown's case, indeed he was arrested at a place where a loaded gun is found, where paraphernalia for narcotics is found. These are extremely strong circumstances in terms of the Crown's case. Now who is the owner of the gun? Of course in bail time, whether there is DNA or, or fingerprinting, it's too early and hardly we see that in evidence presented in the bail court, but there are triable issues as to -- as indicated by the defence as to the identity of the owner of this handgun found in, in, in the presence of an apartment where indeed there are children present as well.
20 There is no degree of violence that I have to, to assess. I've already indicated the criminal record of the accused and of course the community concerns are there in terms of gun proliferation and drug trafficking.
21 Taking all the case law into account, whether it's the Hall, Morales case, the Pearson case, other guiding case law, the Court finds that the proposed plan can meet the concerns of the Crown and society. I'm going to, to draft a release plan for the accused. I must say before that, that I find the testimony of [REDACTED]. and, and herself as a proposed surety, to be credible and trustworthy. She has so much faith in herself in terms of supervising her cousin, the accused, that she's willing to risk 100,000 dollars and I'll name her as good and sufficient surety in that amount, 100,000 dollars, no deposit.
22 I am a bit concerned about the evasive manner in which the sister responded to the legitimate questions of the Crown counsel in terms of her opinions whether her, her brother could be accused of criminal activity. She was ready, in the Court's opinion, to not accept that possibly, you know, he would be involved either in the possession of a gun or in drug trafficking. However, one cannot blame a close family member of accepting easily these things, but in terms of assessing a surety, I think that she was quite fragile in that area. Despite of that, the fact that she has to be present and move in the premises of [REDACTED]. and risk attending her courses at the [REDACTED], I think that speaks a lot in her favour. So I'm going to name her as good and sufficient surety as well in the amount of 1,000 dollars, no deposit.
23 I am going to impose the following terms and conditions. Sir, you are not to have any contact, association or communication, directly or indirectly, with the co-accused and the alleged victim in the assault charge, [REDACTED], can I have the name again of, of the co-accused.
24 [REDACTED]: [REDACTED].
25 THE COURT: Yes, [REDACTED]
26 [REDACTED]: ... [REDACTED]
27 THE COURT: ... who was bailed out on, on these charges earlier, on the [REDACTED]. That means sir, no communication by electronic means or messages through a third party. And you are not to be found within 500 metres of the premises located at [Text deleted by LexisNexis Canada] in the City of Toronto. Do you have to pick up any personal belongings from that address sir? I understand you did not live -defence counsel, any, any ...
28 [REDACATED]: No.
29 THE COURT: Okay.
30 [REDACTED]: There's no need for him to go there.
31 THE COURT: So there's no need for that. You are to reside with -- at [REDACTED] address, which is again, defence counsel?
32 [REDACTED]: Oh, it's [Text deleted by LexisNexis Canada], apartment 916.
33 THE CLERK OF THE COURT: I'm sorry, I didn't get that.
34 [REDACTED]: [Text deleted by LexisNexis Canada], apartment 916.
35 THE COURT: Okay, and be amenable to the routine and discipline of that address. I'm going to place you sir, under a total house arrest in that address, which means not to be away from that address 24 hours a day, seven days a week, unless in the immediate presence of either surety. The only exception I'm going to make is for medical emergencies only. You are not to possess, until dealt with according to law, any firearms, guns or anything as described as weapon in the Criminal Code. Not to possess, not apply for a firearm acquisition certificate or gun license. You are to keep the peace and be of good behaviour, attend court on time, as and when required.
36 In addition, I'm going to impose this term for you, given the seriousness of the allegations and what is alleged the, the, the task force on, on guns and, and, and drugs had been involved in the execution of this arrest warrant that you underwent.. You are to present yourself at the door of your residence within five minutes of a police request made at any time when you are required to be in your residence and ensure that the police have access to the door of your residence to enable such compliance checks to be conducted. Is there anything else that the Crown counsel, wish to propose?
37 [REDACTED]: I don't think so, Your Worship.
38 THE COURT: Anything -- any questions on behalf of the defence?
39 [REDACTED]: No, thank you.
40 THE COURT: Sir, do you have any questions?
41 THE DEFENDANT: No, Your Honour.
42 THE COURT: Do you understand -- one more. Thank you for pointing that out to me. You are not to possess sir, any, any illicit drugs, non-prescribed by law and also not to possess any paraphernalia or hydroponics equipment, and in addition, not to possess any electronic communication devices. That includes phones, pagers, iPads, tablets, etcetera, unless in the immediate presence of either surety. Do you understand all the terms and conditions, sir?
43 THE DEFENDANT: Yes, Your Honour.
44 THE COURT: Do you have any questions?
45 THE DEFENDANT: No, Your Honour.
46 THE COURT: Do you agree to abide by these terms and conditions?
47 THE DEFENDANT: Yes, Your Honour.
48 THE COURT: Thank you. Suggested date of return?
49 [REDACTED]: Could he come back the [REDACTED], just to make sure he's met the bail.
50 [REDACTED]: That's fine, and ultimately we'll go to the [REDACTED] date, which is the coaccused's return date ...
51 [REDACTED]: Oh.
52 [REDACTED]: ... as well, so.
53 [REDACTED]: You know what? It's only three days away. We might as well do the [REDACTED] then.
54 [REDACTED]: Can I get the [REDACTED] then?
55 [REDACTED]: So if that's easier ...
56 THE COURT: The [REDACTED].
57 [REDACTED]: ... for management purposes.
58 THE COURT: Are you retained on these charges, sir?
59 [REDACTED]: I, I expect to be. It's not ...
60 THE COURT: If you're -- then I'll return it at 1:00 p.m. I only return it to 9:00 a.m. if you're retained.
61 [REDACTED]: Your Worship, could I -- just because the ...
62 THE COURT: Yes.
63 [REDACTED]: ... co -- the co-defendant is actually coming back at 9:00 a.m., it ... .
64 THE COURT: Then we'll put it together.
65 [REDACTED]: That's fine.
66 [REDACTED]: Okay.
67 THE COURT: Is that -- that's fine?
68 [REDACTED]: Yup.
69 THE COURT: Okay, 9:00 a.m., in 301, to set a date on these charges.