Court Information

Ontario Court of Justice Toronto Region

Date: November 14, 2018

Between:

Her Majesty the Queen

v.

Caesar Adafia

Reasons for Judgment: Judicial Interim Release Hearing

Hearing Date: November 9, 2018

Judgment: November 14, 2018

Before: Mary A. Ross Hendriks, J.P.

Counsel:

• Mr. M. Sabat, Crown Counsel
• Mr. A. Saini, Defence Counsel

Introduction

1The accused, Caesar Adafia, is a 31-year old man. He is a Canadian citizen, single and he has no dependents. Crown counsel believes that Mr. Adafia works for "Empire Moves", but his proposed sureties all testified that he works with his brothers in their family business, "Naturally Rich", which is their own line of casual clothing.

2Mr. Adafia has no outstanding charges, nor any outstanding warrants. His criminal record was admitted for the purpose of this bail hearing, which is set out in detail below.

3This is a reverse onus bail hearing by virtue of the nature of the charges which he currently faces.

4There are four Informations before me at this bail hearing. Two of the Informations involve allegations of drugs, which have been delegated to the provincial Crown by the federal Crown for the purpose of this bail hearing.

His Charges

5In a sworn Information dated October 23, 2018 ("Information #1"), he faces the following 13 charges, alleged to have taken place in Toronto on October 22, 2018:

• count #1 - impaired operation of a motor vehicle, drug, contrary to s. 253(1)(a) of the Criminal Code
• count #2 - careless use of a firearm, contrary to s. 86(1) of the Criminal Code
• count #3 - carry ammunition in a careless manner, contrary to s. 86(1) of the Criminal Code
• count #4 - possess a prohibited, restricted or non-restricted firearm, namely a handgun, without being the holder of a licence permitting such possession, contrary to s. 91(3) of the Criminal Code
• count #5 - unlicensed person possessing a prohibited weapon, which was not a replica firearm, being a handgun, contrary to s. 91(2) of the Criminal Code
• count #6 - possession of a prohibited firearm knowingly not holding a licence and registration certificate, contrary to s. 92(1) of the Criminal Code
• count #7 - possession of a prohibited weapon, not a replica firearm, namely a handgun, knowing no authority, contrary to s. 92(2) of the Criminal Code
• count #8 - possession of a loaded regulated firearm, contrary to s. 95(1) of the Criminal Code
• count #9 - possession of a firearm obtained by crime, contrary to s. 96(1) of the Criminal Code
• count #10 - possession of a weapon dangerous to public peace, contrary to s. 88(1) of the Criminal Code
• count #11 - occupy motor vehicle with a prohibited firearm, contrary to s. 94(2) of the Criminal Code
• count #12 - possess firearm with altered serial number, contrary to s. 108(1)(b) of the Criminal Code
• count #13 - possess a prohibited device, namely a magazine, knowing no licence, contrary to s. 92(2) of the Criminal Code

6In an Information sworn on October 23, 2018 ("Information #2"), Mr. Adafia faces the following 3 charges, which are alleged to have occurred in Toronto on October 22, 2018:

• count #1 - possession of a Schedule I substance, to wit, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ("CDSA")
• count #2 - unlawful possession of a Schedule I substance, to wit: cocaine, contrary to s. 4(1) of the CDSA
• count #3 - possession of proceeds obtained by crime (over $5000), to wit: money, contrary to s. 354(1) of the Criminal Code

7In an Information sworn on October 31, 2018 ("Information #3"), Mr. Adafia faces the following 4 charges, which are alleged to have occurred in Toronto on October 29, 2018:

• count #1 - possession of a Schedule I substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA
• count #2 - possession of a Schedule I substance, to wit: MDMA, for the purpose of trafficking, contrary to s. 5(2) of the CDSA
• count #3 - possession of a Schedule I substance, to wit: crystal methamphetamine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA
• count #4 - possession of proceeds obtained by crime (under $5000), to wit: money, contrary to s. 354(1) of the Criminal Code

8In an Information sworn on October 31, 2018 ("Information #4"), Mr. Adafia is alleged, on October 29, 2018, in Toronto, to have been in possession of a prohibited weapon, to wit: a switchblade knife, while knowingly not being licensed, contrary to s. 92(2) of the Criminal Code.

9Crown counsel is seeking his detention on the secondary and tertiary grounds.

His Criminal Record

10Mr. Adafia's criminal record has been admitted for the purpose of this bail hearing (Exhibit 5). It provides the following convictions:

• December 15, 2008 - assault with a weapon; sentence: suspended sentence and probation for 18 months
• January 21, 2014 - impaired driving; sentence: 2 years driving prohibition, 30 days jail, and one year of probation
• June 5, 2016 - possession for the purpose of trafficking and drug possession; sentence: $500 fine for each
• June 28, 2016 - driving while disqualified, sentence: 30 days intermittent, and prohibited from operating a motor vehicle for 3 years.

The Allegations

11Crown counsel provided to me, on consent, a synopsis of the allegations of October 22, 2018, contained in Informations #1 and #2 (Exhibit 1); an occurrence report of a Suspicious Incident dated October 24, 2018 (Exhibit 2); a synopsis of the allegations of October 29, 2018, which summarize Informations #3 and #4 (Exhibit 3); and a collection of 9 photographs taken by Toronto Police Services ("TPS") on October 22, 2018 (Exhibit 4).

12In summary, the incidents of October 22, 2018 formed the basis for TPS to obtain a search warrant, which was executed at Mr. Adafia's home several days later, that resulted in the additional two sets of charges.

Allegations from October 22, 2018 on Highway 27 near Rexdale Boulevard, Toronto

13On October 22, 2018, at about 5:14 am, a civilian witness driving on Highway 27 observed a black Range Rover on the west side of Highway 27, in a ditch. The witness saw the lone occupant of this vehicle attempting to exit the vehicle, and the civilian witness believed that this person was intoxicated.

14The civilian witness contacted the police and followed this person. The civilian witness described this person's clothing, and said that he had a bag across his body. The civilian witness provided the police with a statement.

15A police officer stopped Mr. Adafia at the northeast corner of Highway 27 and Queensplate Drive. This officer made a number of findings that Mr. Adafia was impaired, including: he walked very slowly; swayed from side to side; was unable to walk straight; had a strong smell of alcohol; could not stand still; his eyes were red and droopy; and he spoke slowly.

16The officer requested his identification twice, and Mr. Adafia provided him with two bank cards. During his arrest, Mr. Adafia also provided the officer with his OHIP card.

17Mr. Adafia allegedly asked this officer, "What is the licence plate of the Range Rover?"

18During a search, the officer found that Mr. Adafia's pants were wet, and inside his front pant pocket, the officer found a cell phone and what appeared to be cocaine. Mr. Adafia had a satchel across his chest, which was also searched. Inside of it, the officer located money, which was folded and had elastic bands around it. Inside Mr. Adafia's coat pocket, the officer found a loaded firearm and another cell phone.

19When the officer tried to put the accused in his scout car, Mr. Adafia purportedly told the officer that his life was over and to do him a favour and just shoot him. According to the synopsis, Mr. Adafia was very emotional and continued to plead with the officer to shoot him.

20Once Mr. Adafia was in the police scout car, the officer removed the magazine from this gun. When he racked the gun, one bullet flew out of the ejection port and another bullet fell out of the magazine.

21Mr. Adafia was advised of his charges, taken to 23 Division, and held for a bail hearing.

22Mr. Adafia was tested for alcohol and drugs, and his readings were 78 mgs and 80 mgs for alcohol, and a DRE test indicated that he was also impaired by drugs.

23The money seized inside his satchel was counted, and it was $29,290.

24The firearm was described as a Taurus, 9 mm, which was loaded with two bullets, and there were 9 other bullets found in the magazine.

25The suspected cocaine seized from Mr. Adafia weighed 13.19 grams. The testing results were not available at the time of this bail hearing.

Suspicious Incident

26On October 24, 2018, the TPS received a radio call of a suspicious incident, at 1185 The Queensway, Toronto. This is a 12-storey condominium building, consisting of two towers and three levels of parking. Elevators 1 and 2 belong to the west tower, and elevators 3 and 4 belong to the east tower.

27A large dent was found in elevator 1, and what is believed to be a piece of a bullet was also found.

28The property manager had called the police because he had received emails from two different tenants in two different units, who both complained that they each heard a huge bang around 3 am on October 22, 2018, and it sounded like a firework. The second tenant noticed a dent in the elevator.

29The cleaner had found what is believed to be a bullet projectile inside of the elevator, but she left it for the property manager, thinking it was part of a cleaning machine. This copper fragment has been sent for testing by TPS.

30The property manager advised the police that there are no security cameras in the elevators or on any floor. The condominium does, however, have security cameras on the main floor and ground floor. The property manager provided this footage to TPS, along with the fob records for the same time period.

31Elevator 1 was observed by TPS to be dented, but police did not find any firearm casings.

32Detective Constable Lee testified that he reviewed the surveillance footage from October 22, 2018 on October 27, 2018, and observed that two males entered the building at 2:57 am. One male was Caucasian, 40 to 50 years old and the second male was Black, 30 to 35 years old, pigtail dreads, wearing a hooded sweater that said "Truerl" at the bottom. The hood on the sweater was not up when he entered the building. On the video, the second male uses a fob to enter the building.

33Detective Constable Lee testified that he made a still photo of the two males from the surveillance video and that he showed this photo to the person who works in front desk concierge at the condominium. He identified the Black male as being Mr. Adafia, who resides in unit #1201 in this building. According to this employee, Mr. Adafia lives alone in this unit, has a parking spot, and storage locker, and has registered a black Land Rover as his vehicle.

34According to the written summary created by Detective Constable Lee of this suspicious incident, upon arrest, Mr. Adafia provided a different home address to police. Detective Constable Lee was aware of this other address when he investigated this suspicious incident, and obtained a search warrant for Mr. Adafia's unit at 1185 The Queensway, Toronto.

35Upon execution of the search warrant at his residence, the police seized a quantity of cocaine (14.09 grams), MDMA (0.38 grams), crystal meth (1.27 grams), a digital scale, $1000 in cash, documents in Mr. Adafia's name, and a switchblade knife.

36Mr. Adafia was charged as a result of what was found inside of his residence (Informations #3 and #4). He has not been charged with respect to the suspicious incident. However, Detective Constable Lee testified that the hooded sweater worn by Mr. Adafia entering the condominium building is the same hooded sweater he was wearing at the time of his arrest, and also matches what he was wearing in photographs taken by the TPS subsequent to his arrest.

The Proposed Plan of Release

37Defence counsel proposed three sureties, Mr. Adafia's mother, his older brother, and his step-father. An exclusion order was made once the allegations had been presented.

Ms. Vanella Braithwaite Campbell

38Mr. Adafia's mother, Ms. Vanella Braithwaite Campbell, has offered to be a residential surety for him. She is 60-years old, and a Canadian citizen. She rents her three-bedroom Brampton residence, 508-4 Knightsbridge Rd., Brampton, with her husband and her son Kristos Bidwell.

39Ms. Campbell works full-time for […], and has done so for 25 years. She earns $79,000 per year from this position. She works from 7:30 am to 3:30 pm, and she leaves home at 6 am, and returns home by 5 pm. She is prepared to pledge $10,000 for his release.

40She has acted in the past as a surety for her son Matthew Bidwell, without any issue. She is not currently a surety for anyone else. During cross-examination, she admitted that she went off of Matthew's bail recently and was replaced by one of his cousins, in order to be able to offer herself as a surety for Mr. Adafia.

41Ms. Campbell testified that she believes Mr. Adafia will listen to her if she is his surety, and she urged me to set a very strict bail. She said that she has been a surety for Matthew a number of times, and that he has listened to her and not breached his bail. She has never been a surety for Mr. Adafia in the past.

42Ms. Campbell testified that she has a landline telephone in her home, and that she will call home when she is at work, on her lunch, and on her break, to ensure that he is at home if he is granted a house arrest bail.

43Her plan is that while she and her husband are at work during the daytime, her son Kristos Bidwell will be at home, to watch Mr. Adafia.

44During cross-examination, Ms. Campbell confirmed that Mr. Adafia has lived at 1201-1185 The Queensway, Toronto, for the last six months, and that he rents this condominium unit.

45Ms. Campbell also testified that her husband owns the Range Rover, and that Mr. Adafia phones and asks to borrow this motor vehicle from time to time.

46It was clear from her testimony that she did not know Mr. Adafia has been disqualified from driving since 2016, or else she and her husband would not have lent him the Range Rover to drive. She also did not know about his impaired driving conviction from 2014.

47Ms. Campbell testified that Mr. Adafia started a business last year, and registered it in June, called, "Naturally Rich" clothes. His partners are his brothers, Matthew and Kristos. They design the clothes, have them manufactured, and sell them in stores.

48Prior to attending this bail hearing, his mother was aware of his drug convictions from 2016, and said that her other sons had told her about this conviction. When shown his criminal record, she said that she was aware he had also had a weapons charge, but did not know the details of his 2008 conviction for assault with a weapon.

49She agreed with Crown counsel that her son had been dishonest with her about being disqualified from driving and still borrowing his parents' vehicle.

50When asked by the Crown why her son would have a gun, her reply was, "I can't think of any reason to need a gun unless you're in the law." When asked again why he would have a gun and $30,000 with him, she replied, "I can't for the life of me...why he'd need a gun." She acknowledged the possibility that Mr. Adafia may be a drug dealer.

51She is prepared to call the police if he breaches his bail, and again, stated her wish that he be granted a strict bail. She is prepared to check his bedroom and his personal belongings.

52She has never seen him use drugs and does not believe that he has a drinking problem. She did testify that when he was 18 years old, he received a diagnosis for what she referred to as a "personality disorder". He received some counseling at that time.

53She believed that Mr. Adafia was doing very well lately, and testified, "I'm baffled."

54She has spoken to him since his arrest. When asked if she had inquired about the charges, she testified that Mr. Adafia had told her, "It's not like me, Mum" and also told her, "Could've been me, I don't remember, Mum."

55His mother was very troubled that Mr. Adafia was in a great deal of pain after the car accident, seemed to be suffering from anxiety, and she was concerned that he was not receiving appropriate medical treatment at the jail.

56His mother was very clear that if he breaches the bail, she will phone the police and pull her surety. She stated under oath that her "first priority is public safety", and that she would not hesitate to have him arrested if need be.

Mr. Kristos Bidwell

57Mr. Kristos Bidwell testified, and offered himself as a surety for his brother. Mr. Bidwell is 38-years old, and he refers to the accused as his "baby brother." He testified that he is currently going through a divorce, and that he has a 10-year old child. He resides with his family at 508-4 Knightsbridge Rd., Brampton. He has no record and no outstanding charges.

58Mr. Bidwell testified that he has a clothing line with his brothers Matthew and Caesar, and that their business includes sweaters, hats, and t-shirts. He testified that they supply their clothing to different stores across the Greater Toronto Area, and that they have partial ownership of a store at Bramalea City Centre.

59Mr. Bidwell said that last year, he earned $50,000 from their clothing line. He can pledge $5000.

60He testified that he has acted as a surety in the past for Mr. Adafia, and believes that the last time he acted as his surety was about 5 years ago. He recalls that the charge had to do with retaliatory fighting. He recalled that he was also Mr. Adafia's surety when he was facing drug charges.

61He believes that his brother will listen to him. When he has been his surety in the past, his brother obeyed his curfew of 9 pm, and he also "made him get rid of some friends", whom Mr. Bidwell determined were a bad influence, with success. Again, during cross-examination, he testified without hesitation that, "when he's around me, he listens."

62Now that he knows his brother is disqualified from driving, he has no difficulty in reporting such behaviour to the police. Mr. Bidwell said that if he is named as a surety, he has "zero tolerance" for non-compliance with conditions of bail.

63As defence counsel ably noted, since both their mother and step-father will be at work during the day, if Mr. Bidwell is named as a surety, he will be "his jailer" from "6 am to 4 or 5 pm" every day. He replied, without hesitation, "I will do it."

64He testified that he will encourage his brother to "focus on the business right now," which is something they can do from home.

65It was clear during cross-examination that Mr. Bidwell did not know that Mr. Adafia had been disqualified from driving since 2016, and that Mr. Adafia had not admitted this to his brother. Mr. Bidwell had responded that he had not asked him. He knew his brother had gone to jail for 90 days for a driving offence, but said that he had not asked him any questions and described himself as "nonchalant" about it.

66He does not know why his brother might feel the need to have a gun. When asked if his brother has any conflicts, he said, "little conflicts here and there, but nothing too drastic to need a gun, no."

67Mr. Bidwell also testified that he does not know his brother to be a drug dealer.

68Mr. Bidwell agreed when asked if his brother had been living at 1185 The Queensway, unit #1201, Toronto. When asked if Mr. Adafia lived alone, he said he believes so, but his brother has a girlfriend.

69While he was aware of the black Range Rover his parents had, he was unaware of his brother borrowing it.

70When asked about his brother's friends, he expressed concern about how some of them dress, move around, and behave. However, despite indicating concern about their level of maturity, he said that his brother's friends were not committing any crimes to his knowledge.

71Prior to October 22, 2018, he thought his brother was "just a happy kid" and did not observe anything unusual.

72Mr. Bidwell testified that prior to his brother's involvement in the clothing business, he worked moving furniture.

73When Mr. Adafia was arrested, Mr. Bidwell testified, "I'm the one he called." His brother told him that he had been hurt in a car accident. He wanted to go to a hospital but told his brother that they wouldn't take him.

74Mr. Bidwell said that a police officer told him that Mr. Adafia had a firearm, drugs and money found with him at the time of his arrest. His brother confirmed this when speaking to him, but said he couldn't remember why. He did not push him on this issue, but questioned whether or not his brother had been "set up".

75When asked if his brother had told him he discharged a gun inside of an elevator, Mr. Bidwell replied, "no." He never told Mr. Bidwell that he had any drugs at his residence at 1185 The Queensway, Toronto.

Mr. Elvis Campbell

76Mr. Elvis Campbell also testified, and offered to be Mr. Adafia's surety. He is Mr. Adafia's step-father. He also resides at 508-4 Knightsbridge Rd., Brampton.

77Mr. Campbell is 60-years old, and he has known Mr. Adafia for 27 to 30 years, stating that, "I met him when he was small."

78He has been employed as a general helper in a kitchen in Mississauga for 12 years. He earns $2000 per month, after tax, and he has $6000 in savings. He is able to pledge $10,000.

79Mr. Campbell has been a surety before, for Matthew Bidwell. When he was a surety for Matthew, there were no breaches of his bail.

80Mr. Campbell confirmed that the Range Rover was his vehicle, and that he did not know Mr. Adafia did not have a valid driver's licence when he lent him this vehicle. He knew he had been convicted of a driving offence, and believed that he had served 30 days on weekends, but "thought it was over." He thought Mr. Adafia had his driver's licence back.

81When asked about his relationship with Mr. Adafia, he said that they had "family ups and downs" but he said, "I can't complain." Overall, they have a good relationship.

82Mr. Campbell is at work from 7:30 am to 4:00 pm. He plans to call home to ensure that Mr. Adafia is at home, and said that Kristos will monitor him in the daytime.

83Mr. Campbell was unfamiliar with the 1185 The Queensway address.

84Prior to his arrest, Mr. Campbell said that he saw Mr. Adafia about 2 to 3 times per week. Sometimes Mr. Adafia would borrow the Range Rover, but he needed to ask to borrow it, and sometimes Mr. Campbell declined to lend it to him.

85When shown Mr. Adafia's criminal record, he testified that he had heard about the 2008 assault conviction at the time. He was also aware of his 2014 conviction for impaired driving, and knew that he had served a sentence for it. He thought his driver's licence had been "suspended". He was unaware of the 2016 conviction for drugs.

86When asked why Mr. Adafia would need a gun, he stated that he did not know. He also did not know why he would have drugs with him, or a large amount of cash, although he did mention the sale of the clothing. He has never heard that Mr. Adafia is a drug dealer.

87He testified that since Mr. Adafia's arrest on October 22, 2018, he and his mother went to the jail to visit him. They did not ask him about the charges, but did discuss trying to bail him out of jail.

Final Submissions

Defence Counsel

88Defence counsel urged me to release Mr. Adafia, noting that he has three residential sureties, who all testified that they will enforce a strict house arrest bail, with a meaningful quantum, which is the highest rung of the bail ladder.

89Mr. Adafia has no convictions for breaching bail.

90All of his sureties are prepared to call the police if he breaches any conditions, and are prepared to assume the role of outside jailer going forward, rather than simply being his parents and his brother, as they have been up until this point in time.

91Unlike the finding of the court in R. v. Anderson (July 23), 2018 ONSC 5720, there is no indication here that Mr. Adafia is "unmanageable", as was Mr. Anderson found to be at page 20 of that judgment, nor is there any indication, unlike in Anderson, that a surety has misled the court.

92In terms of the tertiary ground, while on the face it appears to be a strong case for the Crown, there are gaps at this point, including no results on the drug testing, no ballistics yet for the firearm which was seized, and a description from the police, dated October 22, 2018, in which a male was described as being only 5'4" tall, clearly much shorter than Mr. Adafia.

93Mr. Adafia was not arrested at the scene on October 22, 2018, and defence counsel described his location as being some distance from the vehicle. Moreover, he claims that the civilian witness lost track of him, and police arrested him later on.

94Defence counsel suggested that there may be "Charter issues" with the search of the vehicle. There is no evidence that Mr. Adafia was actually trafficking drugs, this is simply an assumption made based on the quantity of untested drugs found. These substances, whatever they are, were not packaged individually, either.

95The search of the condominium on October 30, 2018 was 8 days after Mr. Adafia's arrest, and he was not released, so this unit could have been accessible to others.

96Most of the quantities of purported drugs seized were very small amounts, with the exception of the purported cocaine. Defence counsel asked me to contrast this fact to the facts in R. v. Budge, [2012] O.J. No. 2538, where the accused had a worse record, a history of failing to comply with prior releases, and was trafficking drugs at the kilo level. That accused received a house arrest bail, on evidence that was found to be "serious", but not particularly violent, at paragraph 81.

97In terms of the circumstances of the offence, being the third factor on the tertiary ground, although a firearm was found, no shots were fired, there were no injuries, and there was no evidence that the firearm was discharged.

98Defence counsel urged me to consider the lack of medical attention that Mr. Adafia required as also being a circumstance worthy of consideration.

99In terms of the fourth factor on the tertiary ground, whether or not a conviction would attract a lengthy sentence, at para. 75 of Budge, the court sought "something more", which is akin to the Supreme Court of Canada's direction in R. v. Hall, 2002 SCC 64, [2002] 3 SCR 309. Is there something more to this case that would attract the concern of the public and cause a reasonable member of the public to lose confidence in the administration of justice if he were to be released on this plan? Conversely, he urged me to consider what a reasonable member of the public would conclude about the administration of justice if an accused is detained when he should have been released.

Crown Counsel

100Crown counsel argued strenuously that driving while disqualified was a breach of a court order, and this should cause me to doubt his willingness to follow court orders.

101Crown counsel does not believe that Mr. Adafia has met his onus on the secondary grounds, and argued that the Crown has a strong case against him, and that he poses a risk to public safety.

102It is clear that Mr. Adafia was driving his stepfather's Range Rover, and because of a call from a civilian witness, the police had a valid reason to investigate, locate him and search him incident to arrest. Upon doing so, they located a firearm, drugs and a large amount of money. Not only were these items in his possession, but he admitted it to having them to his brother.

103Crown counsel asserts that the police had solid reasons for seeking and obtaining a search warrant for his residence, and upon executing it, they found more drugs, a switchblade and a scale. Again, he argues that there are not any compelling "Charter arguments" arising from these facts, either, to prevent any of this evidence from going into the trial.

104Although he is not currently charged with discharging a firearm in the condominium's elevator, police located a discharged projectile, which is being tested, and upon his arrest on October 22, 2018, he was found in possession of a loaded firearm. The video surveillance from this building puts him in this location, and he is one of only two people so implicated. At this point, Crown counsel concedes that there is not enough evidence to lay a charge of discharge of a firearm against him, but it would be incorrect to say that no discharge of a firearm took place.

105In terms of the plan of supervision offered, Crown counsel asserts that his family members don't really know him, which he attributes to Mr. Adafia's dishonesty with them.

106In terms of the tertiary ground, Crown counsel argued that all four factors are present, and that he has not met his onus.

Reply

107Defence counsel re-asserted that with three strong sureties, and 24/7 supervision, Mr. Adafia would have no ability to breach his bail, and on the strength of the plan proposed, he had met his onus.

Analysis

The Right to Bail

108The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982, c.11, which came into force on April 17, 1982 (the "Charter"), provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, as per section 11(d); and not to be denied reasonable bail without just cause, as per section 11(e).

109Moreover, in R. v. Pearson, [1982] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections 11(d) and 11(e) of the Charter are "parallel rights". More recently, the Ontario Court of Appeal held in R. v. A.A.C., 2015 ONCA 483, at paragraph 41 as follows:

All accused, including those charged with serious crimes are constitutionally entitled under s.11(e) of the Charter of Rights and Freedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule and detention is the exception. A claim for detention of an accused under s.515(10(c) must be approached in this context.

110Section 515(10) of the Criminal Code establishes that pre-trial detention is only justified when one or more of the following three conditions has been established:

(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.

111Crown counsel is relying on the secondary and tertiary grounds to seek Mr. Adafia's detention.

Does Antic and the Bail Ladder Apply to Reverse Onus Bail Hearings?

112Since this matter is a reverse onus bail hearing, Crown counsel submits that the presumption is in favour of detention. In Mr. Justice Trotter's looseleaf work, The Law of Bail in Canada, 3rd Edition, Carswell, Chapter 6.3, Mr. Justice Trotter refers to s. 515(3) of the Criminal Code as establishing the "ladder principle". However, he then states:

The ladder principle is inapplicable to situations in which a reverse onus provision in s. 515(6) is triggered. When this subsection was enacted in 1976, Parliament made no attempt to reconcile the reverse onus provisions with s. 515(3). It follows that when the onus is on the accused, he/she ought to be required to justify why the most onerous form of release should not be imposed. This may well be the reality in practice.

113Moreover, at this juncture, Crown counsel is correct that R. v. Sakhiyar (September 28), 2018 ONSC 5767 and R. v. Anderson are Superior Court judgments in which the court has held that Antic does not apply in reverse onus bail hearings. However, in R. v. Pascall (May 8), 2018 ONSC 2896, the Superior Court did apply Antic in a reverse onus bail hearing.

114Given that there is a 2 to 1 split from the Superior Court on this issue, I find that I am bound by the majority's view.

115The constitutional right not to be denied bail without just cause and the right to bail on reasonable terms continue to inform me as I consider the statutory onus on Mr. Adafia to demonstrate, on a balance of probabilities, why he should be released. His counsel has already posed a house arrest bail, so it is not necessary for me to consider any lesser form of release, in any event.

Secondary Grounds

116Crown counsel forcefully argued the public safety component of his secondary ground concerns, and highlighted the findings of the TPS at the time of Mr. Adafia's arrest, and the results of the search warrant at his condominium residence. In both instances, weapons were discovered.

117However, the public safety component under the secondary ground was found to be narrow in scope by the Supreme Court of Canada in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711, which was itself a reverse onus bail hearing. At paragraph 39, (then) Chief Justice Lamer held:

I am satisfied that the scope of the public safety component of s. 515(10)(b) is sufficiently narrow to satisfy the first requirement under s. 11(e). Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public." Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s.11(e).

118The allegations which are before me thus provide the context for this analysis.

119Of all of the allegations made against Mr. Adafia at this bail hearing, by far the most serious are the conjecture that a firearm was discharged inside of an elevator at 1185 The Queensway, Toronto on October 22, 2018, in the middle of the night. This concern arises from the "suspicious incident" at the condominium in which he lived at 1185 The Queensway, Toronto, which was thoroughly investigated by the TPS and for which he has not been charged.

120Crown counsel admitted that at this time, the TPS does not have sufficient evidence against Mr. Adafia to charge him in connection with this matter. There may never be sufficient evidence to lay this charge, since there is no video surveillance equipment in key passageways in this building, including the elevators. I am not prepared to detain an individual based on what, at this point, is conjecture.

121At the time of his arrest on October 22, 2018, Mr. Adafia's post-arrest conduct was markedly different from the post-arrest conduct in Anderson, where the accused behaved in a manner very dangerous to one and all, particularly to the police and the public.

122In contrast, Mr. Adafia did not attempt to resist arrest, although he was in possession of a loaded firearm in his coat pocket. Instead, the synopsis indicates that the arresting officer found him to be both intoxicated, and expressing a death wish. He kept asking the officer to shoot him, which is very unusual behaviour for anyone, and especially unusual for a suspected drug dealer. This evidence of a stated death wish corresponds to the evidence from his mother and older brother, who said that he seemed very confused about why he was found in possession of a firearm, drugs and a substantial sum of money.

123I find all of this evidence about his state of mind to be consistent and credible. It raises the triable issue of whether or not he had the mens rea to be committing the offences for which he has been charged. His mother testified that he received a diagnosis of borderline personality when he was 18 years old, and she thought he had recovered.

124He has a supportive family, but they have consistently testified that they are "baffled" by these allegations, and thought that he was a "happy kid" brother.

125This post-arrest conduct causes me to conclude that rather than order detention, I need to order counselling.

126I have also carefully considered his criminal record. His 2016 entries for drug possession and drug trafficking resulted in a $500 fine for each count. His older brother was his surety on these charges, and he testified that he did not breach his recognizance.

127His only violent antecedent was for assault with a weapon, and again, this incident appears to be isolated.

128His record for impaired driving, and driving while disqualified, does correspond to his current charge of impaired operation, and reflects a failure to comply with court orders, and a lapse in his willingness to tell his family members the full story. They knew he had served time for impaired driving, but were all unaware that his licence had been revoked, and he continued to borrow his parents' Range Rover. Nevertheless, they are now fully aware of these convictions, and have each testified that they will not permit him to operate a motor vehicle, while he is on their 24/7 supervision. This concern, while disturbing, can be managed with a condition of his bail, and does not raise the risk if he were to be released to the level of "substantial" in my view.

129I am satisfied that all three proposed sureties are responsible citizens who are prepared to pledge a substantial amount of money, offer him 24/7 supervision, and do their utmost to supervise Mr. Adafia.

130I was particularly impressed by his mother, Ms. Campbell, who clearly stated her willingness to put the safety of the public before the interests of her son, in the event of a breach.

131His stepfather, Mr. Campbell, is a thoughtful and candid witness, and I accept his evidence that he will call the police if Mr. Adafia steps out of line.

132Finally, I find that his older brother, Mr. Bidwell, has acted as a surety for him twice in the past, and can make his younger brother comply with bail conditions, as well as dispose of friends who are worrisome. I accept as credible Mr. Bidwell's statement that, "when he's around me, he listens."

133In conclusion, with a very tight plan of release, Mr. Adafia has met his onus on the secondary ground.

Tertiary Grounds

134In St. Cloud, 2015 SCC 27, [2015] 2 SCR 328, 2015 SC 27, at paragraph 54, the Supreme Court of Canada found that the tertiary ground was not limited to exceptional circumstances, but that the Crown must prove that the detention of the accused was justified to maintain the public's confidence in the administration of justice.

135In terms of the four enumerated factors under the tertiary ground, I will deal with each of them below, in order.

136First, in assessing the apparent strength of the prosecution's case, I am mindful of the strong case that the Crown has against Mr. Adafia at the time of his arrest, where he is found in possession of a loaded firearm, what are presumed to be drugs (yet to be tested), and a large sum of cash, wrapped up in elastic bands, in a satchel that he had on his person.

137However, while Crown counsel sees the results of the search warrant on his condominium unit as also being a strong case, at this point, we do not know how many people may have had access to this unit, and Mr. Adafia was in custody for several days before this search warrant was executed. Thus, I find the results of the search warrant executed at his home to be a triable issue, for another day.

138In terms of the "suspicious incident", I am not persuaded that it falls within the category of credible or trustworthy set out in s. 518(1)(e) of the Criminal Code, and give it no weight, particularly since the Crown has concluded, at least at this time, that it lacks sufficient evidence to lay the charge.

139In terms of the gravity of the offence, while these offences are very serious, they are not violent. If he is convicted of them, given his relative lack of related antecedents, he is facing a penitentiary sentence of 3 to 4 years.

140In analyzing the circumstances of the offence, including whether a firearm was used, Mr. Adafia was found to be in possession of a loaded firearm with a loaded magazine, at the time of his arrest. There is no evidence that he used the firearm to commit a separate offence, however. There was also a switchblade found inside of his residence at the time of the execution of the search warrant, but again, I have concerns about who may have had access to this residence while he was in custody. There is absolutely no evidence of gang involvement, nor any planning or deliberation.

141I also find the compelling evidence before me regarding the serious deterioration of his mental state to be a mitigating circumstance in his favour.

142In terms of the fourth factor, I am certain that Mr. Adafia is facing a penitentiary sentence if convicted of all of these charges.

143In R. v. Mordue (2006), 2006 CanLII 31720 (ONCA), 41 C.R. (6th) 259, at paragraph 31, Mr. Justice Juriansz held:

No one factor is determinative. The four factors should be analyzed together - not separately. Consideration of their combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain public confidence in the administration of justice.

144In assessing these four enumerated factors, I am following the direction of Mr. Justice Juriansz, and assessing them as a whole, with a particular emphasis on the facts before me. I find that they are not of sufficient force in totality, to cause me to conclude that the denial of his release is the requisite result.

145For these reasons, Mr. Adafia has met his onus on the tertiary ground.

Order

146Mr. Adafia is ordered to enter into a recognizance, on the following conditions:

(a) He has three sureties who have pledged the following sums of money to secure his release:

(i) Vanella Braithwaite Campbell, in the amount of $10,000, no deposit,

(ii) Kristos Bidwell, in the amount of $5,000, no deposit, and

(iii) Elvis Campbell, in the amount of $10,000, no deposit;

(b) Reside with all three of your sureties at 508-4 Knightsbridge Rd., Brampton, ON, and follow the rules of the home;

(c) Remain in your residence at 508-4 Knightsbridge Rd., Brampton, ON, at all times, except for medical emergencies involving you, or unless you are in the direct and continuous presence of one of your sureties;

(d) Do not attend at 1185 The Queensway, Toronto, except once, in the direct company of a police officer, to retrieve your personal belongings;

(e) Do not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person);

(f) Do not apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code;

(g) Do not operate or have care and control of a motor vehicle;

(h) Do not be in the front seat of any motor vehicle;

(i) Do not possess any cell phones or other electronic or computer devices unless you are in the direct company of one of your sureties;

(j) Do not possess or consume any unlawful drugs or substances as defined in the CDSA, unless you have a valid prescription issued in your name;

(k) Take any counselling as directed by your sureties for any mental health or addiction issues, and sign any releases so that they may monitor your treatment and progress;

(l) Do not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following: Emmanuel Danso; and

(m) Do not be within 200 metres of any place where you know Emmanuel Danso to live, work, go to school, frequent or any place you know the person to be except for required court appearances.

Dated at Toronto, this 14th day of November, 2018.

Mary A. Ross Hendriks, J.P.