ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JOANNE WRIGHT
Before Justice J.W. Bovard
Heard on February 14, 27 & March 8, 2019
Reasons for Ruling released on March 19, 2019
Scott, Meghan counsel for the Crown
Ford, Stephen counsel for the accused Joanne Wright
1These are the court’s reasons for its ruling on Ms. Joanne Wright’s application for bail. For the reasons stated below, I order that Ms. Wright be detained on the secondary and on the tertiary grounds.
Introduction
2The police charged Ms. Wright with 23 charges: 16 counts of theft under $5000, one count of possession of property obtained by crime under $5000, one count of possession of property obtained by crime over $5000, one count of failing to comply with a recognizance of bail, and four firearms charges.
3The theft charges all involve Ms. Wright and others engaging in substantial thefts from LCBO stores in Toronto.
4After being arrested on some of the charges she was released on bail. While on release she was charged with possession of property obtained by crime over $5000, a car. In addition, she was charged with possession of a restricted firearm without a licence, possession of a restricted firearm knowingly without a licence, possession of a firearm while prohibited, and occupy a motor vehicle knowing that there was a firearm in the vehicle.
5It is a reverse onus. The Crown seeks Ms. Wright’s detention on all three grounds. The defence asks for a release on a recognizance with a surety in the amount of $5000. Ms. Wright is an Indigenous person, therefore, the Gladue factors apply.
6The synopses for all of the alleged offenses, Ms. Wright’s recognizance of bail dated December 17, 2018 and various pictures supporting the allegations are in a package provided by the Crown and marked Exhibit 1.
7Ms. Wright has a criminal record, which is Exhibit 2. I will refer to it later in my reasons.
The charges
8In chronological order, the charges and the allegations to support them are as follows:
The allegations regarding the theft under $5000 counts
Between April 15, 2018 and August 24, 2018
9Between April 15, 2018 and August 24, 2018, Ms. Wright went to various LCBO stores either alone or with other persons and stole multiple bottles of liquor. These alleged actions give rise to 10 charges on the following dates:
April 15, 2018
April 25, 2018
May 2, 2018
June 22, 2018
August 2, 2018
August 3, 2018
August 4, 2010
August 11, 2018
August 12, 2018
August 24, 2018
10The Crown introduced as evidence still pictures taken from video surveillance tapes that depict Ms. Wright in LCBO stores on the dates of several of the alleged offenses.
11In one picture on August 24, 2018, she is shown pulling a shopping buggy behind her which contains liquor bottles.
12Two other pictures dated August 3, 2018, show Ms. Wright entering an LCBO store pulling a shopping buggy. There is a man behind her. It is not clear if the man is with her. Two pictures dated August 3, and August 7, 2018, and one without a date are simply pictures of her from the shoulders up in what appear to be LCBO stores.
Between August 24, 2018 and September 24, 2018
13Ms. Wright is charged with similar thefts under $5000 from LCBO stores between August 24, 2018 and September 24, 2018. The dates of the alleged offences are:
October 11, 2018
November 2, 2018
November 20, 2018
November 25, 2018
14The Crown introduced similar pictures with regard to two of these alleged offenses. In one, dated November 20, 2018, it shows Ms. Wright with two or three liquor bottles under her left arm. She appears to be leaving the store. There is a person walking in front of her. It is not clear whether she is with that person.
15Two pictures, dated November 25, 2018, show Ms. Wright entering an LCBO store. She has two bags hanging from her left arm. There is a woman with her. They are standing close together. It is reasonably possible that they are together.
December 14, 2018
theft under $5000
possession of property obtained by crime over $5000
possession of a restricted firearm without a licence
possession of a restricted firearm knowingly without a licence
occupy a motor vehicle knowing that there is a firearm in the vehicle
possess a firearm while prohibited
16The police arrested Ms. Wright on December 14, 2018 for theft under $5000 from an LCBO store. The allegations with regard to this offense are that the police were at the LCBO store for the purpose of addressing the issue of ongoing thefts from the store. While they were speaking with store staff they saw Ms. Wright enter the store with Ms. Perrault. The two women took out bags and began to fill them with bottles of liquor. The Crown introduced still pictures taken from surveillance video of the LCBO store that show Ms. Wright and Ms. Perrault in the store on December 14, 2018.
17After selecting various bottles of liquor they left the store without paying. The police followed them and arrested them. They held Ms. Wright in custody for a bail hearing.
18The court released her on her own recognizance on December 17, 2018. Among the conditions of her release were that she report to the bail and parole reporting Centre every other Wednesday, that she not enter any LCBO store in the province of Ontario, that she not have any contact with Destiny Perrault except in the presence of counsel, and that she not possess any unopened bottles of alcohol without a receipt showing proof of purchase, or written proof that the bottle was a gift.
19The Crown alleges that also on December 14, 2018, unbeknownst to the police officers that arrested Ms. Wright and Ms. Perrault in the LCBO store, before they went to the liquor store they were in possession of a stolen vehicle which Ms. Wright parked at the rear of 501 College Street. The car was left there when the police took Ms. Wright into custody for the liquor store theft.
20On December 17, 2018, Parking Enforcement received a parking complaint with regard to the vehicle. A check of the licence plate revealed that it was stolen. The police went to the scene and searched the car. They found a shotgun in a duffel bag in the trunk.
21On December 18, 2018, a further search of the car revealed numerous bags of female clothing and cosmetics. The police also found a letter from ODSP in the name of a Joanne Wright.
22The police examined surveillance video of the parking lot and were able to identify both Ms. Wright and Ms. Perrault in connection with the car. The Crown introduced still pictures taken from the surveillance video. They depict the following:
(1) A blue car in a parking space in the parking lot;
(2) Ms. Wright and Ms. Perrault getting out of the car;
(3) Ms. Wright and Ms. Perrault going to the trunk of the car;
(4) Ms. Wright looking in the trunk with her hands in the trunk;
23By the time the police became aware of the alleged offences of possession of the stolen car and of the firearms offences, Ms. Wright was at liberty on bail, having been released on December 17, 2018. The police did not arrest her for the car and firearms offences until January 8, 2019.
January 8, 2019
24The Crown alleges that on January 8, 2018, Ms. Wright entered an LCBO store with Mr. Anthony Purchase. They stole approximately $300 worth of liquor. Ms. Wright was arrested for theft under $5000 and for breaching the condition of her recognizance that prohibited her from entering LCBO stores. The police held her for a bail hearing, which is now being held before me.
The defence release plan
25As part of its overall release plan, the defence presented a “Release Plan for Joanne Wright” from Aboriginal Legal Services. The plan states that Ms. Wright “may access the following services”. It lists CAMH and five Indigenous organizations in Toronto that provide services for:
(1) Substance abuse and mental health issues;
(2) Aboriginal spiritual counselling;
(3) Support to find housing;
(4) Aboriginal health services;
(5) Native Women’s Resource Centre (Ms. Wright has used their services before)
(6) Employment and training services;
26In addition, the defence provided an Aboriginal healing program pamphlet regarding The Aboriginal Healing Program held at Michael Garron Hospital.
27Mr. Norman MacLean testified that he would be willing to act as Ms. Wright’s surety. Mr. MacLean has known Ms. Wright for 29 years. They have had a relationship for 22 years. They are still involved with each other. In fact, they were living together during the time of all of the allegations, except between December 16, 2018 and January 8, 2019, when he was in Nova Scotia.
28Mr. MacLean rents a house. He is not working. He has been on medical employment insurance for 14 months due to a back problem. He can provide 24 hour supervision of Ms. Wright.
29Ms. Wright is not addicted to alcohol. He agreed that if she was stealing alcohol from the LCBO, she was doing it to sell it. She was not working during the time of the alleged thefts.
30Ms. Wright is addicted to cocaine. He will ensure that she goes to counselling.
31They came to Toronto 36 months ago from Alberta. While they were in Alberta, Ms. Wright worked for his company. She did not get into any trouble. They returned to Toronto after Ms. Wright had a heart attack. She wanted to see her family on Manitoulin Island.
32Ms. Wright has a counselor at Anishnawbe Health centre in Toronto. Her name is Ms. Rose Patterson. They have known each other for 15-16 years. He did not say how often she sees her. He said that there was some kind of misunderstanding between Ms. Wright and someone at Anishnawbe Health. There is no counselling set up for Ms. Wright right now. But he said that things are improving. This is at odds with the allegations.
33Mr. MacLean can pledge $5000 as surety. However, he has little money. He receives $1832 monthly from employment insurance. After he pays his expenses he has between $650 and $700 left over.
34Mr. MacLean said that he did not know what Ms. Wright was doing regarding the offences that allegedly occurred while she was living with him. He does not know Ms. Perrault or Mr. Purchase.
35Ms. Wright’s criminal record spans the years of 1992 to 2008. Her convictions include:
drinking and driving;
5 theft under $5000;
Break and enter and theft;
Assault with intent to steal;
possession of property obtained by crime under $5000;
acknowledge instrument in false name;
2 obstruct peace officer;
attempt obstruct justice;
9 fail to attend court;
fail to comply with a probation order;
2 fraud under $5000;
3 communicate for the purpose of prostitution;
assault with intent to steal;
PFP, schedule 1 substance;
3 trafficking in schedule 1 substance;
2 possession of proceeds of crime;
ABH.
36Her last conviction for failing to appear in court was on April 7, 2006. Her last conviction was on August 15, 2008.
37She does not have any firearms offences on her record.
38That was all of the evidence.
Analysis
39Ms. Wright is an Indigenous person. Therefore, the Gladue factors apply to this bail hearing.1
40In R. v. Gladue2, which was a sentencing case, the Supreme Court of Canada explained the Gladue factors in the following way:
Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration.
… it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.
41The court held that in the context of sentencing it is “necessary for the judge to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders”.3 I see no reason why the taking of judicial notice of these factors would not apply equally to a bail hearing. Therefore, I take judicial notice of them.
42In Robinson (1), a bail case, the Ontario Court of Appeal stated in paragraph 13 that:
Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.
43In my assessment of the defence plan of release, which I discuss below, I am guided by this direction.
44The defence submitted as part of its materials an article by Professor Jillian Rogin regarding how the courts apply the Gladue factors in bail hearings.4 Professor Rogin advocates that in considering the Gladue factors courts should consider all aspects of how colonialism and prejudice have affected Aboriginal persons. This includes an acknowledgement of how pervasive these debilitating attitudes are in the justice system.
45This accords with the court’s observation in Gladue in paragraph 61 that, “…there is widespread bias against aboriginal people within Canada, and "[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system".
46Pursuant to the following subsections of s. 515 (6) of the Criminal Code the onus is on Ms. Wright to show cause why she should be released from custody. The relevant parts of this section for the case before me are:
Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged
(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,
47Ms. Wright is charged with indictable offences that are alleged to have been committed after she was released on bail for indictable offences.
(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);
48A “prohibition order within the meaning of subsection 84(1)” is:
an order made under this Act or any other Act of Parliament prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things;
49Section 109 (1) of the Criminal Code states:
Where a person is convicted … of
(c) an offence relating to the contravention of subsection 5(1) or (2) …of the Controlled Drugs and Substances Act,
the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.
Duration of prohibition order — first offence
(2) An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing
(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that
(i) begins on the day on which the order is made, and
(ii) ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence; and
(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
Duration of prohibition order — subsequent offences
(3) An order made under subsection (1) shall, in any case other than a case described in subsection (2), prohibit the person from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
50Ms. Wright is charged with possession of a restricted firearm without a licence, possession of a restricted firearm knowingly without a licence, occupy a motor vehicle knowing that there is a firearm in the vehicle, and possess a firearm while prohibited.
51The court made prohibition orders under s. 109 of the Criminal Code against Ms. Wright on the following dates for the following convictions:
April 7, 2006 (possession of a schedule 1 substance for the purpose of trafficking, s. 5 (2) CDSA);
October 2, 2007 (trafficking in a schedule 1 substance, s. 5 (1), (3) (A) CDSA);
March 28, 2008 (trafficking in a schedule 1 substance, s. 5 (1) CDSA);
August 15, 2008 (trafficking in a schedule 1 substance, s. 5 (1) (3) (A) CDSA).
52Therefore, it appears that Ms. Wright is charged with a firearms offence “that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1)”. Consequently, the onus is reversed for this reason, also.
53Finally, the police charged Ms. Wright with failing to comply with her recognizance of bail, which is an offence under s. 145 (3). Pursuant to s. 515(6)(c), the onus is also reversed when an accused is charged,
(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816,
The grounds for detention
54Section 515 (10) of the Criminal Code sets out the grounds that justify the detention of accused persons:
(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.
55After considering all of the circumstances, evidence, jurisprudence and submissions of counsel, I rule as follows.
The primary ground
“where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;”
56The Crown argued that as a result of Ms. Wright’s nine convictions for failing to appear in court, I should detain her on the primary ground.
57Ms. Wright’s criminal record shows that her last conviction for failing to appear in court was in 2006. Since then, she was convicted of seven offences between November 23, 2006 and August 15, 2008. She was not convicted of failing to appear during that period.
58Moreover, the court released her once in the midst of the alleged spree of offences with which she is now charged. Although she is charged with one count of failing to comply with her recognizance, she does not face any fail to appear charges.
59I conclude that Ms. Wright has discharged the onus on her of showing that her detention is not justified under the primary ground. Any concerns in this regard could be adequately addressed by a frequent reporting condition and a condition that she keep the police and the court apprised of her address.
The secondary ground
“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”;
60In the case at bar this is a more serious concern than the primary ground.
61The allegations against Ms. Wright are that she engaged in a consistent pattern of significant thefts from various LCBO stores between April 15, 2018 and January 8, 2019. This alleged spree was interrupted on December 14, 2018 when the police arrested her for some of the offences.
62The police did not know it when they arrested her for this LCBO theft, but Ms. Wright and Ms. Perrault were just coming from a parking lot where Ms. Wright parked an allegedly stolen car that had a shotgun in the trunk. The police charged her with these offences later. I mention them now because they show that the seriousness of the offences escalated, and concomitantly, the danger to the public.
63Without knowing about the stolen car and the shotgun, the court released her on her own recognizance on December 17, 2018. The court ordered her to stay out of all LCBO stores. The court also ordered her not to possess unopened bottles of alcohol unless she had a receipt that proved that she had bought the alcohol, or written proof that it was a gift.
64However, her alleged criminal activities were not stemmed by the court’s order. The Crown alleges that on January 8, 2019, she and Mr. Anthony Purchase stole approximately $300 worth of liquor from an LCBO store.
65I considered Ms. Wright’s criminal record. Although she has many convictions, her last conviction was 11 years ago. This weakens the impact of her record for the purpose of the secondary ground. However, it does not render it insignificant.
66The defence produced a surety in the form of Mr. Norman Allan MacLean. He testified that he has known Ms. Wright for 29 years. They have been involved in a relationship for 22 years. He has been a surety for her before. She always obeyed the conditions of her bail.
67They live together in a house that he rents. They came from Alberta three years ago. They lived there between 2008 and 2016. While in Alberta, Ms. Wright did not get into any trouble. She worked for his moving company. She had a heart attack three years ago. They decided to move to Toronto in November 2016. Ms. Wright’s family is on Manitoulin Island.
68He has been on medical employment insurance for 14 months as a result of a back injury. He can provide around-the-clock surveillance of Ms. Wright. She is addicted to cocaine. He would ensure that she goes to counseling. She has a counsellor named, Ms. Rose Patterson at Anishnawbe Health Toronto. They have known each other for 15 to 16 years.
69He said that things are improving. This clearly goes against the numerous allegations that Ms. Wright is facing. It reveals either a disconnect between Mr. MacLean and Ms. Wright, or a lack of awareness on Mr. MacLean’s part about what Ms. Wright is currently allegedly doing.
70Mr. MacLean said that he went to Nova Scotia between December 16, 2018 and January 8, 2019. Ms. Wright stayed home with a roommate, Ms. Debbie Reynolds, or Reynold. He and Ms. Wright lived together at all other times since they returned to Toronto.
71He said that Ms. Wright does not have a problem with alcohol. If she is stealing alcohol, she is taking it to sell it. Ms. Wright was not working at the time of the alleged offences. He does not know Ms. Perrault or Mr. Purchase.
72The defence presented a “Release Plan for Joanne Wright”, which is in the form of a list of services for Aboriginal persons in Toronto. Two of the services, CAMH and the Aboriginal Day Withdrawal program at the Toronto East General Hospital Withdrawal Management Centre, indicate that Ms. Wright can avail herself of their services by contacting them.
73The Aboriginal Housing Support Centre offers help to find housing, but Ms. Wright does not need that since she lives with Mr. MacLean.
74In a note in the release plan Anishnawbe Health Toronto states that Ms. Wright is already involved with them. However, there are no details regarding this involvement. They say that she wishes to become more involved if she is released. But Mr. MacLean testified that Ms. Wright had a negative experience with Anishnawbe Health. Therefore, I wonder if this is a practical resource for her.
75The Native Women’s Resource Centre is available to Ms. Wright. The note in the release plan states that she has used their services before and “will like to continue using their services along with other … programs they have to offer”.
76Finally, the Miziwe Biik Aboriginal Employment and Training centre is available to her. The note in the release plan states that Ms. Wright “has shown interest in doing her upgrading for her high school diploma and will call to make an appointment to see a counselor …”
77There are many excellent organizations and resources listed in the “release plan” document. However, it is up to Ms. Wright to enlist their services. It appears that during the three years that she has lived in Toronto since coming from Alberta her efforts in this regard have been minimal.
78Therefore, to call this list of resources a “plan” of release is a misnomer. There is no evidence of recent involvement with any of these organizations, or of any concrete plans to become involved with them. Based on the evidence, there is nothing but expectancy that she will avail herself of them if she were released. Consequently, I find that this part of the release plan is more of a hope than a likely potential reality.
79Mr. MacLean’s strengths as a surety are that he knows Ms. Wright well and that they live together. However, these strengths may be more theoretical than real.
80Mr. MacLean was living with Ms. Wright during the alleged commission of most of the offences with which she is charged. He testified that he did not know what she was doing. This raises two concerning possibilities.
81Either he knew what she was allegedly doing and turned a blind eye to it, or he is so disconnected from her that he does not know what she is doing with her life. Either way, it reveals serious concerns about Mr. MacLean’s appropriateness as a surety for her.
82In addition, Mr. MacLean has a criminal record. However, I acknowledge that it is quite dated. His convictions were in 1982 for obstructing a peace officer; 1989 for break and enter with intent, and 2004 for fraud over $5000 and failing to appear.
83After considering Mr. MacLean’s evidence and all of the circumstances, I find Mr. MacLean inadequate as a surety. His lack of awareness of what Ms. Wright was allegedly doing, her arrest, and release on bail, indicate a substantial disconnect between them. He testified that he did not know what she was allegedly doing. This means that she did not tell him that the police had charged her and that the court had released her on bail for the majority of the alleged offences. This causes me to not have confidence that he has a sufficient connection to Ms. Wright to adequately supervise and monitor her.
84Concerning the services that are available to Ms. Wright that are mentioned in the release plan, there is no evidence that in spite of being aware of Anishnawbe Health and the Native Women’s Resource Centre that Ms. Wright has engaged with them recently, or that she is currently inclined to do so. With regard to the other organizations, there is nothing but a hope that she would avail herself of their services.
85Therefore, based on the evidence, all of the circumstances, the jurisprudence and counsels’ submissions, I find that Ms. Wright has not discharged the onus upon her to show why her detention is not justified under the secondary ground.
86Consequently, I order her to be detained on the secondary ground.
The tertiary ground
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.
The apparent strength of the prosecution’s case
87Ms. Wright benefits from the presumption of innocence until the Crown proves her guilt beyond a reasonable doubt. In the case at bar, the Crown has a very strong case. The video evidence is quite damning of Ms. Wright’s involvement in many of the offences with which she is charged, including the firearms offences.
The gravity of the offence
88In R. v. St. Cloud5 the court stated that “For the purposes of s. 515(10)(c), what the justice must determine is the "objective" gravity of the offence in comparison with the other offences in the Criminal Code. This is assessed on the basis of the maximum sentence — and the minimum sentence, if any — provided for in the Criminal Code for the offence”.
89The maximum sentence for the theft under $5000 charges and the possession of property obtained by crime under $5000 is two years imprisonment if the Crown proceeds by indictment. If the Crown proceeds by way of summary conviction, the penalty is governed by s. 787 of the Criminal Code, which provides for “a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both”.
90For the offence of possession of property obtained by crime over $5000, the maximum sentence is 10 years.
91Regarding the firearms charges, the following are the penalties:
(1) S. 91 (1) of the Criminal Code – possession of a restricted firearm, namely a shotgun, without being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm.
s.91 (3) states that the penalty for this offence is a term of imprisonment for a term not exceeding five years if the Crown proceeds by indictment, or an offence punishable on summary conviction.
the general penalty for summary conviction offences when none is mentioned in the charging section is governed by s. 787 of the Criminal Code: “Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both”.
(2) S. 92 (1) of the Criminal Code – possession of a restricted firearm, namely a handgun, while knowingly not being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm.
- s. 92 (3) states that the penalty for this offence for a person’s first offence under this section is imprisonment for a maximum of ten years.
(3) S. 94 (1) of the Criminal Code – without lawful excuse, occupy a motor vehicle knowing that there was in the motor vehicle a restricted firearm, namely a shotgun, which was not a replica firearm.
- s.94 (2) of the Criminal Code states that the penalty for this offence is imprisonment for a maximum of ten years if the Crown proceeds by indictment, or an offence punishable on summary conviction (governed by s. 787 as explained above).
(4) S. 117.01 (1) of the Criminal Code – possess a firearm, namely a shotgun, while prohibited from doing so by reason of an order made under Section 109 (2) (b) of the Criminal Code.
- s.117.01 (3) of the Criminal Code states that the penalty for this offence is imprisonment for a maximum of ten years if the Crown proceeds by indictment, or an offence punishable on summary conviction (governed by s. 787 as explained above).
92From this it can be seen that the maximum sentence for all of the non-firearms offences is considerable, but not as high as for the firearms offences. Based on the penalty provisions for the offences with which Ms. Wright is charged, I find that the non-firearms offences are moderately grave. The firearms offences are of more severe gravity.
The circumstances surrounding the commission of the offence, including whether a firearm was used
93The circumstances that the Crown alleges indicate a more or less organized and persistent campaign of thefts of large quantities of alcohol from various LCBO stores for re-sale. Based on the evidence, this is a reasonable inference since Ms. Wright does not have an alcohol dependency. Moreover, Mr. MacLean said that if she stole the liquor it was for re-sale. The offences allegedly occurred over an eight month span last year and this year. These types of thefts are an increasing problem in Toronto. They are becoming more and more common.
94Adding to the seriousness of the circumstances is that the quantity of the alleged thefts is large: over $18,000. In addition, hardly any of the alcohol was recovered.
95The circumstances concerning the firearms offences are very serious in and of themselves. Their seriousness is exacerbated by the context of the ongoing problem of gun violence in Toronto.
96The tertiary ground speaks of maintaining “confidence in the administration of justice having regard to all of the circumstances”. In St. Cloud, paragraph 87, the court held that:
the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10) (c).
To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
97The Crown introduced as evidence an article from the Toronto Star entitled, LCBO hires uniformed cops in crackdown on theft epidemic.6 The article is dated, February 8, 2019. It speaks of spiraling thefts at LCBO stores. The authors call it “an epidemic of broad-daylight theft from the [LCBO]”. The article states that the LCBO is spending more money for police to protect it from theft. The LCBO staff are greatly relieved and the customers are happy.
98It reports that “Coinciding with the LCBO’s efforts, several Toronto police districts have stepped up enforcement, in response to public outrage over brazen looting of dufflebag-loads of premium liquors”.
99In R. v. St. Cloud,7 although the court said that “It would … be dangerous, inappropriate and wrong for judges to base their decisions on media reports that are in no way representative of a well-informed public”, it also held that:
… this does not mean the courts must automatically disregard evidence that comes from the news media. It must be recognized that the media are part of life in society and that they reflect the opinions of certain segments of the Canadian public. In Société Radio-Canada c. Nouveau-Brunswick (Procureur général), 1991 50 (SCC), [1991] 3 S.C.R. 459 (S.C.C.), at p. 475, this Court noted: "The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being." Such opinion evidence can therefore be considered by the courts when it is admissible and relevant. This will be the case where it corresponds to the opinion of the reasonable person I described above.8
100Justice Trotter, in his book, The Law of Bail in Canada, Third edition, 2017, interpreted this statement by the court as meaning that “… media reports may well be tendered in evidence in future tertiary ground cases”.9
101In addition, section 518 (e) of the Criminal Code allows the court to “receive and base [a decision] on evidence considered credible or trustworthy … in the circumstances of each case”.
102I do not “base” my entire decision on the Toronto Star article. Rather, based on the jurisprudence and s.518 (e), I consider the article as credible, trustworthy and relevant evidence with regard to the reports of frequent thefts of liquor from LCBO stores in Toronto. In addition, I consider the opinions expressed in the article by members of the public regarding those thefts.
103The four firearm charges involve the possession of a shotgun in a stolen car driven by Ms. Wright. I note that on Information #19-75000140, count 3 specifies a “handgun”. However, this appears to by a typographical error because all of the other counts specify a shotgun. Moreover, there is no evidence regarding a handgun.
104Gun violence is a persistent and common occurrence in Toronto. Four years ago, in R. v. Nur,10 Chief Justice McLachlin observed that: “Gun-related crime poses grave danger to Canadians”.
105Based on all of the above, I consider the circumstances of the alleged offences to be quite serious and of significant concern to society.
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.
106The firearms offences with which Ms. Wright is charged are:
(1) S. 91 (1) of the Criminal Code – possession of a restricted firearm, namely a shotgun, without being the holder of a licence permitting such possession and the holder of registration certificate for the said firearm.
s.91 (3) states that the penalty for this offence is a term of imprisonment for a term not exceeding five years if the Crown proceeds by indictment, or an offence punishable on summary conviction.
the general penalty for summary conviction offences when none is mentioned in the charging section is governed by s. 787 of the Criminal Code: “Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both”.
(2) S. 92 (1) of the Criminal Code – possession of a restricted firearm, namely a handgun, while knowingly not being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm.
- s.92 (3) states that the penalty for this offence for a person’s first offence under this section is imprisonment for a maximum of ten years.
(3) S. 94 (1) of the Criminal Code – without lawful excuse, occupy a motor vehicle knowing that there was in the motor vehicle a restricted firearm, namely a shotgun, which was not a replica firearm.
- s.94 (2) of the Criminal Code states that the penalty for this offence is imprisonment for a maximum of ten years if the Crown proceeds by indictment, or an offence punishable on summary conviction (governed by s. 787 as explained above).
(4) S. 117.01 (1) of the Criminal Code – possess a firearm, namely a shotgun, while prohibited from doing so by reason of an order made under Section 109 (2) (b) of the Criminal Code.
- s.117.01 (3) of the Criminal Code states that the penalty for this offence is imprisonment for a maximum of ten years if the Crown proceeds by indictment, or an offence punishable on summary conviction (governed by s. 787 as explained above).
107Although the Crown has adduced strong evidence under the four factors of the tertiary ground. However, this does not result in an automatic detention.11 Ms. Wright has a constitutional right to reasonable bail. No matter how serious the allegations against her are, she is presumed innocent of all of the charges.
108The court’s task under the tertiary ground is summarized by St. Cloud in paragraph 87:
Section 515(10)(c) Criminal Code does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
Section 515(10)(c) Criminal Code must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
The four circumstances listed in s. 515(10)(c) Criminal Code are not exhaustive.
A court must not order detention automatically even where the four listed circumstances support such a result.
The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis.
No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
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.
109The Crown has a strong case on all of the charges. The magnitude and persistence of the alleged thefts make them serious offences. The firearms charges are very serious. Finally, should Ms. Wright be convicted of the firearms offences, she is likely to be sentenced to a substantial period of incarceration.
110In addition, as a result of the numerous thefts and the large quantity of liquor stolen in circumstances that hint strongly at an organized effort to re-sell the liquor, it is quite possible that a significant period of incarceration would be ordered should she be found guilty of these offences.
111Penny J. stated in R. v. Anderson12, that where “the enumerated circumstances applicable under the tertiary grounds strongly support the refusal of bail – that is, clearly denial of bail is not automatic but in the absence of strong countervailing considerations, this is the usual result, or the result entirely to be expected”.
112Defence counsel urged me to consider as a countervailing consideration the fact that Ms. Wright is an Indigenous person. He argues that along with all the other circumstances, this sufficiently attenuates the force of the Crown’s case on the tertiary ground to allow her to discharge her onus on this ground. However, I find that considering all of the circumstances this fact does not sufficiently countervail the strength of the Crown’s case on the tertiary ground.
113After considering all of the circumstances, the evidence, the jurisprudence cited above, the Gladue factors and counsels’ submissions, I conclude that Ms. Wright has not discharged the onus on her to show cause why her detention is not justified on the tertiary ground.
114I find that Ms. Wright’s detention on the tertiary ground is “necessary to maintain confidence in the administration of justice”. Therefore, I order that she be detained pursuant to the tertiary ground.
115I thank counsel for their assistance in adjudicating this matter.
Released: March 19, 2019
Signed: Justice J.W. Bovard
Footnotes
- R. v. Gladue 1999 679 (SCC), [1999] 1 SCR 688, para. 65; R. v. Robinson, 2009 ONCA 205 (Ont. C.A.), para. 13; R. v. Hope, 2016 ONCA 648, para. 9
- Paras. 67, 68
- Para. 83
- Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People In Canada, page 334, The Canadian Bar Review Vol. 95, Rogin, Jillian
- 2015 SCC 27, para. 60
- February 8, 2019, written by Mitch Potter and Patty Winsa
- 2015 SCC 27, para. 83
- Ibid., para. 84
- Page 3-45
- 2015 SCC 15, para. 1
- St. Cloud, paras. 66-70; 87
- 2018 ONSC 5720, para. 64