Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20200522 DOCKET: M51537 (C66676)

Before: Pardu J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Jeremy Bailey Appellant (Applicant)

Counsel: Breanna Vandebeek, for the applicant Jeremy Streeter, for the respondent

Heard: May 14, 2020 by audio and videoconference

Reasons for Decision

[1] This application for bail pending appeal was heard remotely by video and audio communication.

[2] The applicant was convicted by a jury of conspiracy to import heroin, possession of heroin for the purpose of trafficking, and conspiracy to possess heroin for the purpose of trafficking, and was sentenced to five years’ imprisonment. Before conviction and sentence, he was released on bail. While on bail, further charges were laid for trafficking cocaine and other drugs, and for possession of proceeds of crime. He was released on bail for those matters in 2018, which have yet to proceed to a preliminary inquiry.

[3] The applicant was granted bail pending appeal to this court by a judge of this court on December 9, 2019. The applicant’s father agreed to act as surety and pledged $10,000 to secure his son’s compliance with the terms of release pending appeal, which required that the applicant live with his surety and that he not possess illegal drugs.

[4] However, on April 23, 2020, the applicant was charged with new offences of possessing and trafficking in fentanyl and breaches of the conditions of his release. His father withdrew as surety. His outstanding bail pending trial was revoked.

[5] On April 29, 2020, the applicant was granted further bail pending trial after these new charges. He proposed a plan with new sureties: his brother and sister-in-law. They pledged $68,000, an amount equal to the equity in their home, to secure the applicant’s compliance with conditions of release. The applicant would be subject to house arrest and electronic ankle monitoring. The Justice of the Peace presiding over the bail hearing in the Ontario Court of Justice was satisfied that the sureties were reliable and that the GPS monitoring would ensure detection if the applicant left their home, though he was “mindful of the Ontario Court of Appeal’s decision that must be made in the days ahead.”

[6] Now the applicant again seeks release pending appeal for the matters before this court.

The offences under appeal

[7] The offences under appeal are serious. Police executed a controlled delivery of a package that was mailed from Malaysia to the address occupied by the applicant and his girlfriend but was addressed to a third party. The package contained a table that concealed 347.2 grams of heroin mixed with caffeine, which the police replaced with a control sample of heroin. The girlfriend accepted the package, saying the third party was her cousin who was residing there. When police entered the apartment, the table appeared to have been dismantled and the sample removed. The drugs were worth between $42,000 and $104,100 depending on whether it was sold by the ounce or in individual doses.

[8] The applicant left the apartment about 15 minutes after the controlled delivery. When police approached him, he fled. The applicant was convicted by a jury.

The new offences

[9] The new offences are also drug related. Police observed the applicant attend at an Oakville address believed to be associated with drug trafficking on five occasions and engage in activity consistent with trafficking drugs. Police observed the applicant coming and going from an address in Etobicoke throughout the period of surveillance, even though he was obliged to reside at his father’s address elsewhere under the terms of his release in this court. When police searched the applicant, they found 3.7 grams of fentanyl concealed within a body cavity, plus 4 cell phones and $2,610 in cash in his possession. The applicant’s girlfriend was apparently living at the Etobicoke address he frequented, even though under his conditions of release he was to have no contact with her except in the presence of counsel. A search of the Etobicoke address revealed 677 grams of another substance believed to be a drug.

[10] These very recent allegations of drug trafficking and breaches of recognizance are troubling in light of this court’s recently granted bail, the underlying drug convictions, and the outstanding 2018 drug charges that were laid while the applicant was on bail.

Positions of the parties

[11] The applicant submits that concerns about public safety can be mitigated by the strictures of the proposed plan, the high quality of the sureties and the significant amounts they are prepared to pledge, and the information provided by electronic ankle monitoring.

[12] The Crown’s position is that the grounds of appeal are weak but not frivolous and that the applicant will likely surrender into custody when required. However, the Crown takes the position that public safety and confidence in the administration of justice compel the continued detention of the applicant, citing s. 679(3)(c) of the Criminal Code, R.S.C., 1985, c. C-46.

[13] The Crown expresses concerns that the sureties may not be able to provide continuous surveillance when they are obliged to leave their home to go to work, and that the applicant may still find ways to engage in drug trafficking from within his brother’s home. The applicant bears the onus of establishing that his detention is not necessary in the public interest. On this application, he does not benefit from the presumption of innocence for the charges which are appealed to this court. He has been convicted on those matters. This is different from the bail hearing before the Justice of the Peace on the newest charges, where the applicant still benefited from the presumption of innocence.

Seriousness of the offence

[14] These offences are serious. Drug trafficking of the kind at issue here has devastating effects in the community.

Strength of the grounds of appeal

[15] I turn to a consideration of the strength of the grounds of appeal.

[16] The applicant submits that the verdict of the jury was unreasonable. There was no documentary evidence in the apartment linking him to Malaysia, the source country for the drugs. The applicant’s fingerprints were not found on the packaging or the table in which the drugs were concealed. His flight from police may have been for reasons unconnected to the drugs.

[17] A police witness gave evidence that “he had not heard of a circumstance in which a controlled delivery of drugs had been intercepted by someone before it reached the destination address, but anything is possible.” The applicant submits that this amounts to inadmissible anecdotal expert evidence, a Sekhon error: see R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272.

[18] The applicant further argues that the trial judge erred in telling the jury that they could consider his impecuniosity on the issue of whether he had a motive to traffic drugs.

[19] The Crown responds that the jury had an ample basis to return with a guilty verdict. The applicant was inside his apartment when the package was delivered to his address. While the applicant was within the apartment, the table was dismantled to reveal where heroin was hidden, and the applicant left the apartment within 15 minutes of its delivery. His flight from police, the Crown says, pointed convincingly to his guilt. It cannot be said that a jury could not reasonably convict him. The statement by the police officer regarding interception of a controlled delivery before reaching the destination address was tangential: in this case there was no such interception of the package as it was accepted and opened at the destination address. The Crown submits that the jury charge was fair and balanced in its treatment of the presence or absence of a motive to deal drugs.

[20] I keep in mind the comments from paragraph 45 of R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250:

In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal based upon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities. In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review process is essential to maintain public confidence in the administration of justice. Thus, there is a broader public interest in reviewability that transcends an individual’s interest in any given case.

[21] I have before me the draft jury instructions, submitted by the applicant. Keeping in mind the limits of assessment of the strength of the grounds of appeal at this stage of the proceedings, I would simply say that the grounds of appeal are not strong, although they are arguable.

Final balancing

[22] How then to weigh these factors to determine whether the applicant should once again be released pending appeal? As noted in Oland, at para. 47:

Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.

[23] There is no suggestion of a flight risk. There is no reason to believe the hearing of the appeal will be delayed.

[24] I would not conclude there is a substantial likelihood the applicant will commit further offences if released, given the strictures of the proposed terms. The quality of his sureties and the use of a GPS monitoring device substantially reduce the likelihood of further offences. But at the same time, given the determination and ingenuity demonstrated by the applicant in dealing in drugs, there is a lingering public safety concern. GPS monitoring has been described as a risk management tool, rather than crime prevention tool: see R. v. Jesso, 2020 ONCA 280, at paras. 24-27. His father’s recent pledge of $10,000 as surety did not prevent drug trafficking charges only months later. Even accepting the honesty of the new sureties and the amount they are willing to pledge, there are lingering concerns about the effect this will have on his behaviour.

[25] I conclude that public confidence in the administration of justice would be undermined by release of the applicant on bail pending appeal in these circumstances. The convictions are serious, and there are lingering public safety concerns. The applicant was released on bail pending appeal on December 9, 2019. Within months he was charged with possessing and trafficking fentanyl and breaching conditions of release, and further he appeared to be staying with his co-accused girlfriend in Etobicoke even though the conditions of his release required him to reside with his surety in Milton and avoid contact with her except in the presence of counsel. Such flagrant and almost immediate violations of the conditions of release, if proven, would cause a thoughtful, dispassionate, informed person respectful of society’s values to seriously question whether the applicant should again be released on bail pending appeal, in light of the other factors including the strength of the appeal, the risk of re-offence, the protection that would be afforded by the surveillance of the sureties, and the time until the appeal can be heard.

[26] On balance, the need for enforcement of the verdict outweighs the interests of reviewability.

[27] I recognize that in Oland, the court said that the public confidence component will rarely play a role, much less a central role, in the decision to grant or deny bail pending appeal. However, the alleged breaches of the conditions of release go to the heart of the need to protect public safety. These are not minor breaches of curfew, or consumption of alcohol by an alcoholic, or failures to appear in court or report as required, the latter of which are akin to administrative offences. Denial of bail pending appeal in these circumstances is not to punish the applicant for alleged violations of conditions of release, but relates to public safety and public confidence in the administration of justice. The public safety component and public confidence component are not treated as silos in the analysis; residual public safety concerns remain relevant and should be considered in the public confidence analysis: see Oland, at para. 27.

[28] Accordingly, for these reasons, the application for release pending hearing of the appeal is dismissed.

Released: May 22, 2020 “G. Pardu J.A.”