Court File and Parties
Court File No.: 4794/20 Date: 2021/01/06
Ontario Superior Court of Justice
B E T W E E N:
Her Majesty the Queen, Respondent Donna Polgar, for the Federal Crown
- and -
Tyana Wray, Applicant Robert Christie, for T. Wray
Heard: January 5, 2021
The Honourable Justice G.B. Gambacorta
Reasons for Decision
[1] This is a review under s.520 of the Criminal Code from the detention order made by Justice of the Peace T. Lavallee of the Ontario Court of Justice on July 21, 2020.
[2] The Applicant was detained on several criminal charges relating to possession for the purpose of trafficking fentanyl, possession of proceeds of crime and possession of weapons dangerous, uttering threats, and breaches, after a bail hearing which was held on July 16, 2020, by audio conference during the COVID-19 pandemic. The Applicant brought a bail review before me heard remotely on September 17, 2020, which was dismissed for not meeting the threshold for review. On January 5, 2021, by way of a zoom hearing, the Applicant brought a second bail review before me.
[3] The Applicant cites a material change in circumstances which allows this court to intervene. The Applicant argues that a change in suretyship, is one such change. The Applicant cites the addition of electronic monitoring as another change in circumstances.
I. Issue
a. Has there been a material change in circumstances due to the proposed change in surety, increased surety commitment and the addition of an electronic monitoring condition?
II. Facts
[4] At the s.524 Criminal Code show cause hearing, the Crown indicated that Ms. Wray did not have a criminal record and, on consent, read the factual allegations into the record.
[5] The Crown indicated that on November 25, 2019, Ms. Wray was the passenger in a vehicle being driven by her cousin, which was stopped by police investigating a gun call. As police initiated the stop, a white container was thrown out the front passenger window which contained 661 pills. Both Ms. Wray and her cousin were arrested, and a search of the vehicle revealed a working digital scale and a black imitation Glock handgun under the passenger seat. There were cell phones located in the vehicle as well as a Gucci purse on the backseat, within which police located pills wrapped in a grocery bag and $214.00. The pills tested as fentanyl and Ms. Wray was charged with possession for the purpose of trafficking fentanyl, possession of a weapon for a dangerous purpose, and possession of proceeds of crime. In relation to these charges Ms. Wray was released with the consent of the Crown on December 23, 2019 to her mother as surety, on a recognizance of bail with a $5,000.00 promise to pay with terms, amongst others, that she reside with her mother and stay out of the Niagara Region.
[6] Further, the court heard that on January 19, 2020 Ms. Wray was arrested for uttering threats to cause death to an intimate partner, based on allegations arising out of an incident in Brampton, ON, where it was alleged that Ms. Wray threatened Devin Hall by texting “I have my stick and I will put two into you”. On January 20, 2020 Ms. Wray was released with the consent of the Crown, to her mother as surety, on a recognizance with a promise to pay of $3000.00, and strict terms including house arrest.
[7] Then, the court heard that on June 3, 2020, while conducting surveillance on an apartment building associated with drug activity in Welland, ON, Niagara Regional Police observed Ms. Wray entering the building with three other females and leaving 15 minutes later. Police followed the vehicle to Niagara Falls and arrested the occupants at 12:32 a.m. Search of the vehicle revealed 83.3g of fentanyl wrapped in plastic (approximate value $24,900.00), cell phones and $1305.00 in Canadian currency. Ms. Wray was charged with possession of fentanyl for the purpose of trafficking and for breaching her recognizance. She was also charged with a further count of breaching her recognizance, as she was observed by the surveillance team attending that same building in Welland, ON May 9, 2020, while bound by a condition to stay out of the Niagara Region.
[8] At her bail hearing, the Applicant was required to show cause why her detention was not justified based on the nature of the s.524 Criminal Code hearing and the nature of the charges. The Crown cited primary, secondary and tertiary ground concerns with the plan that was proposed.
[9] The plan was a release on a recognizance, to her sister Cephra Hasfal as surety, with a $5000.00 promise to pay and strict terms including house arrest. The Applicant was to reside at her mother’s home in Leamington, Ontario, under the supervision of her surety. Justice of the Peace Lavallee detained Ms. Wray on the tertiary ground set out in s.515(10)(c) of the Criminal Code for failing to meet her onus.
[10] More specifically, the Justice of the Peace in her reasons, identified that her denial of bail on the tertiary ground was not just a matter of release to a suitable surety but rather a matter of the accused’s unsuitability for release. She noted that Ms. Wray was previously released on the strictest terms and found herself back before the court for a third time, demonstrating a pattern of not following court orders while on release. Although acknowledging her innocence at the bail stage, she noted that Ms. Wray was subject to two previous releases to her mother and arrested in the Niagara Region while on conditions to reside in Leamington, Ontario on a strict house arrest term and not to return to the Niagara Region. She concluded the public would lose confidence in the administration of justice if Ms. Wray were to be released again.
[11] The Applicant does not argue any legal errors on the part of the presiding justice of the peace.
The Plan Proposed at the Bail Review
[12] The plan proposed at this bail review included naming Janelle Lyn, the Applicant’s oldest sister, as a surety for the Applicant, a $10,000.00 promise to pay, a strict house arrest term and the addition of electronic monitoring surveillance.
III. The Law
Power of the Reviewing Judge on s.520, 521 Cr. C. Bail Reviews
[13] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the court, at paras. 120-121, 139, held that sections 520, 521 Cr. C. do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The court held that it will only be appropriate for the reviewing judge to intervene if (a) the initial justice erred in law, (b) the initial justice’s decision was clearly inappropriate, “that is the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another”, (c) new evidence is tendered which shows a material and relevant change in the circumstances of the case.
Evidence Admissible at s.520, 521 Bail Reviews
[14] In St. Cloud, at paras.122-129, Justice Wagner held that in order for new evidence to be admissible at a bail review hearing it must meet, with modifications, the established criteria for the admissibility of new evidence on appeal as outlined in R. v. Palmer, [1980] 1 S.C.R. 759 at 775.
[15] Justice Wagner set out the four criteria, with the modifications relevant to bail reviews at paras-128-139 of St. Cloud as follows:
a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; in criminal cases this criterion should not be applied as strictly as in civil cases and the reviewing judge must consider whether there were legitimate grounds for not tending the new evidence at the original bail hearing. b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; in the bail review context the evidence need not be decisive or potentially decisive. It will suffice if the evidence is relevant for the purposes of s.515(10) Cr. C. c. The evidence must be credible in the sense that it is reasonably capable of belief; the new evidence must be interpreted in light of the relaxed rules of evidence at the bail stage as outlined in s.518(1)(e) which requires the evidence to be credible and trustworthy. d. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result; the new evidence must be reasonably capable of affecting the balancing exercise engaged in by the justice under s.515(10)(c) Cr.C. The new evidence must be significant.
IV. Analysis
a. Has there been a material change in circumstances due to the proposed addition of an electronic monitoring condition?
[16] The plan being proposed on the bail review includes a change in surety and an increase in the quantum of surety commitment. The addition of electronic monitoring was advanced on the last bail review before me, and for reasons previously stated, I find it does not amount to a material change in circumstances that would have affected the reasons for detention. [1]
[17] While, a new surety and an increase in the quantum of surety commitment could be capable of being a material change in circumstances, it only is so if the newly proffered suretyship could have affected the balancing exercise engaged in by the justice-at-first-instance under s.515(10)(c) of the Code.
[18] In R. v. Whyte, 2014 ONCA 268, at para. 26, Tulloch J., opined that “the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material”.
[19] The proposed new surety is the accused’s oldest sister Janelle Lyn who is 34 years old and resides in Kitchener with her children. She has four (4) young children ages 10, 5, 4, and 2 years old whom she cares for. She lives in a two (2) bedroom apartment with her children and works fulltime as a resource worker for a foster home agency. Her hours of work are 9:00 a.m. to 5:00 p.m. Monday to Friday. She is currently working from home and has three (3) of her children participating in online learning as a result of the COVID-19 pandemic. She testified to being able to closely supervise the accused should she be released to her. Before the onset of the COVID-19 pandemic three of her children were in school and the youngest was in daycare while she was at work.
[20] The previously proposed surety that was found unsuitable by the Justice of the Peace, was Cephra Hasfal, the then 25-year old sister of the accused (five years senior to the accused) with whom she lived her entire life under their parents’ roof. She described herself as an influential person on the accused and stated that they were the only two who never moved out of their parents’ home residing together their entire lives. She was home fulltime helping her mother set up a business and was available to monitor the accused closely while on house arrest. She had recently graduated school and did not have other responsibilities like a fulltime job or children. Her plan would have included monitoring the accused in the home where the family lived which had a home alarm system.
[21] Although the newly proposed surety Ms. Lyn is more senior to the accused, I do not find that she would be in a better position to supervise the accused than was her mother, or other sister Cephra Hasfal, who did not have the additional responsibilities of raising four young children 10 and under, assisting them with online learning and a fulltime job. This surety, like the one before the bail justice, lacked any real connection to the accused. She has lived away from the accused for some time and was unaware of her troubles with criminal justice until their mother called to advise her of them. Further, I did not hear any evidence of what the plan for supervision of the accused would be in the event COVID-19 restrictions are lifted or if Ms. Lyn returns to work.
[22] Given the Justice of the Peace’s reasons for detention on the tertiary ground, I am not satisfied that the proposed change in surety (under the circumstances I have set out above) and a $5,000.00 increase in the surety commitment constitutes a material change in circumstances that is relevantly material to the existing cause of detention. The cause of detention was not predicated on an unsuitable surety or surety commitment but rather a loss of public confidence in the administration of justice based on the circumstances before the court.
[23] Further, I find this new plan to be simply a re-shuffling of the deck of prospective sureties which does not amount to a material change in circumstances. See R. v. Ferguson [2002] O.J. No.1969 at para.17; R. v. T.K. 2020 ONSC 1935 at para. 50.
V. Conclusion
[24] Therefore, I do not find that the change in suretyship and increase in quantum, in the circumstances of the bail plan as proposed, represents a material change in circumstances as contemplated by Wagner J. in St. Cloud.
VI. Order
[25] The Application is dismissed.
GAMBACORTA, J. Released: January 6, 2021