Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210105 DOCKET: M52060 (C66676)

Thorburn J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Jeremy Bailey Applicant (Appellant)

Counsel: Nathan Gorham, for the applicant Christina Malezis, for the respondent

Heard: December 24, 2020 by video conference

REASONS FOR DECISION

OVERVIEW

[1] On July 13, 2016, the applicant, Jeremy Bailey was arrested and charged with importing heroin, conspiracy to import heroin, possession for the purpose of trafficking heroin and conspiracy to import for the purpose of trafficking heroin. He was released on bail the following day with his father as his surety.

[2] At trial, he was convicted of all counts, except the importing charge and was sentenced to a five year jail term on December 9, 2019.

[3] Also on December 9, 2019, the applicant brought his first application for bail pending appeal. He was released on bail by this Court on condition, inter alia, that he reside with his father/surety, not contact his co-accused, Djamila Panzo, and not possess weapons or illegal drugs.

[4] His bail pending appeal was revoked by this court on May 22, 2020 after he was arrested on new drug trafficking charges and breach of his bail conditions in April 2020.

[5] He now seeks bail pending his appeal of his conviction on the 2016 charges and submits that there has been a material change in circumstances in respect of his outstanding 2018 charges, such that he should be released on bail.

[6] For the reasons that follow, the application is denied.

BACKGROUND

[7] At his bail hearing before this court on May 14, 2020, the Crown conceded that the appeal was not frivolous and the applicant was not a flight risk. However, the Crown argued that public safety and confidence in the administration of justice required that the applicant be detained.

[8] At the time of the May 14, 2020 bail hearing before this court:

i. The applicant was charged with trafficking cocaine and other drugs and possession of proceeds of crime in August 2018 (“the August 2018 charges”) and released on bail and required to reside at his father’s address; and

ii. While on bail, on April 23, 2020 he was arrested at a gas station and charged with trafficking fentanyl, possession for the purpose of trafficking fentanyl, and two counts of failure to comply with the terms of his release (“the April 2020 charges”).

[9] The 2018 charges have now been stayed.

[10] Moreover, the applicant recently received police notes of the April 2020 arrest which suggest that the applicant was arrested and drugs located while he was in a public parking lot. The notes do not explain how drugs were retrieved from the applicant’s buttocks. The search, he says, constitutes a Charter violation.

[11] At the May 2020 bail application before this court, the original terms of bail in existence at the time he was granted bail on the April 2018 charges had been amended. The applicant’s father removed himself as a surety, and his brother and his brother’s common law spouse were the proposed sureties, they pledged the entire equity in their home ($68,000), and the proposal was that he be placed under strict house arrest and a GPS ankle monitoring bracelet.

[12] On May 22, 2020, Pardu J.A. dismissed the applicant’s request for bail on the grounds that there was a lingering public safety concern “given the determination and ingenuity demonstrated by the applicant in dealing in drugs” in April 2020, such that the applicant was denied bail and placed in detention.

ANALYSIS AND CONCLUSION

The Test for Bail Pending Appeal

[13] To obtain bail pending appeal pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, the applicant must establish that: (1) the appeal is not frivolous (s. 679(3)(a)); (2) he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) his detention is not necessary in the public interest (s. 679(3)(c)). In a s. 679 application, the applicant bears the burden of establishing each of the three itemized release considerations, on the balance of probabilities, before an interim judicial release order may be made: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[14] To satisfy the third ground, an applicant must show on a balance of probabilities, that his detention is not necessary in the public interest: see Criminal Code, s. 679(3); Oland, at paras. 19-23; and R. v. Iraheta, 2018 ONCA 229, at para. 4. The “public interest” criterion under s. 679(3)(c) has two elements: public safety and public confidence in the administration of justice: Oland, at paras. 23, 26.

[15] Public safety relates to the protection and safety of the public, which tracks the secondary ground requirements: Oland, at para. 24. To be denied bail for public safety considerations: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18. Public safety considerations alone can justify refusing bail in the public interest.

[16] Public confidence in the administration of justice is rarely a central factor in the test for bail pending appeal, but ought to be considered in circumstances such as this, when the offence is serious. Public confidence must be assessed from the perspective of an informed member of the public who understands our bail system, and the facts of the case. Public confidence involves weighing enforceability and reviewability. Enforceability concerns the need to respect the general rule of the immediate enforceability of all judgments. Reviewability concerns the need to provide for a meaningful review process that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26.

[17] These two components of the public interest factor are not to be treated as silos. Even if an applicant meets the public safety threshold, residual public safety concerns or the lack of any public safety concerns should still be considered: Oland, at para. 27.

The Position of the Parties

[18] It is agreed that the applicant has satisfied the criteria under ss. 679(3)(a) and (b), as he has established on a balance of probabilities that the appeal is “not frivolous” and that he will surrender himself into custody in accordance with the terms of the order: Oland, at para. 20.

[19] The applicant claims there are two material changes in circumstances since the order of this court refusing his bail application on the public interest criterion:

i. On July 2, 2020 the August 2018 charges were stayed; and

ii. The disclosure related to the April 2020 charges suggests that the Applicant was subjected to an illegal strip search, contrary to s. 7 of the Charter.

[20] The Crown opposes the request for bail under the public interest criterion set out at s. 679(3)(c) of the Criminal Code on the basis that the public safety concern outlined by this court in the earlier order denying bail remains a concern. The Crown also submits that the reviewability interest is outweighed by the enforceability interest and, as a result, detention is necessary to maintain public confidence in the administration of justice.

Reasons for the Prior Order Refusing Bail

[21] In the last bail order before this court, Pardu J.A. held that the appeal was “arguable” and therefore not frivolous, and the strict bail plan was such that there was no substantial likelihood that he would commit further offences.

[22] She held however at paras. 25-27, that despite the strong plan of release, there was still a lingering public safety concern:

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. On balance, the need for enforcement of the verdict outweighs the interests of reviewability.… [T]he 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.

Conclusion

[23] Public confidence in the administration of justice is considered in circumstances such as this, when the offence is serious and is assessed from the perspective of an informed member of the public who understands our bail system, and the facts of the case. It involves weighing two competing interests: enforceability and reviewability.

[24] When measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances, and respectful of society’s fundamental values, I find that public confidence in the administration of justice would not be maintained if the applicant were to be released pending appeal on these terms.

[25] While the applicant correctly notes that the August 2018 charges have now been stayed and there is some evidence that the drugs found at the time of the applicant’s arrest on the April 2020 drugs may have been taken from his person in violation of his Charter rights, these changes are not material to the reason for refusing bail by this court as articulated by Pardu J.A.

[26] At that time, as in this case, while the applicant was released on bail pending appeal, within months he was charged with possessing and trafficking fentanyl and breaching conditions of his release by staying with his co-accused girlfriend with whom he was ordered to have no contact except in the presence of counsel.

[27] The applicant’s breach of two significant conditions of his bail (associating with his co-accused and being in possession of fentanyl) constituted “flagrant” violations of his conditions in the mind of Pardu J.A. such that “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.”

[28] Even if the evidence regarding a possible Charter breach and the stay of the August 2018 charges were material changes in circumstance, the lingering concern about his breach of two important bail conditions remains.

[29] The applicant’s father’s pledge of $10,000 as surety did not prevent these alleged serious breaches of his bail conditions only months after bail was granted. Thus, notwithstanding the excellent quality of the proposed sureties and the strict bail conditions proposed, just as the prior bail judge did, I find there are lingering public safety and public confidence concerns such that the applicant should remain detained pending his appeal.

[30] The application for bail pending appeal is therefore denied.

“J.A. Thorburn J.A.”