Bail Decision and Reasons

Ontario Court of Justice – Brampton, Ontario

Between: Her Majesty The Queen

And: Jermain Harvey

Court Information

Before: Justice of the Peace Mangesh S. Duggal

Heard: April 18 and April 22, 2013

Judgment: April 22, 2013

Counsel:

• V. Hendry, Crown Counsel
• V. Cojokaru, Defence Counsel

Introduction

[1] Mr. Jermain Harvey was born on June 21, 1991 and is presently 21 years of age. There are eight separate criminal informations including charges under the Youth Criminal Justice Act. Judgment and reasons regarding the Y.C.J.A. charges will be addressed separately.

[2] The matter on almost all charges is a reverse onus because of outstanding charges (s. 515(6) of the Criminal Code). There is one count of Simple Possession of Marihuana less than 30 grams. That charge is and always remains a Crown onus.

[3] The reverse onus status on all charges except the marijuana charge is not in dispute. The Crown seeks detention on the secondary grounds. The defence argues Mr. Harvey has met his onus regarding the secondary grounds.

[4] The Court has heard the allegations and considered a number of issues including:

1. Jurisdiction to Consider a s.524 Application and Release on April 30, 2012 charges
2. Outstanding Charges and Releases
3. Seriousness and Nature of Outstanding Charges
4. Strength of Crown's Case
5. Existence of a Criminal or Youth Record, Education and Employment Record
6. Assessment of Proposed Plan of Release

Jurisdiction to Consider s.524 Application and Release on April 30, 2012 Charges

[5] Mr. Jermaine Harvey was charged on April 30, 2012 with a co-accused, Kevon Gayle, with Robbery (s.344(b) CC), Unlawful Confinement (s. 279(2) C.C.), Use Imitation Firearm during Robbery (s.88 C.C.) and Possession of an Imitation Firearm (s. 88 C.C.). For ease of reference, the Court will simply refer to the April 30, 2012 Information as the robbery charges.

[6] Mr. Harvey was committed to stand trial in the Superior Court of Justice following a committal order by Justice Duncan of the Ontario Court of Justice on November 8, 2012. The matter proceeded by way of discovery. An indictment has been filed in the Superior Court replicating the O.C.J. charges. As such the robbery charges have been "exhausted" in the Ontario Court of Justice.

[7] This Court had some concerns about the jurisdiction to cancel the release in relation to the robbery charges. The Court read and provided the Crown and defence a copy of R v. Smith 2013 ONSC 1341, a decision of Justice Dambrot of the Superior Court of Justice. The Smith decision addresses the jurisdictional issues indirectly at paragraphs 7 and 55.

[8] Both counsel agreed that this Court had the jurisdiction to address the s.524 application on the Robbery charges for different reasons. Mr. Hendry asked the Court to note the different statutory language in s. 524 (3) (a) and (b) of the Criminal Code.

Relevant Sections of the Criminal Code

[9] Sections 518(2), 522(1) and 524(3) of the Criminal Code read as follows:

s. 518 (1) Where before or at any time during the course of any proceedings under section 515, the accused pleads guilty and that plea is accepted, the justice may make any order provided in this Part for the release of the accused until the accused is sentenced…

522 (1) Where an accused is charged with an offence listed in section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged may release the accused before or after the accused has been ordered to stand trial…..

524(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2) is taken before a justice, the justice shall

(a) Where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or

(b) In any other case, hear the prosecutor and his witnesses, if any and the accused and his witnesses, if any.

[10] Simply put, s. 524(3) (a) of the C.C. mandates a justice to remand an accused who has been arrested to either a judge of the superior court in regards to a s. 522 (3) release. A s. 522(3) release relates to s. 469 offences.

[11] According to Section 524 (3) (b) "a justice shall in any other case (emphasis is mine) hear the prosecutor and witnesses, if any and the accused and his witnesses if any."

[12] Section 524 directs the Ontario Court to either order the person to be taken to the Superior Court if the release is from the Superior Court or to the Ontario Court to deal with a s. 524 application. As such, the bifurcated nature of the decision depends on where the original release took place. Since Mr. Harvey's original release in relation to the robbery charges took place on the Ontario Court, it is the Ontario Court that ought to hear the s.524 application.

[13] Mr. Cojokaru argued that the facts in Smith, supra, are factually different from the circumstances involving Mr. Harvey. In Smith, supra, at paragraph 55, Justice Dambrot concluded the substitution of a named surety with an unnamed surety with a different residential clause was unlawful and directed Mr. Smith to the Superior Court for a fresh bail hearing. The facts involving Mr. Harvey are substantially different. I agree with Mr. Cojokaru on that point.

[14] Separate and apart from counsel's submission, I have also looked at s. 518 (2) of the Code and determined that the Ontario Court may address the issue of bail "until the accused is sentenced". In relation to the interpretation of s. 518(2), I interpret the authority of the Ontario Court to be broad over subject matter ("the course of any proceedings") and time ("before or at any time") until an accused is sentenced.

[15] Section 522(1) addresses both the exclusive and original jurisdiction of the Superior Court in relation to s. 469 offences. Section 522(1) is both definitional (ie, the Superior Court) and exclusionary in terms of the Ontario Court with respect to 469 offences. The section excludes any justice or judge in the Ontario Court from addressing release both before and after committal for trial. The Information involving the robbery charges are not s.469 offences and thus within the authority of the Ontario Court.

Practicality and Equities

[16] Mr. Harvey has been in custody since March 17, 2013. Three potential sureties attended on Thursday, April 18, 2013; two of whom testified and were cross-examined.

[17] Had this Court ordered release on the non-robbery charges and concluded that it had no jurisdiction on the robbery charges, Mr. Harvey would have had to wait for a Superior Court to exercise jurisdiction and decide the issue of bail. There is a public interest for all concerned to have a decision regarding bail made as soon as possible.

[18] Finally, I have reviewed two cases involving indictments and release. Those two decisions are R. v. Jones et al, a decision written by Justice Doherty from the Ontario Court of Appeal, and R. v. Gaya [2008] O.J. No. 2066, a decision from Justice Hill from the Superior Court in this jurisdiction. Both Jones and Gaya deal with the preferment of a direct indictment by respectively the Attorneys General for Ontario and Canada. A direct indictment is a very unique procedural and substantive mechanism and completely different from a simple indictment following committal from the Provincial Court. See Jones, supra, at pages 5-6 and Gaya, supra at paragraphs 96-99.

Outstanding Charges and Releases

[19] In terms of ease of reference, the Court will set out the outstanding charges by offence date, type of charge and form of release:

Date	Charge	Form of Release
Dec. 8, 2011	Mischief Under re Kaitlyn Madensky	Undertaking signed Dec. 8, 2011
Jan. 11, 2012	Fail To Attend Court on Jan. 11, 2012	Own Recog. - $500 - Mthly Reporting
June 1, 2012	Fail to Attend Court June 1, 2012	Surety Recog. - $1000 – Residential term with named surety, Kareen Harvey and condition to attend Court
November 27, 2012	Fail To Attend Court	Own Recog - $200 - Attend court
November 20, 2012	Fail To Comply Recog. (reporting)	$1000 surety release – named Kareen Harvey, biweekly reporting
April 30, 2012	Robbery, Unlaw. Confinement, Use and Poss. Imitation Firearm	$50,000 – named sureties Kareen Harvey, Richard Lue Dennis Harvey and Linda Harvey – remain in residence at all times, not possess drugs, reside with sureties Dennis and Linda Harvey and follow terms
March 8, 9th and May 1, 2012	5 X Break and Enter, Possession of Ppty (s.354)	Promise to Appear
March 17, 2013	Breach of Recognizance, Simple Poss. Marih. and Obstruct Police	Current Charges

Seriousness and Nature of Outstanding Charges

[20] The narration of the allegations in relation to the outstanding charges is as follows. On December 8, 2011, Mr. Harvey was at his residence, 32 Stokes Road in Brampton. A young lady named Kaitlyn Medinski was also present; Ms. Medinski and Mr. Harvey were involved in a relationship for about 2 years. A verbal argument started over money. Mr. Harvey allegedly kicked Ms. Medinski's car door denting the passenger side and door and breaking a window. The police attended the residence at Stokes Road in Brampton, arrested Mr. Harvey, charged him with Mischief Under and released Mr. Harvey on an undertaking with conditions.

[21] The most serious charges are the robbery charges from April 30, 2012. On April 30, 2012, the complainant Pamela Dhirasekera and Lisa Smiciklas rented a room at a Best Western at 30 Clark Boulevard in Brampton. Both Ms. Smiciklas and Dhirasekera worked in the sex trade industry. Ms. Dhirasekera receives a call about services to be provided. Mr. Harvey arrives at 1:30 pm and has consensual sex with Ms. Dhirasekera. Subsequently, Mr. Harvey produces an imitation black firearm and threatens to blow off Ms. Dhirasekera's face; Ms. Dhirasekera's cellphone and about $130.00 cash is taken. The complainant is ordered to remain in the bathroom at the hotel. The complainant eventually calls a clerk who calls the police.

[22] The complainant provides a detailed description to the police along with the place where the used condoms have been discarded from the earlier sexual activity. Ms. Dhirasekera provides the police with the cellphone number which Mr. Harvey had used in the initial telephone discussions. Mr. Kevon Gayle is the registered owner of the cellphone.

[23] The phone is identified through Ping retrieval system and Mr. Gayle is observed using the phone as the police call the number. The police speak with Mr. Gayle who advises that he lent the phone to Mr. Harvey so that Mr. Harvey could do the mission, ie, a robbery. Mr. Gayle refuses to provide the police details of any type of gun and says he only uses knives not a gun.

[24] The complainant identifies Mr. Harvey on May 1, 2012 as the robber through a photo lineup. A search warrant is prepared and executed on Mr. Harvey's residence. The police find clothes that match the description the robber was wearing and a replica firearm the complainant described.

[25] Mr. Harvey provides an exculpatory statement denying knowledge of the robbery, his presence at the Best Western or that his DNA will be found on the used condoms. A DNA warrant is sought and granted for the purposes of excluding Mr. Harvey. Mr. Harvey cannot be excluded and the odds that the DNA sample from the warrant and motel is not Mr. Harvey is 1 in 37 quintillion, a very large number signifying a very, very strong Crown case in terms of DNA evidence.

[26] In terms of Part IV offences under the Code (Offences against the Administration of Law and Justice), Mr. Harvey is charged with Failing To Attend Court on January 11, 2012 in relation to the Mischief Charge. Another Fail To Attend Court relates to a non-appearance on June 1, 2012 and a final Fail To Attend Court involves a non-appearance on November 27, 2012. In total Mr. Harvey is facing three separate Fail to Attend Court charges spanning a period of less than one year (January, 2012 to November, 2012).

[27] Mr. Harvey is also facing a Breach of Bail where it is alleged that he failed to report to the police station on November 20, 2012 and thus breached his Bail. A second Breach of Bail allegations relate to the March 17, 2013 charges; specifically the breach of bail allegation is that Mr. Harvey was outside his residence in the absence of a surety on March 17, 2013.

March 17, 2013 Allegations - Breach of Bail, Simple Marihuana and Obstruct Police

[28] On March 17, 2013, at around 2:45, the accused was involved in a motor vehicle accident at McLaughlin Road north of Queen Street. At the time of the accident, Mr. Harvey was under a house arrest condition and he could only be outside of the residence if he was in the presence of a surety. Mr. Harvey was the lone driver of a Grey Mazda M3I and a suspended driver at the time of the accident.

[29] When the police arrived at the scene, Mr. Harvey provided the police with verbal identification in the name of Wayne Gordon, D.O.B., June 23, 93. At around 3:03, the police received false information from Kareem Harvey, Mr. Harvey's mother and one of the sureties that the detained party was named Wayne Gordon. Ms. Harvey denied the accusation that she verbally gave the police a false name in regards to her son.

[30] The most serious charges involve the robbery charge. The March 17, 2013 charges are also serious because they address the issue of whether Mr. Harvey is manageable under even the strictest form of release.

[31] The property offences involve four break and enters and one attempted break and enter in five separate residences over a two day period from March 8 and 9th, 2012 and are serious.

Strength of Crown's Case

[32] The Crown's case is very strong in relation to the Robbery Charges. There is a positive identification by the complainant and the DNA evidence. Real evidence consisting of the imitation firearm was seized. No issues were raised regarding any deficiencies in either the warrant process or s. 8 Charter issues. As well, the accused exculpatory statement would be significantly undermined by the DNA warrant. The statement could be tendered either through the Crown or if the accused testifies, for cross examination purposes. Either route could result in significant inconsistencies being exposed.

[33] Finally, an indictment has been filed in the Superior Court of Justice and if a preliminary hearing took place, it did not, the case passed the non-suit test in the O.C.J.

[34] The Prosecution's case in relation to the March 17, 2013 charges seems quite strong as it relies on officer observation of a post-accident scene and what inquiries the officers made as a result of the accident.

[35] The Prosecution's case is weakest on the Break and Enter charges. By way of example, the Crown does not have the same forensic pillars that exist in relation to the robbery charges.

Existence of a Criminal or Youth Record, Education and Employment Record

[36] Mr. Harvey received an Absolute Discharge from January 10, 2013 in relation of Simple Possession under the Controlled Drugs and Substances Act. As such, he does not have a criminal record – an absolute discharge is not a criminal record and the Courts places practically no weight on the finding of guilt.

[37] Mr. Harvey is not working at the moment full time nor is he going to school on a full time basis. There is anticipated employment as a forklift operator.

Assessment of Proposed Plan of Release

[38] Three sureties testified at the hearing. Ms. Kareeem Harvey is Mr. Harvey's mother and lives at 32 Stokes Road in Brampton with her son who is in custody and a 13 year old daughter. Ms. Harvey's common law partner, Mark Mitchell, also resides at the residence and is prepared to offer supervision but could not attend the hearing as he was working.

[39] Ms. Harvey works as a stock clerk at Wal-Mart and earns about $28,000 per annum; Ms. Harvey, through saving $100 a month has saved about $13,200 over the past 10 years. As well, there is a monthly insurance fund – Ms. Harvey has contributed $28.00 per month to that fund for the past 5 years. That is security with a value of about $1680.00.

[40] The proposed plan involves Mr. Harvey under house arrest with Ms. Harvey until Ms. Harvey goes to work in the afternoon-evening. M. Richard Lue, Jermain's father, would pick his son up when Ms. Harvey works at Wal-Mart in the afternoon. Ms. Harvey is prepared to pledge all her assets towards a release.

[41] Regarding the most recent March 17, 2013 allegations, Ms. Harvey was at home. March 17, 2013 was a Sunday. On that morning, Mr. Dennis Harvey, a named surety in the amount of $15,000 dropped off his grandson at the Stokes Avenue residence.

[42] On March 17, 2013, the accused was in his residence with his mother. Ms. Harvey briefly goes to the bathroom. When she returns, she finds her son is not in his bedroom. Ms. Harvey immediately called her boyfriend to advise Jermain was absent without leave.

[43] There was no time to call the police. Everything happened within 10 minutes or less. Ms. Harvey left the residence to look for her son. She saw some officers at the accident scene and spoke to them.

[44] The allegations are that Ms. Harvey initially gave the police a false name regarding her son. On the stand, Ms. Harvey rejected that suggestion and testified under oath that she advised the police of her son's correct name. In Ms. Harvey's words, she is giving her son a last chance.

[45] Ms. Harvey did not testify that her son used a rental car. On the day of the accident, that is something she apparently told Mr. Lue. Mr. Lue testified to those facts. The scenario painted by Ms. Harvey is that her son acted in an impetuous and rash way and just left the house. The motive to leave was to secure employment. Ms. Harvey blamed herself that her son left the residence as she was miserable on March 17, 2013.

[46] Notably, on cross-examination, Ms. Harvey was asked hypothetically, what she would do if she found her son out of the residence in the future. Ms. Harvey stated she would bring her son home and ask why he left the house. When asked if she would do anything else, Ms. Harvey specifically testified she would not do anything else. Ms. Harvey then backtracked and said she would call the police.

[47] I find Ms. Harvey's testimony on this fact to be fundamentally inconsistent with the role of a surety. I also find Ms. Harvey's testimony on how her son got the car to be at fundamental odds with the testimony of Mr. Lue. Ms. Harvey testified she did not know how her son got the car.

[48] Mr. Dennis Harvey is the accused's grandfather and as of March 17, 2013 was offering residential supervision. Mr. Harvey testified that he did not drop off Jermain on Sunday, March 17, 2013 as that was a church Sunday. The grandfather either dropped his son off on the preceding Friday or Saturday. Either drop off day was inconsistent with Ms. Harvey's testimony on this fact.

[49] When asked why the new plan was stronger, the grandfather acknowledged it was not a stronger plan as it is the family supervising and the new plan is the old plan.

[50] I found Mr. Harvey in terms of the day of the drop off to be credible as was his description of the new plan of supervision. All of this evidence is relevant to the details and coordination amongst the sureties regarding community supervision.

[51] Finally, Mr. Richard Lue is the accused's biological father and lives in Scarborough. The plan, according to Mr. Lue involves Jermain living with him in Scarborough. Mr. Lue works in a factory making mattresses and has done so for the last 17 years. His hours of employment are from 7:30 am to 3:30 pm. Mr. Lue would drop off Mr. Harvey in the early morning hours and then pick him up after work.

[52] Mr. Lue has $11,000 in RRSPs and a life insurance policy worth 15,000. Mr. Lue's testimony fundamentally contradicted Ms. Harvey's testimony on the issue of who Mr. Harvey would live with.

[53] The plan presented to the Court is fraught with inherent contradictions. While an issue arose as to what assets the respective parties can pledge, the Court is more concerned with the qualitative nature of supervision then the quantities pledged. However, there is real merit in Mr. Hendry's argument on this point.

[54] I accept Mr. Lue's testimony on the point about a rental car. Mr. Lue made inquiries on March 17, 2013 from Ms. Harvey regarding how his unemployed son had access to a car. Mr. Lue was told by Ms. Harvey that a girl had rented a car for Mr. Harvey.

[55] That evidence presents a tale of planning and deception different from the rash spur of the moment decision set out by Ms. Harvey. For both the internal and external inconsistencies, the plan of supervision does not address the very real secondary ground concerns in this case.

[56] Community supervision involves at least the following three elements:

1. Clear lines of communication between an accused and sureties
2. Proactive supervision and quick responses where breaches of bail are alleged
3. A willingness on the part of an accused person to follow the terms and conditions of bail

[57] With the plan proposed, I find that all three elements of community supervision are missing.

[58] The secondary grounds relate to a substantial likelihood of further offences being committed. Given the various forms of release and outstanding charges, including a house arrest $50,000 bail, I find those concerns to be real. The offences in the various Informations reflect allegations of violence, Breaches of Bail, Mischief to Property and providing False Information to the Police.

[59] In applying a principled approach to bail as set out by Justice Hill, I am obliged to consider whether I can release Mr. Harvey to a surety release notwithstanding my concerns regarding the plan. I cannot choose that option. Simply put, Mr. Harvey is not one who is going to listen to his mother, father and grandfather, all people in the community who are close to him. A residential surety is required but I have not heard a plan that addresses the secondary grounds even though I have thought of supervision to Mr. Mark Mitchell, Ms. Kareem Harvey's boyfriend.

Conclusion

[60] In all the circumstances, on the Simple Marihuana possession from the Information of March 17, 2013, the Crown has met its onus and there will be a detention on the secondary grounds. On the other charges, the accused has not met his onus and there will be a detention order on the secondary grounds.

Dated April 22, 2013 at the City of Brampton

Justice of the Peace M. Duggal