Court Information

Ontario Court of Justice Toronto Region

In the matter of: Regina v. Nathaniel Bell

REASONS FOR JUDGMENT: JUDICIAL INTERIM RELEASE HEARING

Hearing Date: February 20, 2016 Judgment: February 22, 2016

Before: Her Worship Mary A. Ross Hendriks

Counsel:

• Mr. R. Wilson, Crown Counsel
• Ms. S. Campbell, Defence Counsel

Introduction

[1] The accused is Nathaniel Bell, a 21-year old man. He is a Canadian citizen.

[2] When he was released on bail on July 29, 2014, he was required to reside with his step-father, David Hoddinott, in Toronto. His mother testified at this bail hearing that she thought that being under the direction of a male role model would assist her son.

[3] At the bail hearing before me, Ms. Van Horn and her partner, Glenville ("Glen") Cairnes, have offered to act as sureties for Mr. Bell.

[4] Crown counsel at this bail hearing is seeking his detention on the secondary and tertiary grounds. It is a reverse onus bail hearing, and so it is incumbent upon Mr. Bell to show cause why he should be released. The Crown has brought an application under section 524 of the Criminal Code, which has been conceded at the outset by defence counsel.

The Allegations

[5] Crown counsel alleges that on Saturday, July 5, 2014, Mr. Bell and his co-accused, Mr. Coplin-Duran, were in a vehicle that was stopped by the Ontario Provincial Police ("OPP") conducting a RIDE check, at Finch Avenue West, on the westbound ramp to the 400 Highway, in Toronto. Mr. Bell was a passenger in the vehicle, driven by his co-accused.

[6] Crown counsel alleges that the vehicle smelled of marijuana, and that the officers on scene observed marijuana on the arm rest inside of the vehicle. Both the driver and Mr. Bell were arrested and charged under the Controlled Drugs and Substances Act ("CDSA").

[7] A canine officer known as "Cash," searched the vehicle, and as a result, two plastic bags containing marijuana, 8 grams and 9 grams each, were found in the driver's door panel. Shortly thereafter, a loaded firearm was found. A second, loaded firearm was found in the mid-consul of the vehicle, along with a third bag of marijuana, which weighed 29 grams. The same canine officer also detected four more small bags, later tested and found to be marijuana resin, which weighed 5.2 grams. The police also found a small digital scale inside the vehicle.

[8] When Mr. Bell was searched at the police station, $1050 cash was found on his person. The police seized it as proceeds of crime.

[9] The trial at Superior Court, scheduled for late May, 2016, is proceeding only on the firearms charges that are before me at this bail hearing. The CDSA charges and the charge relating to being in possession of proceeds of crime are not going forward at the trial. However, Crown counsel asserts the right of the Crown to raise those allegations at trial, as part of a narrative to assert that Mr. Bell was in possession of both firearms at the time of his arrest.

[10] As the result of a DNA warrant, Crown counsel further alleges that the loaded revolver seized inside the vehicle has DNA on its grip that matches the DNA belonging to Mr. Bell.

The Charges Against the Accused

[11] Crown counsel is proceeding by way of indictment. A certified copy of this indictment was before me at this bail hearing, which both Crown and defence counsel reviewed and agreed was proper. In this indictment, Mr. Bell is charged that on or about July 5, 2014, he committed two counts of possession of a loaded firearm, contrary to section 95(1) of the Criminal Code; two counts of possession of a firearm knowing that its possession was unlawful, contrary to section 92(1) of the Criminal Code; and one count of possession of a firearm obtained by crime, contrary to section 96(1) of the Criminal Code.

[12] His preliminary inquiry has already taken place, and his trial on these charges is scheduled at Superior Court in late May, 2016.

His Prior Releases

[13] Mr. Bell received bail on these charges, on July 29, 2014 (Exhibit 1). One of the conditions of this release was that he remain on house arrest, unless in the immediate presence of his (then) surety, Mr. Hoddinott.

[14] On August 3, 2015, Mr. Bell left his residence in the early evening without his surety and obtained a ride in a taxi. Because of a dispute over the fare, the taxi driver reported him to the police, who reviewed the video within the cab, and charged him. On January 22, 2016, Mr. Bell pleaded guilty to breaching his bail.

[15] On August 7, 2015, after having been released, Mr. Bell was not in his residence when the police conducted a check on his recognizance. He pleaded guilty to breaching the July, 2014 bail for a second time on December 9, 2015.

His Criminal Record

[16] Mr. Bell's criminal record (that includes both typed and handwritten notations) was admitted for the purpose of this bail hearing (Exhibit 2). It contains the following entries:

• 2015-01-19: 1 conviction for assault a peace officer
• 2015-01-19: 2 convictions for obstruct a peace officer
• 2015-12-09: 1 conviction for breach of a recognizance
• 2016-01-22: 1 conviction for breach of a recognizance

[17] In terms of his convictions for assaulting and obstructing a peace officer, Mr. Bell received a suspended sentence and 18 months of probation.

[18] The two convictions for breaching his July 2014 bail are important at this hearing, for reasons that will be explored later in this judgment under my analysis of the secondary ground concerns.

[19] Defence counsel concedes that his first breach of bail was entirely his fault. However, she maintains that his second breach of bail was related to the frailness of his previous surety. Ms. Campbell further explained that this distinction was borne out in his sentencing. For his first breach of bail, he received a sentence of one day in jail, and 30 days of pre-trial custody. However, for his second admitted breach, which she attributes to the need to buy groceries and run other household chores, he received an absolute discharge. I accept her submissions on these matters as accurate, since she has been his counsel throughout these various proceedings.

The Proposed Plan of Release

Evidence of Karlene Van Horn

[20] Defence counsel called his mother, Ms. Van Horn, and her partner, Mr. Cairnes, to testify as potential sureties.

[21] Ms. Van Horn testified that she is Mr. Bell's mother. She resides in a two-bedroom apartment in Toronto, with her 20 year old daughter.

[22] Ms. Van Horn is a landed immigrant, and she has no criminal record and no outstanding charges. She is studying Early Childhood Education ("ECE") at Seneca College. She dropped out of the program recently, because she had childcare issues. This child is now 12 years old, and she lives with her father.

[23] Ms. Van Horn testified that she is currently home all day and all night long. She also said that she is an artist, and that she performs as a singer at various functions around Toronto. She said that if Mr. Bell is released, she could take him with her to her performances. She also testified that her partner, Mr. Cairnes, could assist her in watching over Mr. Bell.

[24] Ms. Van Horn testified that if he is released, she will contact Seneca College to find out if he can attend programs as a mature student, and also contact his Probation Officer, to try to find him educational programs. If he were to attend Seneca College, she said that it is a 45 minute bus ride from their apartment.

[25] Ms. Van Horn also testified that her 20-year old daughter works from home doing telemarketing, and that she could also watch over her brother, and that her daughter has agreed to assist her in this regard.

[26] Ms. Van Horn has been Mr. Bell's surety in the past. She believes that this occurred in 2011. She admitted that while she was his surety then, he breached that recognizance.

[27] Throughout her testimony, Ms. Van Horn stressed that Mr. Bell has expressed a great deal of regret lately. While he has been in custody at the Toronto South Detention Centre since August, 2015, he missed the birth of his son. He has also been attacked with a knife, and she said that he found being at the Toronto South Detention Centre to be "traumatic".

[28] She testified that she has no hesitation in calling the police if he breaches his bail.

[29] In her evidence, Ms. Van Horn also stressed that she has waited until now to present herself as a surety, and was adamant about her stance towards her son, stating, "This is it – if he blows it, I'm definitely done."

[30] Ms. Van Horn knows his friends, and those whom she said that "he considers to be his friends." She wants to be very selective and only allow him to see friends that she likes and whom she believes are responsible, as opposed to those who encourage him to commit illegal activities.

[31] If he is released, only one or two of his friends will be permitted to visit at their home.

[32] While his mother agrees that these charges are very serious, he has assured her that he is not involved, and that this is a case of him being at "the wrong place at the wrong time."

[33] She believes that his expressions of regret are genuine, and that because of their close relationship, he will listen to her if released and comply with the conditions of any bail that is granted.

[34] Her son has told her that the first breach of this bail occurred when he had an argument with his stepfather, and left the residence.

[35] In terms of her ability to pledge money to secure his release, because Ms. Van Horn is on Ontario Works, her only asset is her car, which she estimates is worth $2500. She is prepared to pledge the value of her car in order to secure his release.

[36] She testified that she would be comfortable with her son receiving another house arrest bail, hopefully with an exception to attend school, with a dated letter of permission each day, permitting him to be outside of the residence.

[37] During cross-examination, she admitted that he had "some trouble" with him when he was a teenager. She and his stepfather both had attempted to "straighten him out." She attributed this behaviour to her son being a teenager at the time.

[38] She testified that Mr. Bell has graduated high school. In the past, he had summer jobs with Tropicana, which were arranged through the Youth Resource Centre at the Jane and Finch Mall. His mother desperately wants him to return to school, and although he has never promised her that he would go back to school, she still insists that this be a stipulation of his bail.

[39] When asked what career her son would like to pursue, she testified that he wants to be a rapper. She has urged him to stay out of trouble, since she knows that it is difficult to cross the border with a record, and that performers need to be able to travel.

[40] Ms. Van Horn testified that she has been with Glen Cairnes for 9 years, and that he would monitor Mr. Bell regularly for her, and watch over him if she had to travel around Toronto as a singer.

[41] Ms. Van Horn admitted that when his stepfather bailed him out on these gun charges, she left the responsibility of supervising Mr. Bell to him entirely. She stated that her sister in Hamilton had been ill, and that since the bail was house arrest, she felt she could leave this responsibility to him entirely. During cross-examination, she added that if his stepfather was solely responsible, then he would only have a male influence.

[42] When she was confronted during cross-examination with the information that a DNA warrant implicated her son as having his DNA on the grip of one of the two firearms found, she said that although she was aware of this evidence, she nevertheless believed her son when he told her that he was not involved.

[43] When she was asked when she found out that her son was going to become a father, she admitted that she did not know of this pregnancy until after her grandson had been born. Her response to why he did not tell her sooner was evasive. She described this situation as being "young people stuff" and then added that she had "no answer for that".

[44] When shown his criminal record, she did not know of his 2015 convictions for assault and obstruct a peace officer.

[45] During cross-examination, when Crown counsel reiterated the allegations that her son was found out late at night, in a car that contained two firearms, marijuana, digital scales and that he had about $1000 in cash on his person, she said that she had only been aware of the gun charges, and agreed, that these allegations were significant.

[46] When she was asked if her son had a job at the time of his July, 2014 arrest, she replied that she didn't know.

[47] She also conceded during cross-examination that his 20-year old sister, while working from home, has never had to control her brother in the past.

Evidence of Glenville "Glen" Cairnes

[48] Mr. Cairnes testified that he has been the romantic partner of Ms. Van Horn for about 10 years, and that he has known Mr. Bell since he was about 12 years old.

[49] Mr. Cairnes is a Canadian citizen, who has no criminal record and no outstanding charges.

[50] He lives by himself in a house in Brampton. He works full-time running his own business, installing fire alarms and security alarms, and he has ten employees.

[51] Mr. Cairnes has about $470,000 in equity in his home, and about $90,000 in the bank.

[52] He testified that he has a father and son sort of relationship with Mr. Bell. When Mr. Bell was about 12 or 13 years old, he did electronic work with him.

[53] When Mr. Bell was about 15 years old, he stopped living with his mother.

[54] Mr. Cairnes said that Mr. Bell was a teenager when he started having trouble with the law, which Mr. Cairnes blames on the influence of his friends. He told him that, "you're better than that" and urged him to stay away. He believes that Mr. Bell listened to him, and stayed in his room more, alone. He described his admonishments to Mr. Bell as an "ongoing conversation."

[55] Mr. Bell moved in with his stepfather, and Mr. Cairnes and his mother both continued to speak to him regularly when he called his mother.

[56] Mr. Cairnes believes that the underlying issue is "the environment he is in, and not the kid."

[57] Mr. Cairnes said that he has never signed bail for him before this hearing. He wanted to see an improvement in his attitude. Today, he believes that Mr. Bell is eager to see his infant son, and that he has really changed. Mr. Cairnes is prepared to assist his mother in Mr. Bell's supervision. He would also like to put him in touch with work colleagues and try to engage him in some type of employment. He has not discussed these plans with Mr. Bell, however.

[58] Mr. Cairnes testified in chief that he was prepared to pledge $5000 to secure Mr. Bell's release. However, during cross-examination, he said that he could pledge $100,000, if necessary, to secure Mr. Bell's release.

[59] Mr. Cairnes describes himself as a "no-nonsense person" and said that he would not hesitate to contact the police if Mr. Bell breaches the bail conditions.

[60] Mr. Cairnes lives in Brampton, but visits Ms. Van Horn several times a week, often for 8 to 10 hours, and stays overnight frequently. They do not have any children together, but they have been together for about 10 years. While he has always encouraged Mr. Bell, he has never disciplined him, and said, "…that's not my place…he's got his mother - I have advised him as I did my other children."

[61] Nevertheless, he also testified that, "I'm hardly home. I'm always out…I'm working 24/7."

[62] He has never known Mr. Bell to be involved with weapons prior to these charges being laid. He told him for about two years to avoid getting into any trouble with the law. When shown his criminal record (Exhibit 2), Mr. Cairnes was unaware of the convictions for assaulting and obstructing a peace officer.

[63] Despite his willingness to help with supervision, he has no plans to move in with Ms. Van Horn, nor does he plan to have them move into his house in Brampton. He envisions his role as staying over frequently, and being in constant contact with him by telephone. It was clear from his testimony, both in chief and in cross-examination, that he has never lived with Mr. Bell.

Analysis

The Right to Bail

[64] The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act, 1982 (U.K.) 1982, c.11, which came into force on April 17, 1982 (the "Charter"), provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, as per section 11(d); and not to be denied reasonable bail without just cause, as per section 11(e).

[65] In R. v. Pearson, [1992] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections 11(d) and 11(e) of the Charter are "parallel rights". Similarly, the Ontario Court of Appeal held in R. v. A.A.C., 2015 ONCA 483, at paragraph 41, as follows:

All accused, including those charged with serious crimes are constitutionally entitled under s.11(e) of the Charter of Rights and Freedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule and detention is the exception. A claim for detention of an accused under s.515(10)(c) must be approached in this context.

[66] Section 515(10) of the Criminal Code establishes that pre-trial detention is only justified when one or more of the following three grounds has been established:

(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.

[67] The Criminal Code explicitly permits hearsay to be considered at a bail hearing, see: section 518.(1)(e), which directs that, "the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case."

Secondary Ground

[68] According to Mr. Justice Trotter in his book, The Law of Bail in Canada, 3rd ed., JP ed., Carswell, 2010, at pp. 3-13 to 3-26, there are several key considerations under the secondary ground:

• the criminal record of the accused
• the accused is already on bail or probation
• the nature of the offence and the strength of the evidence
• the stability of the accused person
• interference with the administration of justice

[69] I will deal with these considerations in order.

[70] Mr. Bell has a relatively minor criminal record, which is a factor in his favour. His record includes one conviction for assaulting a peace officer, and two convictions for obstructing a peace officer, in 2015. More recently, he has been found guilty of two counts of breach of recognizance, stemming from his July 2014 bail.

[71] Mr. Bell's counsel has been candid with the court about his two breaches of the July 2014 recognizance that is before me. In his first breach, he clearly defied a court order to remain under house arrest, and left the home without his previous surety when he took a taxi ride in the early evening. In his second breach of the July 2014 bail, it seems he sought household provisions when his previous surety was too frail to manage those duties. As noted by Ms. Campbell, Mr. Bell should have sought a bail variation order rather than commit the second breach of recognizance. Unlike most other accused at the bail stage, Mr. Bell has accepted full responsibility for these breaches by pleading guilty, and he has already received sentences for each of them.

[72] The nature of the offences alleged are very serious. Mr. Bell and his co-accused were in a vehicle that smelled of marijuana and which was the subject of a RIDE check. This RIDE check resulted in the OPP discovering two loaded firearms inside the vehicle, one of which possessed Mr. Bell's DNA on the grip. According to the Crown synopsis, Mr. Bell and his co-accused were visibly shaking when the police canine officer went through the vehicle, and found various bags of marijuana, a small digital scale, and two loaded firearms. Mr. Bell had $1050 in cash on his person at the time of his arrest. All in all, I find that the Crown has a reasonably strong case against Mr. Bell with respect to the firearms charges.

[73] It is clear from the evidence of both proposed sureties that Mr. Bell has been influenced by his peers and declined to take direction from his family, for several years. It is also clear from the evidence of both proposed sureties that Mr. Bell moved out of his mother's home when he was 15 years old, and moved in with his stepfather, who was the surety named on the July 2014 bail. While his mother wants him to return to school, and her partner wants him to go to work, there is nothing before me to indicate that Mr. Bell has agreed to take either step. In the last few months, Mr. Bell has become a father, and this has caused him to want to improve his circumstances for the sake of his son. However, it causes me concern that his mother was unaware of this pregnancy until after Mr. Bell's son was born.

[74] Given that Mr. Bell has accepted responsibility for breaching his recognizance twice, and that he is now expressing what they testify is a genuine desire to care for his infant son, I conclude that Mr. Bell takes responsibility for his actions after the fact, rather than anticipating the consequences of his actions. Nevertheless, in both instances, this demonstrates personal growth, and he is still a young man.

[75] I have no concerns that Mr. Bell, if released, would interfere with the administration of justice.

[76] (Then) Chief Justice Lamer wrote eloquently about the limits of detention on the secondary ground in R. v. Morales, [1992] 3 S.C.R. 711, at paragraph 39, as follows:

...Bail is not denied for all individuals who pose a risk of committing another offence or interfering with the administration of justice while on bail...Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

[77] Ms. Van Horn is not currently enrolled in any educational programs, and as such, she is at home full-time, as is her 20 year-old daughter, who works from home. I find Ms. Van Horn to be a credible surety, who will watch her son carefully. She testified that she would take him with her to any singing engagements that she accepts. I accept her evidence that she will call the police if he leaves the residence without her or her partner, Mr. Cairnes.

[78] Similarly, I was very impressed with Mr. Cairnes, and accept his evidence that he is a "no nonsense" person. He is prepared to assist Ms. Van Horn, and to pledge a substantial amount of money, to secure Mr. Bell's release. Both sureties emphasized that this bail hearing was Mr. Bell's last chance at securing their assistance.

[79] It is telling that both sureties let Mr. Bell remain in the Toronto South Detention Centre from August, 2015, until now. Given the strength of their testimony, and the amount of time that has gone by before they would offer themselves as sureties, I am prepared to infer that if he is released, they will employ what is known in the vernacular as "tough love". If he steps out of line and breaches the recognizance, I am satisfied that they will each call the police, revoke their sureties, and leave Mr. Bell to fend for himself.

[80] Given the watchful eye of his mother, around the clock, and her partner on a regular basis, and balancing it against the risk that he may pose to the public, given his relatively minor criminal record, I find that this risk has not met the threshold of "substantial likelihood", nor is his detention "necessary" for public safety, and that Mr. Bell has discharged his onus on the secondary ground.

Tertiary Ground

[81] In terms of the tertiary ground, I will analyze each of the four factors below, in order.

[82] First, the Crown has a strong case, with respect to his DNA on one of the two firearms found in the vehicle. Mr. Bell was a passenger in this vehicle, and there is no evidence before me that he either owned or rented this vehicle, or otherwise had care or control of this vehicle. As such, despite the evidence of marijuana inside of the car, and the substantial amount of money on his person, I am not prepared to infer that he was in possession of both loaded firearms, but I am prepared to infer that he was in possession of the loaded firearm that contained his DNA.

[83] In terms of the gravity of the offence, this is a serious offence, when viewed objectively. The Ontario Court of Appeal has identified the problem of firearms in the Greater Toronto Area as pressing enough to require lengthy sentences, see: R. v. Danvers, (2005), 199 C.C.C. (3d) 490; and see: R. v. Brown, 2009 ONCA 563, (2009), 251 O.A.C. 264.

[84] I refer, specifically, to the very helpful summary of the relevant jurisprudence set out in the sentencing judgment of Justice Harris in R. v. Paryniuk, 2013 ONCJ 443, at paragraphs 14 to 15, for possession of a loaded firearm, and concludes that for a first offence, most sentences range between two years less a day, and three years. Moreover, as Justice Harris noted, the combination of firearms and drugs is an aggravating factor on sentencing.

[85] In terms of the third factor to consider, the offences alleged are the possession of firearms charges themselves. Taking the Crown's case at its highest, the loaded firearms found in the vehicle were not used to commit an offence, their possession constituted the offence. The loaded firearm that contains Mr. Bell's DNA was found concealed inside the car. It is very significant to me that it was not found on his person.

[86] In R. v. Smickle, 2014 ONCA 49, at paragraph 18, the Court of Appeal held that the appropriate sentence for Mr. Smickle was two years less a day. Given that Mr. Bell was not in any way brandishing the loaded firearm in a public place, and that he does not possess a related Criminal record, I anticipate that this will be his sentence if he is convicted.

[87] The recent judgment of the Supreme Court of Canada in R. v. St.Cloud, 2015 SCC 27 requires a balancing of the four factors, and their combined effect. Even where all four factors are present, detention under the tertiary ground is not automatic, and an accused still retains his or her basic entitlement to be granted reasonable bail.

[88] In the matter before me, there are no allegations of danger to any victim, no overt evidence of violence, no known affiliations with any gangs or terrorist organizations, nothing striking in his Criminal record, and nothing as a passenger that indicates care or control over the motor vehicle that contains the two loaded firearms, but for his DNA on one of the two guns while in direct possession of a substantial amount of money.

[89] Thus, I find that an informed member of the public, who understood the right to a reasonable bail, apprised of the evidence before me, and cognizant of the strength of the plan of this very strict plan of release, would not lose confidence in the administration of justice if Mr. Bell were to be released. Accordingly, Mr. Bell has discharged his onus on the tertiary grounds.

Order

[90] Mr. Bell is hereby released, noting that the section 524 application has been granted on consent, on the following conditions:

(1) I am naming his mother, Karlene Van Horn, as a surety, in the amount of $1000, no deposit; and her partner, Glenville Cairnes, in the amount of $40,000, no deposit;

(2) Reside with his surety, Ms. Van Horn, at her residence, and follow the routine and discipline of the home;

(3) Remain in your residence 7 days a week, 24 hours a day (house arrest), unless in the direct and continuous company of either surety, or for a medical emergency involving himself or a member of his immediate family;

(4) Do not contact or communicate directly or indirectly with Eric Coplin-Duran, except through counsel to prepare a defence;

(5) Do not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person; and

(6) Do not apply for any authorization, licence or registration certificate for any weapon as defined by the Criminal Code.

Dated at Toronto, this 22nd day of February, 2016.

Mary A. Ross Hendriks, J.P.