Court File and Parties
Court File No.: Guelph: Information: 160714, 16720 Date: 2016-05-25 Ontario Court of Justice
Between: Her Majesty the Queen — And — Kristi Mead
Before: Justice of the Peace M A Cuthbertson
Heard on: 27 April 2016
Reasons for Judgment at Bail released on: 25 May 2016
Counsel:
- E. Quayle, for the Crown
- P. Valli, Duty Counsel for the accused
JUSTICE OF THE PEACE CUTHBERTSON:
1: THE BACKGROUND
[1] This matter began as a recommended release by the Crown but subsequently became a contested bail hearing. Several procedural and legal issues were raised in the course of the matter.
[2] At the time of the hearing, I denied certain motions by the Crown and ultimately released Ms Mead on a recognizance without sureties. I reserved my decisions to provide written reasons to the parties. My reasons follow.
2: THE ALLEGATIONS PRESENTED DURING THE RECOMMENDED RELEASE
[3] Ms Mead faced the following charges which were Crown Onus matters - Possession of proceeds from the commission of an offence of a value greater than $5,000 (s. 354(1)(a), Criminal Code) and possession of a Schedule II substance (marijuana) (s. 4(1), Controlled Drugs and Substances Act (CDSA)).
[4] Ms Mead also faced the following Reverse Onus matters under the CDSA – 2 counts of possession of a Schedule I substance (cocaine) for the purpose of trafficking and one count of trafficking in a Schedule I substance (cocaine).
[5] Ms Quayle stated that she was presenting a consent release for my consideration. She advised that Ms Mead had no criminal record and no other outstanding charges.
[6] The allegations indicated that a drug investigation was initiated by the police concerning activities at 10 Ajax Street, Guelph. Ms Mead was found to be a resident of unit 402. Thanks to video surveillance equipment installed by the property management, the police had video recordings of Ms Mead making what appeared to be numerous drug transactions in the hallway outside of unit 402 and at the front door of the building. Police officers used physical surveillance, as well. They observed indicia of drug transactions by Ms Mead in vehicles outside the building and elsewhere.
[7] On 30 March, the police sought and were granted a CDSA search warrant for 402-10 Ajax Street, Guelph. At about 3:50 PM but prior to the execution of the search warrant, Ms Mead left the building and drove to the Willow West Mall. Officers conducted surveillance and observed Shannon Duke get into Ms Mead's car. The police arrested both when they observed Ms Mead provide what turned out to be .66 grams of cocaine in a baggie to Ms Duke. A subsequent search of Ms Mead found an additional .33 grams of cocaine and .15 grams of marijuana in separate baggies.
[8] At or about the same time, the search warrant was executed at 402-10 Ajax Street. Police did not find anyone in the unit but video surveillance later showed that Jaren Sealey had left the apartment immediately before the police arrived. Earlier surveillance indicated to the police that Mr Sealey was dealing drugs.
[9] The police seized from the living room - 194.2 grams of cocaine, $3,510 in cash, baggies of cutting agent, 4 digital scales, 2 cell phones, packaging materials, a machete and 2 sais which are a type of martial arts knives.
[10] In one of the two bedrooms, apparently occupied by Jovan Morris, an additional 1.13 grams of cocaine and 3.92 grams of marijuana, 1 gram of cannabis resin, 4 Percocet pills, $2,500 in cash and 1085 grams (two separate amounts of 112 and 973 grams) of a cutting agent were seized.
[11] The other bedroom was apparently occupied by Ms Mead and Mr Sealey. Police found what is commonly called a debt list in that room but no drugs.
3: ISSUES BEFORE THE COURT ON THE RECOMMENDED RELEASE
[12] There were several issues raised by this recommended release. Not all were directly addressed by counsel. Below, I will detail the issues and provide case law and contextual background to provide a framework for the decisions which I made.
[13] Following the reading of the allegations, I asked the Crown what form of release was being recommended. The forms of release are set out in s. 515(2) of the Criminal Code, which states:
Release on undertaking with conditions, etc.
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.
[14] The Crown advised that she was "suggesting that it be a recognizance of bail with one surety without deposit but with conditions". This form of release is pursuant to s. 515(2)(c). I then stated to Ms Quayle: "I'm going to invite you to show cause for that form of release pursuant to s. 515(3)" (see Transcript, 27 April 2016, page 7).
[15] In response, Ms Quayle submitted only three further points in support of a recognizance with a surety. Her view was that the points justified a high level of supervision. She submitted that:
- The nature of the charges put Ms Mead in a reverse onus position.
- The type of drug is insidious in nature, as noted by the Court of Appeal.
- Ms Mead was actively involved in the drug transactions, so she was not just a user of the drugs.
[16] I asked to hear from Mr Valli regarding the form of release. He stated "My friend and I have had discussions and the suggestion of a surety recognizance was going to come to you by way of a consent" (see Transcript, 27 April 2016, page 8). I took that to mean that the parties were making a joint submission as to the form of release. Mr Valli acknowledged that the decision on the form of release was "in the court's hands".
I then made the following query - "Then let me ask you this, Mr Valli. If the form of release is higher than I would release after a contested hearing doesn't the bail immediately become unreasonable"? (see Transcript, 27 April 2016, page 8) { emphasis added }
[17] Mr Valli responded by indicating that the strength of the Crown's case against Ms Mead with respect to the drug issues may be weakened as the drugs were found in the living room but there was none in the bedroom she occupied with Mr Sealey. He further stated that he did not think a surety recognizance would be unreasonable.
[18] I commented that by virtue of the recommended release, the Crown is taking the position that Ms Mead can show cause for her release where the onus was hers and the Crown could not show cause for her detention where the onus was the Crown's. Ms Quayle later disagreed with that assessment.
[19] The following dialogue with Ms Quayle then occurred.
The Court: I appreciate that the two of you have worked hard to come to a meeting of the minds to put a recommendation before me. The important thing is, it is a recommendation. I am still obligated to follow the Criminal Code and the point I'm making is she is entitled to reasonable bail unless cause has been shown. Clearly the Crown is saying that cause can't be shown – sorry, that she can show cause for her release where the onus is hers or, in the alternative, I think there is a Crown onus charge and that the Crown can't show cause of her detention on that charge. But, my concern is, if I could release and it is a ladder of release, we all know this under s. 515 and we are supposed to start at the lowest form of release and go up, not (start in) the middle. If I release on the form higher than I would after a contested bail hearing I am concerned about the impact on her Charter rights.
Ms Quayle: Well, Your Worship, this is a consent recommendation and if the court is not agreeing to that consent then the Crown would be revoking its consent and asking that Your Worship be found functus because you have made a pre-decision in relation to the matter.
The Court: I have not made any pre-decision. I've asked that you show cause which is an obligation under s. 515(3), Madam Crown. So, If you wish a contested hearing on this matter, I'll move it to a contested hearing. I've heard evidence, I'm seized with it.
Ms Quayle: I would ask that the hearing be struck then. You are functus in this matter.
The Court: I have heard the allegations, I heard the criminal record, (of) which there is none. Is there something else you wish to present in this matter, Madam Crown?
Ms Quayle: I will get further information about the bedroom and therefore I'm asking for some time to do that.
The Court: I'll certainly grant you that.
Ms Quayle: And I'm asking that the matter be struck. { emphasis added }
Transcript, 27 April 2016, pages 8-10
[20] Mr Valli declined to take a position on the motion to strike.
[21] At this point, the matter was held down over the lunch period. Ms Quayle's withdrawal of her earlier consent effectively terminated the recommended release portion of the day's proceedings. However, I will review and consider several issues from those proceedings.
4. THE LAW AND ISSUES REGARDING THE LADDER PRINCIPLE
[22] Section 515(3) of the Criminal Code directs a justice to consider what is often called the 'ladder principle' in conjunction with s. 515(2). Section 515(3) states:
(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.
4.1 When Should the Ladder Principle Be Considered During a Recommended Release?
[23] I know of no case law which sets out when the ladder principle should be considered. However, I note the application of s. 515(3), by virtue of the use of the word 'shall', is mandatory.
[24] My personal practice is to address the ladder principle after I have heard the allegations and the recommended form of release by the Crown. The reason is simple. A determination as to what the form of release will be, often has a bearing on the conditions of the release. It seems logical then that the form of release be determined at the earliest opportunity to allow the parties and myself to tailor the rest of the conditions, if any, based on that form of release. A good example of this would be a residency requirement which may well be different depending on whether a surety is required. This approach is similar to what I do during a contested bail hearing where I have decided to release a defendant. I first determine the appropriate form of release based on the ladder principle and establish it, before proceeding further to create a judicial interim release order.
4.2 How Have the Courts Defined the Proper Application of the Ladder Principle?
[25] There is much helpful case law to guide me on the proper application of the ladder principle. This area of the law is settled, in my view. Reilly J, of the Superior Court said:
9 I have long been of the view that there is and should not be any such thing as a so called consent recognizance. It may well be that an accused person is prepared to concede the reasonableness of a condition, but in my view the plain, clear reading of s. 515 is such that the onus is on the Crown to demonstrate why a person should not be released without conditions, or, for that matter, on a promise to appear entered into before an officer in charge, or an undertaking with or without conditions. One need go no further than s. 515(3).
(3) "The justice shall not make an order under any of paragraphs (2)(b) to (e) ..."
10 Those deal with the recognizance with increasingly significant conditions.
"... unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made."
R. v. Root, [2004] O.J. No. 4347, Ontario Superior Court of Justice, Reilly J., at paras 9, 10
[26] More recently, D.G. Price J, of the Ontario Superior Court also addressed the issue and referenced the Quebec Provincial Court case of Anoussis. While that court was considering a cash bail scenario, the analysis is applicable to other forms of release as well:
This "ladder principle" of measures of escalating restrictiveness to manage circumstances of increasing risk was described by Healy CJQ who, in R. c. Anoussis, analyzed the rationale for cash bail in explaining why he had decided to release an accused without requiring a cash deposit in that case. He stated:
• The structure for interim release adopted in Part XVI has been called the "ladder" principle. At its core this means, as already noted, that release is favoured at the earliest reasonable opportunity and, having regard to the risk of flight and public protection, on the least onerous grounds. The first option to consider is release upon an undertaking without conditions (s. 515(1)). Second, if the prosecution considers that this will not secure the aims of Part XVI it may seek to show cause for other, non-monetary conditions (s. 515(2)(a)). Only in the last resort should those conditions include a requirement for cash by deposit or recognizance by the accused or a third party (s. 515(3)). These are the steps on the ladder. Even then, however, there is a progression in the types of cash conditions that may be sought and imposed under paragraphs 515(2)(b) through (d) and (e) and, again, the policy favours less onerous conditions unless cause is shown for more onerous grounds. { Emphasis added }
[27] Trotter J, also wrote in The Law of Bail in Canada on the need for restraint when imposing a form of release. He stated:
Care must be taken in the selection of the form of release and the imposition of appropriate conditions. Just as the presumption of innocence mandates that pre-trial detention should be as burden-free as possible without compromising security, conditions of release ought to be approached with restraint and should only be imposed to the extent that they are necessary to give effect to the criteria for release.
The Law of Bail in Canada, Third Edition, 2010, Gary Trotter J., at page 6-4
[28] Therefore, where the onus belongs to the Crown, I conclude the proper application of s. 515(3) is that a bail court justice must release on the least onerous form of release possible, unless the Crown has shown cause for a higher form of release.
4.3 How did the Ladder Principle Apply on the Reverse Onus Charges?
[29] This is an area of the law which has not yet been settled. There are two lines of thinking that are presented in the literature and case law. There is, however, little Ontario case law on the issue.
[30] Trotter J, discussed the issue in his book:
The ladder principle is inapplicable to situations in which a reverse onus provision in s. 515(6) is triggered. When this subsection was enacted in 1976, Parliament made no attempt to reconcile the reverse onus provisions with s. 515(3). It follows that when the onus is on the accused he/she ought to be required to justify why the most onerous form of release should not be imposed. This may well be the reality in practice.
The Law of Bail in Canada, Third Edition, 2010, Gary Trotter J., at page 6-9
[31] The case law has taken a different path, to date. In a 2003 bail review in the reverse onus matter (see para 26) of Smith, Veit J, made the following remarks:
33 With respect, it was error for the learned Provincial Court Judge to fail to consider whether a lesser restriction on Mr. Smith's liberty than a total denial of bail would ensure his attendance at his trial.
34 Parliament developed a careful bail scheme which balances the fundamental right of an accused to be presumed innocent until his trial, and the need to ensure that the accused comes to trial, does not commit any other offences or interfere with the witnesses at trial, and that the criminal justice system continues to receive public support. Part of that careful scheme is that the court must interfere as little as necessary with the accused's liberty until the trial. In coming to that conclusion, I rely on s. 515(3) of the Code which states:
o The justice shall not make an order under any of paragraphs 2(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.
R. v. Smith, 2003 ABQB 714, Alberta Court of Queen's Bench, Veit, J. at paras 33 and 34
[32] Veit J, again considered the issue in his 2007 bail review decision in Alcantara, which also was a reverse onus matter (see para 9). His ruling suggested that s. 515(3) applies even in reverse onus matters. The Court held:
The Criminal Code establishes that, where a reverse onus situation applies, as it does in this case, the task of the bail judge is to "order that the accused be detained in custody until he is dealt with according to law, unless the accused ... shows cause why his detention in custody is not justified". This is the opposite of the situation where there is no reverse onus and where it is, indeed, the obligation under s. 515(3) to find the least intrusive restrictions on liberty. While it may be true that, once satisfied that the accused can be released, the court should then revert to a s. 515(3) mode, the situation here is that the bail review judge never did become satisfied that Mr. Alcantara could be released. Therefore, it is not necessary to consider whether s. 515(3) can ever come into play in a s. 515(6) situation.
R. v. Alcantara, [2007] A.J. No. 1575, Court of Queen's Bench, Veit, J., at para 50
[33] In Ontario, Corbett J, dealt with this issue on a breach of a Superior Court bail order, thereby putting the defendant in a reverse onus position. The underlying charges were very serious including attempt murder, conspiracy to commit murder and aggravated assault. The Court held:
When a court determines that an accused is not to be detained pending trial, then the accused is to be ordered released on terms that are reasonable having regard to the circumstances of the alleged offence and the accused. Subsection 515(3) makes it clear that the least intrusive appropriate means of release are to be used. Subsection 515(4) provides a list of possible conditions that may be included in a release order pursuant to s. 515(2). Reading these provisions together, in light of Charter values, it is clear that the conditions imposed pursuant to s. 515(4) should be the least restrictive conditions that are consistent with securing public safety, attendance at court, and respect for the administration of justice, as reflected in s. 515(10). See R. v. Pearson, supra.
R. v. Thomson, [2004] O.J. No. 1876, Ontario Superior Court of Justice, Corbett, J., at para 52
[34] Justice Trotter's comment on the application of the ladder principle in reverse onus matters has considerable intellectual appeal to me. However, in the absence of any case law supporting his position, I find that the positions found in Smith, Alcantara and Thomson are more persuasive. Having said that, I note that neither side raised the issue in the matter at bar.
4.4 What Charter Implications Need to be Considered Regarding the Ladder Principle?
[35] I do not sit as a court of competent jurisdiction for Charter remedies as a bail court justice. Nonetheless, I am compelled to be aware of the following Charter sections while considering bail matters: Those sections state:
- Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
Canadian Charter of Rights and Freedoms, April 17, 1982
[36] The test for 'reasonable bail' was set out by the Supreme Court:
"Reasonable bail" refers to the terms of bail. Thus the quantum of bail and the restrictions imposed on the accused's liberty while on bail must be "reasonable".
R. v. Pearson, [1992] 3 S.C.R. 665 at para 46
[37] The issue of what constitutes reasonable bail was considered in Anoussis, by Healy, J.Q.C.. The Court considered the interplay of s. 515(3) of the Criminal Code and s. 11(e) of the Charter when Justice Healy was considering a recommended release for cash bail by the Crown. The principles he set out apply also to lower forms of release. The Court held:
The Code says that a judge "shall not" order a cash condition unless the prosecution has shown cause for it. The language is mandatory. This means that if a judge orders a cash condition without shown cause there is an error, perhaps also a jurisdictional error. The second observation is that if the judge imposes a condition of cash bail without justification this would quite likely be an order for unreasonable bail within the meaning of section 11(e) of the Charter precisely because it was granted without reason or justification. Both of these are compelling reasons for a judge not to order a cash condition without cause shown by the prosecution and, if nobody else raises the point, a judge would be quite right under the terms of the Code to raise it alone. {emphasis added}
R. c. Anoussis, [2008] Q.J. No. 9260, at para 31
4.5 Are Sureties Required Too Frequently in Bail Courts?
[38] This issue has drawn the attention of the Ontario Court of Justice, the Ontario Superior Court of Justice, the Ontario Court of Appeal as well as other parties with interests in the administration of justice as it relates to bail court practices. Much has been written on the issue of over reliance on sureties in bail matters.
4.5.1 Judicial Commentary on the Use of Sureties
[39] In 2002, Duncan J. considered the practice in Peel Region of requiring sureties to appear to give evidence in bail hearings. This practice was criticized by Hill J, in R. v. Villota (2002), 163 CCC (3d) 507. Justice Duncan in Cole discussed how releases with sureties had become virtually the standard form of release at bail hearings. From my own observations in Guelph, it is frequent practice for sureties to be required to be present for bail hearings. In his decision, Justice Duncan held:
In addition to the problems identified by Justice Hill, it is my view that the practice has the potential to infect the very decision making process on a bail hearing. First, it tends to obscure the central issue, being release or detention, or more properly, whether the Crown has shown cause. Secondly, it tends to establish surety release as the dominant and almost exclusive form of release considered at bail hearings. The default position is unconditional release on an undertaking: section 515(1). An undertaking with conditions and a recognizance without sureties must be considered and rejected before moving on to consider a recognizance with sureties: section 515(3). The Crown must move up the ladder and justify each greater level of restraint by showing cause. As Trotter points out in his book, at pp. 157-160 the primary secondary and tertiary grounds, while expressed as grounds for detention, are also the grounds that must be established to move up the ladder. Where, as in this jurisdiction, sureties are expected to be called on bail hearings, prudent defence counsel presents his sureties because he can't predict how high up the ladder the Crown will advance. In the result, the participants in the bail hearing begin to think only in terms of a release with sureties and do not address or consider less restrictive forms of release. The Crown is effectively given a free pass to the fourth and, practically speaking, top rung of the ladder. Finally, even where the bail hearing is properly focused on the surety rung of the ladder, the practice of calling proposed sureties before the decision making Justice tends to blur and meld together what should be two distinct issues - whether release on a surety bail is appropriate and whether the proffered sureties are suitable. { emphasis added }
R. v. Cole, [2002] O.J. No. 4662, Ontario Court of Justice, Duncan, J., at para 19
[40] In 2009, Rosenberg J.A., writing for the Court of Appeal expressed concern about an over reliance on sureties. The Court stated:
Three further concerns also lead to the conclusion that the diligence of a surety is a relevant consideration in forfeiture hearings. First, the right to reasonable bail is a constitutional guarantee, and as sureties have become an integral part of the bail system and an important means of ensuring that constitutional imperative (see Trotter at pp. 277, 283-84; R. v. Dodson (2000), 142 C.C.C. (3d) 134 (Ont. C.A.), at para. 43), we should avoid an approach that would unduly discourage sureties from coming forward. There may now be an over reliance on sureties. Thus, see the comments of Professor Friedland in "Criminal Justice in Canada Revisited" (2004), 48 C.L.Q. 419 at 433-34:
The present system is, however, not working well in Ontario. The pendulum has swung too far in the direction of requiring sureties rather than using release on one's own recognizance. In England, sureties are required in only a small fraction of the cases. About two thirds of those who appear for a bail hearing in Toronto today are required to find sureties and only about half of this number are actually released. The other half, it appears, could not find acceptable sureties. Less than 10% held for a bail hearing are released on their own undertaking or recognizance.
What appears to be happening is that the requirement to find sureties has taken the place of cash bail as a method of holding accused persons in custody. The majority of persons who are caught up in the criminal justice system, many of whom are not from the community where they are arrested, have difficulty finding sureties. {emphasis added}
[41] Then in 2011, Ramsay J, while considering the use of cash bail made the following remarks on the 'near universal requirement for a surety':
Unlimited discretion to order cash deposit could easily lead to a situation in which deposit is the norm. In my time at the bar I saw surety bail grow from an occasional requirement imposed in relatively narrow circumstances to the norm for almost every case. The near universal requirement for a surety, in the opinion of some learned observers, is being used to keep accused persons in custody: Friedland, Detention before Trial Revisited. The unrestricted right to order cash deposit could take a similar course. { emphasis added }
R. v. Rowan, [2001] O.J. No. 5731, Ontario Superior Court of Justice, Ramsay J, at para 16
4.5.2 Non-Judicial Commentary on the Use of Sureties
[42] I now reference commentary from three separate sources all having an interest in the operation of Ontario's bail courts. I note that these are not judicial decisions, so I do not rely on them to make my decision. Rather I present the information as potentially thoughtful commentary. The reports and authors are:
- Shifting Risk: Bail and the Use of Sureties by Nicole M Myers, 2009
- Reasonable Bail? by The John Howard Society of Ontario, 2013
- Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention by The Canadian Civil Liberties Association and Education Trust, 2014
The reports make for interesting reading. All make similar findings on the use of sureties in Ontario's bail courts. In summary, the reports stated:
a. A recognizance with a surety is one of the most onerous forms of release. Being under the supervision of a surety is a significant restriction on a defendant's liberty
b. The use of sureties has become standard in many bail courts. Because the use of sureties is so entrenched, recognizances with sureties are routinely suggested by both the Crown and defence/duty counsel.
c. There now is an over-reliance on sureties for bail release. The ladder principle as set out in the Criminal Code is widely ignored.
d. Defendants often agree to onerous forms of release rather than run the risk of a contested bail hearing where they could be detained. A contested bail hearing may take several days to organize especially if a surety is to be presented as part of a bail plan. The defendant will remain in custody until the bail hearing.
4.5.3 Commentary on the Use of Sureties from Justice System Participants
[43] The Ministry of the Attorney General, as part of its Justice on Target initiative, established a Bail Experts Table (BET) consisting of representation from the judiciary, the police, the Criminal lawyers' Association, Ontario Crown Attorneys, academia and other justice system stakeholders. As BET's members work in the bail courts of Ontario, their views are particularly worth considering. The group studied bail court issues and made 34 recommendations in its 2013 final report, to enhance those courts.
[44] In its report, The Bail Experts Table stated:
Judicial officers, Crown Attorneys, police, defence counsel and duty counsel must be diligent to ensure that conditions of bail applied to accused persons Judicial Interim Release Orders are reasonable, necessary, and directly related to:
• The circumstances of the alleged offence; • The circumstances of the accused person; • The primary, secondary and tertiary grounds; and • Mandated sections of the Criminal Code.
The following provisions of the Criminal Code are often referred as to the "ladder principle": { Sections 515(2) - (3) were stated here – they appear above, so for brevity I have not reproduced them again}
Recommendation #28: Key justice participant groups should collaborate to develop and provide ongoing education regarding:
• The application of the ladder principle; • Options for forms of release; and • Appropriate conditions of release that are in keeping with the circumstances of the offence and offender, and the primary, secondary and tertiary grounds, as well as in keeping with the provision in s. 515(3).
Such education should be delivered to police, Crown Attorneys, judicial officers, duty counsel, defence counsel and other key justice participants as appropriate.
Sureties
It is common practice in Ontario to require an accused person who is being released on bail to provide a surety. Further, it has become a common practice to conduct an in-court examination of the proposed surety to determine suitability. In some cases, such examination will be necessary and appropriate; however there may be other methods for all parties to determine surety suitability.
Recommendation #29: This committee encourages justice participant groups to give careful consideration to the use of sureties and appropriate conditions, ensuring that they are used only as necessary. { emphasis added}
Bail Experts Table Recommendations, Justice on Target, Ministry of the Attorney General of Ontario, August 2013, pp 21-22
[45] The Cole, Horvath and Rowan, supra decisions clearly set out judicial concerns concerning a possible over reliance on sureties in Ontario's bail courts. The additional four reports, and especially the Bail Experts Table report and recommendations, provide depth and statistical support to those concerns.
[46] Despite all of the expressed concerns, I note that Ms Mead was arrested on 30 March 2016 and held in custody until she appeared before me on 27 April 2016. Presumably, she was attempting to find a proposed surety to present as part of her bail plan, during her time in custody.
5. THE LAW REGARDING JOINT SUBMISSIONS
[47] This is an area of settled law on bail matters. Considerable deference must be accorded to a joint submission. A bail court justice is obligated to accept a joint submission on a recommended release unless:
- The terms are unlawful, or
- The terms would bring the administration of justice into disrepute.
[48] A recognizance with a surety is a lawful form of release under s. 515(2)(c). Therefore, if I was to reject a joint submission of counsel, I would need to find that the terms or in this case, the form of release, would bring the administration of justice into disrepute.
[49] In R. v. Tiscos, [2006] O.J. No. 4041, the Ontario Court of Appeal stated that an analysis or explanation is required, as to why a joint submission would be contrary to the public interest or bring the administration of justice into disrepute.
6. THE CROWN'S MOTIONS
[50] Upon reconvening, Ms Quayle renewed her motion to strike the matter and put it before another justice of the peace. In tandem, she made a motion for me to recuse myself for a reasonable apprehension of bias.
[51] She submitted:
- I had rejected a joint submission thereby creating a delay in the process. As well, I denied the Crown an opportunity to make submissions. She relied on Superior Court Justice Hill's decision in Villota, supra.
- I pre-determined, without hearing the entire matter, including all of the evidence and in particular the evidence and cross examination of the proposed surety, that I would release Ms Mead on a lesser form of release than a recognizance with a surety.
- I did not provide the appropriate deference to the joint submission of counsel.
[52] Ms Quayle, in summary, stated:
As indicated to Your Worship it started as a recommended release but when Your Worship made the comment, and the comment was that you would release Ms. Mead on a form of release lesser than what was being recommended after a contested hearing, and the Crown indicated at that point then the Crown was revoking their joint recommendation.
Transcript, 27 April 2016, page 14
[53] Mr Valli declined to take a position on the motions.
6.1 The Law on Bias
[54] An allegation of bias or a reasonable apprehension of bias is a serious accusation. The threshold is a high one and the onus rests with Ms Quayle to prove the bias. The Supreme Court set out the test. It held:
[T]he apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information… [The] test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude…"
[55] A strong presumption of judicial impartiality exists, as restated by the Court of Appeal:
[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 SCR. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60 is long established:
[W]hat would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude [?] Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly [?]
[32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76. { emphasis added }
Martin v. Sansome, 2014 ONCA 14, Ontario Court of Appeal, at paras 31-32
[56] There is a presumption of not only judicial impartiality but also judicial integrity as held, in 2015, by the B.C. Court of Appeal. The Court stated:
As discussed by Chief Justice McLachlin in Cojocaru v. British Columbia Women's Hospital and Heath Centre, 2013 SCC 30 at paras. 14-22, [2013] 2 S.C.R. 357, there is a presumption of judicial impartiality and integrity that is not easily displaced. See also: R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 33.
6.2 Analysis
[57] I begin with Ms Quayle's position that I pre-determined the matter and decided to release the defendant on a lesser form of release without hearing the entire matter. This is fundamentally incorrect. Rather, I invited Ms Quayle to 'show cause' under s. 515(3) for the form of release she was seeking. That was an open invitation for her to present any and all evidence or information or to make any requests, she thought appropriate. She could have called viva voce evidence. She could have provided additional allegations or relevant contextual background. She could have asked me to not decide the issue of the form of release until I had heard from the proposed surety and received final submissions.
[58] I placed no restrictions on her ability to 'show cause'. The floor was hers. And yet, she submitted only that Ms Mead was in a reverse onus position (which applied only on some of the drug charges), drugs are insidious and Ms Mead was not just a user but was trafficking in drugs. Other than drugs being insidious, I had already heard the other points in the allegations.
[59] In my view, it is disingenuous at best, having been given a full and open opportunity to 'show cause', for Ms Quayle to then claim that I denied her the opportunity to do so.
[60] As well, her position that I had already decided the issue and did not provide appropriate deference to a joint submission from counsel does not withstand scrutiny. A plain reading of the text of the transcript (noted above) from pages 8 – 10 shows that I used the word 'if' when I was discussing my concerns over what was an appropriate form of release. I used the phrases - 'If I could release…' and 'If I release…'. Webster's dictionary defines 'if' as 'in case' or 'in the event that'. My use of the 'if' phrases demonstrate that I had taken no definitive position. The statements were hypothetical in nature. I also noted the work counsel put into their joint position which was a clear expression of the considerable deference I was giving to that joint submission.
[61] I expressed my concern over Ms Mead's Charter right to reasonable bail and how the appropriate form of release may impact on her right. However, at no time did I state that I had decided what an appropriate form of release would be rather I was still very much seeking input from counsel with my questions. When Ms Quayle rose and withdrew her consent for a recommended release without any ruling whatsoever from me, she foreclosed the opportunity for me to decide the issue.
[62] Ms Quayle also submitted that effectively by applying s. 515(3), I had delayed the process. Again, I disagree with that position. As noted above in the sections on the ladder principle and Charter implications, I had an obligation in law to consider what would be an appropriate form of release but also within the context of a joint submission. I fail to see how the application of my legal obligations can be considered to be a delay of the process. Had I not considered and brought to the attention of counsel all of those factors prior to making any decision, in my view, I would not have been properly performing my judicial duty.
[63] In my opinion, a full bail hearing in such cases is neither desirable nor appropriate. First, for the Crown to insist on a bail hearing where a justice has a concern over the form of release is contrary to the Crown's duty. In Brooks, Hill J, stated:
Crown counsel are expected to exercise discretion to consent to bail in appropriate cases and to oppose release where justified. That discretion must be informed, fairly exercised, and respectful of prevailing jurisprudential authorities. Opposing bail in every case, or without exception where a particular crime is charged, or because of a victim's wishes without regard to individual liberty concerns of the arrestee, derogates from the prosecutor's role as a minister of justice and as a guardian of the civil rights of all persons.
Because the police and the prosecution have significant discretion to exercise respecting the release of accused persons, the administration of criminal justice logically expects that these parties will not simply dump all bail decisions into contested hearings before the Courts. Not only does this serve to choke the operation of the Bail Courts but, as said, the statutory and constitutional regime demands otherwise. { emphasis added }
[64] Second, putting the matter over for a full bail hearing would delay the determination of bail for the defendant for whom release had been recommended, thereby leading to an unnecessary deprivation of liberty. This is exactly the scenario in the Mead case when the Crown asked me to strike the matter. I was the only justice of the peace in the courthouse that day which meant that Ms Mead would have been held in custody until at least the next day to then appear before another justice of the peace. As the Supreme Court said in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R 309 at para 47, '… Liberty lost is never regained and can never be fully compensated for…'.
In a speech to the Criminal Lawyers' Association on November 28, 2009, our colleague, Justice Marc Rosenberg, referred to Professor Friedland's 1965 report on the bail system in Toronto. Professor Friedland said that " the law should abhor any unnecessary deprivation of liberty and positive steps should be taken to ensure that detention before trial is kept to a minimum. "
Unreasonably prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of the Charter: see, for example, R. v. V.(J.) (2002), 163 C.C.C. (3d) 507 (Ont. S.C.). In this case, s. 503(1)(a) of the Criminal Code required that the respondent be taken before a justice without unreasonable delay and in any event within 24 hours of his arrest. Section 516(1) of the Criminal Code permitted an adjournment for no more than three clear days, except with the consent of the respondent. { emphasis added }
[66] As well, in Villota, supra, Hill J, commented on the need for fair and expeditious bail hearings when he stated:
Although a show cause hearing is not a trial, it is nevertheless an adversarial proceeding. As noted by this court, however, the orderly conduct of bail hearings is best achieved with goodwill and cooperation of counsel: Regina v. John, [2001] O.J. No. 3396 (S.C.J.) at para. 32, 54. Similar observations appear elsewhere: Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report, 1993) at 44-5; Report of the Criminal Justice Review Committee, supra at 5, 102-4. Formalism and inflexibility are undesirable. Professor Trotter, in The Law of Bail in Canada, supra, at 198, quite rightly comments that there is a need in bail hearings to resolve the tension between fairness and efficiency. As noted at page 45 of the Martin Committee Report, because there are co-operative dependencies in the administration of criminal proceedings, each of the participants independently possesses the power to nullify the system's continued viability. Within reasonable bounds, bail hearing procedure should be sufficiently flexible to promote both a fair and an expeditious proceeding. {emphasis added}
6.3 Conclusion
[67] I now consider the Crown's motion for me to strike the bail hearing and the motion for me to recuse myself for a reasonable apprehension of bias from the perspective of "[W]hat would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude [?] Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly [?]" (see Martin v. Sansome, supra).
[68] I conclude that a reasonable, informed person would have recognized that I was applying the law pertaining to the ladder principle, while considering the s. 11(e) Charter implications and also while showing considerable deference to the joint submission of counsel. I further conclude that informed person would have seen neither an actual bias nor a reasonable apprehension of bias in my application of the legal principles, in my actions or in my statements. Finally, I am of the view that same reasonable and informed person would have concluded that I acted with judicial impartiality and integrity.
[69] I have additional concerns about the impact of the Crown withdrawing its recommended release, seeking that I strike the hearing and to put it over to another day in front of another justice of the peace:
(a) Ms Mead would have lost her liberty for at least another day despite the fact that the Crown was originally recommending her release. This would lead to concerning implications under s. 11(e) of the Charter (see Zarinchang, supra).
(b) There would have been an unnecessary delay in the proceedings (see Villota, supra).
(c) The perception may have been left that the Crown can choose who hears the case. The Crown does not have that right. The Crown does have the right to seek a bail review when it disagrees with a bail justice's ruling.
[70] The Crown's onus was not discharged. Therefore, I denied the Crown's motion that I displayed a bias or there existed a reasonable apprehension of a bias. As well, I denied the motions of the Crown to strike the hearing.
7. THE CONTESTED BAIL HEARING
7.1 The Additional Allegations and Evidence of the Crown
[71] I note that the allegations heard earlier in the day (see above) formed part of the contested bail hearing.
[72] The value of the cocaine and marijuana found on Ms Mead when she was arrested was approximately $140. A piece of paper thought to be a debt list was found in the second bedroom occupied by Ms Mead and Jaren Sealey.
[73] The cutting agent found in the apartment was approximately 8 kilograms, in 11 baggies. The drug found in the first bedroom occupied by Jovan Morris was Fentanyl, which is a highly addictive and dangerous drug.
[74] Sgt Ben Bair of the Guelph Police Service gave evidence in this matter. Sgt Bair has extensive experience as a member of the Drug unit. I appreciated his attending on short notice to assist with the hearing. He was involved with the surveillance of Ms Mead and with her arrest at the Willow West Mall.
[75] He advised that Ms Mead had told him that she had moved to Guelph in February. She had sublet the 10 Ajax Street apartment. As noted earlier, she apparently shared a bedroom with Jaren Sealey. Sgt Bair believed they were a couple.
[76] When the apartment was searched by police, a note or sign found on the floor of the living or dining room area indicated that the defendant was out selling drugs. This is consistent with her having been arrested at about this time for allegedly doing exactly that. Sgt Bair did not testify that any drugs were found in Ms Mead's bedroom.
[77] The value of the seized 194 grams of cocaine was $19, 420 ($100 per gram). The 8 kilograms of cutting agent would have yielded up to 24 kilos of diluted cocaine for distribution.
[78] The debt list from her bedroom was explained by Sgt Bair. He believed that it was a note written by Ms Mead to Mr Sealey. The list likely referred to drug transactions. An entry on the list was '23.52' which the officer explained likely meant an amount of cash and the weight of drugs sold. One notation on the list indicated that someone owed $60 for drugs they had received but not paid for. Another note stated 'weighed him a Cuban' which Sgt Blair translated to mean that 7 grams of cocaine with a value of between $280 and $350 was provided to someone. Another entry indicated that Ms Mead had left $800 from Mr Morris for Mr Sealey.
[79] Sgt Bair testified that through a search warrant executed for Ms Mead's cellphone, police found evidence of drug transactions including arrangements to meet Shannon Duke twice on 30 March.
[80] According to the Sergeant, Jaren Sealey had an extensive criminal records for drug trafficking. Mr Sealey was currently on bail for drug trafficking and breach of his recognizance. He was under a 24 hour curfew to live at a residence in Brampton. Jovan Morris has a significant criminal record involving convictions for drugs, break and enter, assault cause bodily harms and firearms possession. Neither Mr Sealey nor Mr Morris had been arrested by the date of this bail hearing.
[81] Sgt Bair testified that he believes that Ms Mead is a user and dealer of cocaine. She was the only one of the three people who resided at the apartment who was observed by police to be allegedly selling drugs outside of the apartment. Mr Sealey generally stayed in the apartment while Mr Morris left from time to time during the early morning hours (2 AM) and did not return for several hours.
[82] During cross examination by Mr Valli, Sgt Bair stated that he believed Mr Sealey was a conduit to access a significantly larger amount of drugs. He believed that, due to Mr Sealey's 24 hour curfew, the drug trafficking operation would not happen nearly as effectively without Ms Mead.
7.2 The Testimony of the Proposed Surety
[83] Mr James Ladanyi, had known Ms Mead for about ten years. Her father is a friend of Mr Ladanyi's wife. He did not see Ms Mead frequently with the last time being in the summer of 2015 but did a couple of times per month speak with her on the telephone.
[84] Mr Ladanyi lives on a 30 acre horse farm near Flamborough (Hamilton area), with his wife Tracy and their two children (10 and 11 years old). Tracy's uncle lives there as well. All three of the adults offered to help monitor Ms Mead and would call the police, if she gave them any reason to do so. Ms Mead could live with the family with a bedroom for her own use. At least one of the adults is always at home and can keep track of Ms Mead's activities. As well, there is a video surveillance system with four cameras which monitors the property. He noted that few people visit the farm.
[85] He expressed surprise and concern about the possible addiction issues of Ms Mead. He committed to seek assistance for her to deal with any substance abuse issues. He advised that Ms Mead's father also offered to assist in this regard. He stated that he would be able to discern if Ms Mead was using drugs and would call the police. He and the other two adults would not tolerate any drug activity around his young children. As well, he would call the police if she broke any of the conditions of her bail.
[86] Mr Ladanyi understood the role of a surety and offered to perform that role if I required a surety. He fully understood his obligations. He believed that Ms Mead would respect the conditions and not break trust with him.
[87] During cross examination, Ms Quayle further explored the relationship with Ms Mead. Mr Ladanyi had a limited knowledge of her recent residences, employment, education and her relationships. He was unaware of either Mr Morris or Mr Sealey. He had not yet pursued any possible counselling for drug addictions but was aware of the Addiction Court Support Worker, Ms Rachel Doyle.
[88] In preparation for Ms Mead to possibly live at his home, he had held a family meeting with the members of his household. All were supportive of Ms Mead coming to live with them for a possibly extended period of time. Mr Ladanyi stated that Ms Mead could live with the family whether he was a surety or not but if she disrespected his house, family or children through any drug activities, he would call the police.
7.3 Submissions
[89] Mr Valli submitted that the amount of drugs seized from Ms Mead was small but a larger quantity was seized in the apartment. He suggested that the Crown's case was strong on the charges relating to the alleged trafficking and possession of drugs at the Willow West Mall. He further submitted that the Crown's case was weaker regarding the drugs seized in the apartment as Ms Mead had left prior to the execution of the search warrant. As well, Mr Sealey's history of drug convictions and his departure from the apartment immediately before the police arrived make it more likely that he was the primary character involved with those drugs. He also noted that no drugs were found in her bedroom. He also emphasized that Ms Mead had no criminal record.
[90] Mr Valli suggested a recognizance with a surety but acknowledged that if I decided a surety was unnecessary that an appropriate release plan could be constructed.
[91] Ms Quayle expressed concerns on the secondary grounds only. She submitted that the Crown's case was strong on all the charges including the possession for the purpose of trafficking charges related to the drugs found in the common living area of the apartment as Ms Mead had left that apartment only about 30 minutes prior to the execution of the search warrant. In her view, Ms Mead was a resident of the apartment and would have known about the drugs found within.
[92] The Crown expressed concern that the presence of about 194 grams of cocaine along with the 8 kilograms of cutting agent indicated a long time planned trafficking operation. She stated that while Mr Sealey may be the conduit for getting the large quantity of drugs but it was Ms Mead who was the conduit for the selling, as evidenced by the events at the Willow West Mall and the evidence seized from her cell phone.
[93] Ms Quayle expressed concern over the strength of the relationship between Ms Mead and Mr Ladanyi, as he knew very little of her recent history. Ms Quayle noted that no concrete plan for counselling for substance abuse issues had yet been put in place by the proposed surety. She also expressed some concern for the safety of the young children Ms Mead would be living with at Mr Ladanyi's home.
[94] Ms Quayle submitted that if I was to release, then due to the seriousness of the charges and Ms Mead's allegedly direct involvement in the trafficking activities, the supervision of a surety would be appropriate.
7.4 Analysis
[95] As only secondary ground concerns under s. 515(10)(b) of the Criminal Code are at issue, the test I must apply is whether, on a balance of probabilities, detention is necessary for the protection or safety of the public, including any victim or witness or person under the age of 18 years, or that the defendant will commit a criminal offence or interfere with the administration of justice. The key considerations to determine whether detention is necessary follow.
[96] Ms Mead has no prior criminal record or outstanding charges. Worth noting perhaps is that she spent from 30 March until 27 April in jail prior to this hearing. It is my understanding that this was her first such experience. I suspect it was an experience which she does not wish to repeat.
[97] While two sais (martial arts knives) were found in the apartment there is no suggestion that she ever had a weapon on her person. There was no suggestion of violence on her part, including when she was arrested by police. She was cooperative with them, after her arrest.
[98] In my view the Crown has a strong case on the charges relating to the allegations of trafficking and possession of drugs at the Willow West Mall. She had a total of 1 gram of cocaine (.66 grams went to Ms Duke) and .15 grams of marijuana, with a total street value of less than $400. She was observed by police completing what they viewed as a drug deal with Ms Duke for which she received money from Ms Duke. The evidence from her cell phone supported that she was meeting Ms Duke to conduct a drug deal.
[99] In my view there are triable issues on the possession for the purpose of trafficking charges relating to the drugs seized in the apartment and possession of monies over $5,000 obtained by an offence. Ms Mead was not there when the drugs and cash were discovered. The debt list from the bedroom, which Sgt Bair believed was written by her, showed only relatively small amounts of money involving her. The largest amount of $800 on the debt list was left purportedly by Mr Morris for Mr Sealey. As well, she had only $140 cash when arrested.
[100] Initial impressions suggest Ms Mead's involvement in drug trafficking at a high level as she shared the apartment with Mr Sealey and Mr Morris where a significant quantity of drugs and cash was found in the common living area. Both Mr Sealey and Mr Morris have significant criminal records for drug trafficking. Mr Sealey left the apartment at odd hours of the night for purposes which are as yet unknown.
[101] There were no drugs found in her bedroom. If a significant quantity of drugs had have been in her bedroom that would have provided a persuasive link of her control over those drugs thereby suggesting involvement in drug trafficking at a higher level.
[102] The debt list, video and physical surveillance information, as well as the drug seizure at the Willow West Mall suggest indicia of relatively low level 'street dealing' not that of a mastermind of a major trafficking operation.
[103] In considering the strength of the Crown's case, I am mindful of Justice Trotter's comments in Sotomayor for the need to take a cautious approach at bail. In that decision, the Court determined that the Crown's case was strong. Trotter J, held:
The case against Mr. Sotomayor appears to be strong. However, caution must be exercised in these circumstances because the Crown's case may appear artificially strong at a bail hearing. As Jackson J.A. said in R. v. Blind (1999), 139 C.C.C. (3d) 87 (Sask. C.A.), at p. 94: " There are many cases where the strength of the Crown's case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses." See also R. v. B. (A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 502. This caution would appear to apply with greater force in cases involving eyewitness identification. { emphasis added }
[104] Mr Valli's proposed plan included the following conditions. Ms Mead can live with the Ladanyi family whether Mr Ladanyi is a surety or not. She will be monitored by all three adults in the home none of whom has a criminal record. All are committed to call the police if she gives them any reason to do so. All three are aware of the need to ensure the safety of the two children in the family. Ms Mead will be under video surveillance while on the large property which is in a rural area near Flamborough. Appropriate conditions have been suggested including no contact with her co-accused, to not attend at the Ajax Street property and to not have any weapons or drugs. Counselling for substance abuse issues will be arranged. Ms Mead's father will support efforts to get her counselling. She will meet with the Addiction Court Support Worker to discuss supports in the community for any substance abuse issues Ms Mead may have. She is on ODSP and has no employment so she need not leave the property to attend work.
[105] I am cognizant that Ms Mead enjoys the presumption of innocence under s. 11(d) of the Charter and she is facing only allegations at this time. Nothing in those allegations suggests that she will be a danger to any victim or witness or person under the age of 18 or that she would interfere with the administration of justice, if I release her. I have no reason to believe that she will commit a criminal offence while on release. The plan, with or without a surety, is strong with appropriate conditions to protect the public.
[106] Therefore, on the secondary grounds, where the onus is the Crown's I find that the Crown has not shown cause why Ms Mead's detention is necessary and where the onus is hers, I find that Ms Mead has shown cause why her detention is not necessary.
7.5 What is the Appropriate Form of Release?
7.5.1 Common Considerations on the Crown and Reverse Onus Matters
[107] In the event that I am in error on the guidance provided by Smith, Alcantara and Thomson, supra on reverse onus matters I will analyze the appropriate form of release on both the Crown and reverse onus charges.
[108] I first take note of Justice Duncan's statement in Cole how the primary, secondary and tertiary grounds are the grounds necessary to climb the ladder of release. He stated:
… The Crown must move up the ladder and justify each greater level of restraint by showing cause. As Trotter points out in his book, at pp. 157-160 the primary secondary and tertiary grounds, while expressed as grounds for detention, are also the grounds that must be established to move up the ladder …. { emphasis added }
R v Cole, [2002] O.J. No. 4662, Ontario Court of Justice, Duncan J, at para 19
Therefore, without any primary or tertiary ground concerns having been expressed by the Crown, the challenge to climb the ladder of release solely on the secondary grounds becomes more challenging for the Crown. Conversely, on the reverse onus charges it makes it less difficult for Ms Mead to show cause why a lower form of release is appropriate.
[109] There are several considerations that apply equally to the Crown and reverse matters so I will set those out in advance.
[110] As Ms Mead has no record, I have no reason to believe that she will not follow any order of release I might make. A strong plan with appropriate conditions to the circumstances has been presented (see above) by Mr Valli. All of the adults had agreed to call the police, if her actions caused them concern. Mr Ladanyi will act as surety, if required.
[111] The Crown rightly pointed out that drug trafficking is a profit driven crime. Considering the set of allegations faced by Ms Mead, this suggests a form of release involving a bond amount to remove any enticements she may consider to engage in drug trafficking while on bail. A significant bond amount will provide a significant deterrence to ensure that Ms Mead follows a bail order.
7.5.2 Unique Considerations on the Crown Onus Matters
[112] I find to ensure the secondary ground concerns are met, conditions will be required as part of an appropriate plan of release so an undertaking without conditions will not suffice. For the reasons set out in the common considerations section above, a bond amount must be imposed. This eliminates an undertaking with conditions.
[113] I now consider a recognizance without sureties. The plan presented by Mr Valli would be strengthened with a curfew to ensure Ms Mead is in her residence between 10 PM and 7 AM unless she is in the presence of one of the other three adult residents. A significant bond amount will focus Ms Mead's mind on following her bail order. I have again reflected carefully on the fact that she has no criminal record, therefore I have no reason to believe that she will not follow a bail order. As well, there may be triable issues on the possession of proceeds of crime charge. With all of the factors considered, I need not climb the ladder further. I am satisfied that a recognizance without sureties but with the conditions articulated above, will address the secondary ground concerns. Therefore, the Crown cannot show cause for a form of release higher than under s. 515(2)(b).
7.5.3 Unique Considerations to the Reverse Onus Matters
[114] I begin with the highest form of release possible in these circumstances and then consider whether Ms Mead could show cause on that form of release. If so, then I will consider whether she can show cause on the form of release immediately below, as set out in s. 515(2)(a) to (e) of the Criminal Code but in descending order.
[115] I note that a release under s. 515(2)(e) was not possible because she is a local resident. As well, a release under s. 515(2)(d) was also not possible as the Crown did not give its consent for a cash bail form of release (see Rowan, supra, at para 2).
[116] Therefore, the most onerous form of release that I could have released Ms Mead on is a recognizance with a surety. In addition to the common considerations for both onuses described above, being under the supervision of a good and sufficient surety would address the secondary ground concerns. Therefore, she can show cause for her release with a surety, under s. 515(2)(c). I have not yet analyzed the sufficiency of Mr Ladanyi as a surety but will do so if a release with a surety is appropriate.
[117] I now consider whether a recognizance without a surety would be a suitable form of release. I adopt, for the same reasons, the same additional conditions to Mr Valli's proposed plan as mentioned in the Crown onus discussion above. As well, there may be triable issues on the possession for the purpose of drug trafficking charges related to the drugs seized from the apartment. With all of the factors considered, I find that with appropriate conditions, Ms Mead does not require the supervision of a surety while on bail. As noted earlier, being under the supervision of a surety is a deprivation of a defendant's liberty. Therefore, a recognizance without a surety, pursuant to s. 515(2)(b) is also a form of release on which I am satisfied that the secondary ground concerns can be met. Ms Mead can therefore also show cause for her release on this form of release.
[118] I now consider an undertaking with conditions. In the common considerations section above, I determined that a bond amount needed to be ordered in these circumstances. Therefore, an undertaking either with or without conditions would not satisfy the secondary ground concerns.
7.5.4 Decision on Ms Mead's form of release
[119] From the above analyses, I concluded that the lowest form of release on which Ms Mead can show cause for her release to address the secondary grounds is a recognizance without a surety on both the Crown and reverse onus charges. By applying the ladder principle I must choose the lowest form of release possible that will satisfy the secondary grounds regardless of where the onus lies.
[120] Therefore, I ordered her into a recognizance without a surety, with a bond amount of $2,500. That is a very significant amount for her as she receives only modest monthly ODSP payments. The following conditions to address the secondary ground concerns, formed part of the order:
Reside at 802 Middleton Rd, RR2 Hamilton, ON L0R 2H2
Remain in your residence daily between the hours of 10:00 PM and 7:00 AM EXCEPT unless you are in the presence of James Ladanyi, Tracey Joyce or Robert Warren Thompson.
Do not contact or communicate directly or indirectly by any physical, electronic or other means with the following: Jovan Anthony Morris, Jaren Christopher Sealey, Shannon Duke EXCEPT in the presence of legal counsel for the purpose of preparing a defence.
Do not be within 100 metres of any place you know the above person(s) to live, work, attend school, or happen to be.
Do not attend at 10 Ajax Street, Guelph, ON.
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, ammunition 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).
Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name.
Do not possess any weigh scales or drug paraphernalia.
You are to report to the addiction support worker (Rachel Doyle) within 48 hours of your release and thereafter as required.
[121] Finally, by applying the ladder principle and choosing the lowest form of release, I am satisfied that Ms Mead's s. 11(e) Charter rights to reasonable bail have been respected.
Released: May 25, 2016
Signed: "Justice of the Peace M A Cuthbertson"