Court Information
Date: 2016-07-22
Ontario Court of Justice
Toronto Region
Parties
Between:
The Queen
v.
Turmaine Daniel Gerro
Hearing Details
Reasons for Judgment: Judicial Interim Release Hearing
Hearing Date: July 18, 2016
Judgment: July 22, 2016
Counsel:
- Ms. K. Hughes, Crown Counsel, Guns and Gangs
- Mr. R. Lepore, Defence Counsel
Before: Mary A. Ross Hendriks, J.P.
Introduction
[1] The accused, Mr. Turmaine Daniel Gerro, is a 30-year old Canadian citizen, who resides in the suburb of Côte-des-Neiges, Montreal, Quebec. According to his girlfriend of two years, Sophia Oxley-Hall, who is one of his proposed sureties, he is employed by Bell Carrier, dealing with telephones and their programming, and he has had this position for three or four years.
[2] Mr. Gerro is before the court as part of "Project Sizzle". He faces one count in the Information sworn on June 2, 2016, count #43, for conspiracy to commit the indictable offence of firearms trafficking, contrary to s. 465(1) of the Criminal Code. In this count, the Crown alleges that Mr. Gerro, along with Easton Leduc and Seewa Lacle, between April 6th and April 24th, 2016, in the City of Toronto, Toronto Region, committed the offence of firearms trafficking.
[3] This is a reverse onus bail hearing, since Mr. Gerro is on an outstanding Promise to Appear from Quebec, for uttering threats. Crown counsel is not seeking an application under s.524 of the Criminal Code. Crown counsel is seeking his detention on the secondary and tertiary grounds.
His Criminal Record
[4] His criminal record was admitted for the purpose of the bail hearing, both in French (Exhibit 1A) and in English (Exhibit 1B). His record began as a youth in Montreal, and continued as an adult from 2005 to 2011. He has been convicted eight times as an adult for breach of recognizance, and once for breach of probation. He has also been convicted twice for both possession of a loaded prohibited or restricted firearm (2007 and 2011), and twice for possess firearm (or ammunition) contrary to a weapons prohibition (2007 and 2011). With respect to these convictions, he has served time in custody as a result. In addition, he has also been convicted of two counts for drug trafficking as an adult (2005), and for two counts of possession as a youth (2002).
Nature of the Allegations
The Part VI Interceptions
[5] On consent, the Project Sizzle Summary of Allegations pertaining to Mr. Gerro was read into the Record by the Crown counsel, and also made Exhibit 2. In it, the Crown summarized a series of 18 telephone or text communications, which were the subject of Part VI interceptions on the 514-550-5482 telephone number attributed to Mr. Gerro. Crown counsel was not certain who is the registered owner of this line, although she added that they are frequently contracted in the name of an alias, in any event. She added that the police established the ownership of this phone line through circumstantial evidence, such as tower usage.
[6] One of the key issues at this bail hearing is identity: is Mr. Gerro the male recorded as "Nuts" on the intercepted communications?
[7] Crown counsel admitted that Mr. Gerro was a "named person on part of the second ITO," hence the ability of the Crown's office to allege that Mr. Gerro was the male referred to as "Nuts" on the intercepted communications. Defence counsel stated on the record that he did not know any of this information, and that he did not know that his client had been the subject of the intercepts. Defence counsel stated flatly that the Crown's case will ultimately fail on the issue of identification.
[8] Crown counsel admits that this is a "dry conspiracy" meaning that while she alleges the essential elements of the offence are present to establish the offence of conspiracy to commit the offence of weapons trafficking, no firearm actually changed hands.
[9] The 18 intercepted communications were all close together in time, and clear in meaning. They began on April 6, 2016, when "Cy", who is believed to be Mr. Lacle contacted "Nuts", who is believed to be Mr. Gerro, to ask him to obtain a "Strizzy" to sell to him because he was planning on coming to the city (Montreal) on Friday or Saturday. Further discussion ensued, and "Nuts" asked him if he required two of them.
[10] More calls ensued over the following few days. "Nuts" received and made calls to Lacle. It was clear from the summary of these wiretaps that it was "Nuts" who is calling the guy, repeatedly, in order to procure the firearms. On April 10, 2016, session 1916, "Nuts" called Lacle and told him that the man had a "bad boy daegu daegu", and Lacle asked about its price. "Nuts" replied that he believed that the man wanted 24 for it. "Nuts" told him that this man had a link that showed him a two thing.
[11] Later on April 23, 2016, session 18881, the phone associated with Leduc sent a message to the phone associated with Lacle that read, https://en.m.wikipedia.org/wiki/jennings J-22. Five minutes prior to this message with the link, Lacle had sent a message to the phone associated with "Nuts" that included the same link. The Crown has confirmed that this link is a website that describes a Jenning J-22 Pistol, which is low quality pistol that contains a six-round magazine.
[12] The following day, "Nuts" called Lacle and asked if he had received the link, see: Session 4419. Lacle confirmed that he did and asked if that was what "Nuts" was talking about. "Nuts" told Lacle that one was gone but others were around. "Nuts" then described a "shaygot gaygun" that holds 7 or 8 bills that you can put in your pants. Lacle said that he needed a small one for the club but something bigger because it's Toronto even a "nina". "Nuts" replied there were two the other day but sold for 15 and 18 a piece, and that there are burners around. The discussion continued about what "Nuts" could obtain from the man in the way of firearms.
[13] Lacle then spoke a few times to an identified male, seeking a .22, which this unknown male said was gone, and then Lacle said he sought a .25 or .32 calibre firearm, and the unknown male said getting those was possible (Session 5327). In a further call between Lacle and this unknown male, they agreed to meet and do a 1, 2 thing, around the Buffalo Bills in LaSalle, Quebec. The wiretaps ended with Lacle parking the car to meet him (Sessions 5685 and 5687).
[14] The meaning of these calls and messages were crystal clear to me, particularly since the participants to these calls and messages included a link to a Jennings J-22 pistol, and a series of discussions about different available firearms and their prices.
[15] Crown counsel further alleges that in a different series of intercepts, which are not before me, Leduc was allegedly having a discussion with someone else about a recent murder, for which Leduc has not been charged. When I asked what the purpose of this additional information was, she replied that she wanted to demonstrate the link between Leduc and the Heart of a King gang. Other than the intercepts, which are before me, the Crown conceded that she does not have any other information linking Mr. Gerro to the Heart of a King gang.
[16] Crown counsel further alleged that Lacle was charged again in count #48 with others, in an unrelated transaction, seeking firearms from other sources besides Mr. Gerro.
Plan of Release
[17] Defence counsel called two proposed sureties, and Stephen Dan, who works for Recovery Science, regarding an electronic monitoring system, if needed. An exclusion order was made.
Ms. Sophia Oxley-Hall
[18] Ms. Sophia Oxley-Hall is Mr. Gerro's girlfriend of two years. She is a Canadian citizen, and 35 years old. This is the first time that she has offered to act as a surety. She has her own apartment, and works as a hairdresser. She testified that she has one entry on her Criminal Record, for over 80/impaired driving, from a charge that occurred about three years ago. Ms. Oxley-Hall said that she received a fine and that she currently has an interlock system on her vehicle, but it is scheduled to be removed in the fall.
[19] She testified that she has known Mr. Gerro for about 15 years, since she went to high school with his brother. Ms. Oxley-Hall testified that prior to his arrest, Mr. Gerro had lived in Côte-des-Neiges for about 1.5 to 2 years, and prior to that, he resided in Laval, Quebec. She said that he has been employed by Bell Carrier for three or four years, dealing with telephones and programming issues.
[20] Ms. Oxley-Hall was shown his record. She testified that she was aware of it, but not the extent of it. She testified that she knew he was released from prison a couple of years ago for a firearm offence, and she stated that she was aware of his outstanding charge, for which he was released on a Promise to Appear.
[21] When asked about his outstanding charge for uttering threats, she said she was there when it happened, at a place called the Beach Club, and described it as "boys being boys." When asked if this was a fight, she replied, yes, "two boys argued", and "one called the police".
[22] Ms. Oxley-Hall works full-time as a hairdresser at Sassy Coiffure, in Pierrefonds, which is a borough of Montreal. She has been a hairdresser since 2013. Her hours of work are Monday to Friday, 9 am to 5 pm, and about two Saturdays per month, also on a 9 am to 5 pm shift. She stated that she earns about $1000 per month. Ms. Oxley-Hall has between $2000 and $3000 in her savings account, and she is prepared to pledge it. She does not have any other assets, except her car. She offered to pledge $2000 in cash.
[23] Ms. Oxley-Hall has a two-bedroom apartment, and she is willing to have him move in and act as a residential surety, even though they don't normally cohabitate.
[24] She testified that he is very respectful of her, and that she would call the police if he breached his bail.
[25] Ms. Oxley-Hall is hopeful that he can maintain his employment, which she would like to see as an exception to a house arrest plan of release. She testified that her parents, who are retired, can watch him while she is at work, if he isn't permitted to return to his employment.
[26] She denied ever hearing him referred to as "Nuts" as a nickname, and she denied knowing the others implicated in the intercepted communications.
[27] Ms. Oxley-Hall is willing to pay for the electronic monitoring, even though it will be very expensive for her.
[28] It was clear from her testimony that prior to attending his bail hearing, she had been unaware of his previous breaches of recognizance. She had not seen his record prior to testifying in court at this hearing.
[29] When asked about his record for drug possession in 2002, or his firearm conviction from 2011, she replied, "it's not something we talk about."
[30] During cross-examination, Ms. Oxley-Hall became quite angry with an aggressive line of questioning that had to do with her lack of interest in his criminal antecedents. There were a number of heated exchanges in which she retorted that his criminal record "didn't come up", adding, "I wasn't around for it, so why would I inquire," and other comments to the effect that since it all happened prior to their relationship, she had no knowledge, and no interest in finding out about it.
[31] When pushed further about the fact that he spent time in jail for having a loaded gun in 2011, she said, "I don't like guns, I don't support them, and I don't care for them at all." Ms. Oxley-Hall said that she has told him not to be involved in that sort of thing, and that she is satisfied that he has done his time, and come out of prison. His criminal antecedents, prior to his relationship with her, were characterized by her as "old dog, dog is dead." She added again, "it has nothing to do with me, he did his time."
[32] Crown counsel pressed her about her drunk driving conviction and her lack of judgment in driving after too many drinks. She stated, "I made a mistake...I knew it was wrong. I did it."
[33] When pressed again about her judgment, or lack thereof, she replied, "I've learned from my mistakes, people grow." She continued to stress that she would supervise the accused and not permit any firearms in her home.
[34] When asked during cross-examination about his phone number, she replied his number was 438-926-2432, and she also said that she had never heard of the number in question, being 514-550-5482. Both 514 and 438 are Montreal area codes, she added.
[35] She was in her apartment at 930 Rue Central, #102, in Montreal, when he was arrested at her place on June 2, 2016. He was staying over for the night. She was at home when he was arrested. Ms. Oxley-Hall compared the police who arrested him to the "Ku Klux Klan" and to "thieves in the night", since they sent over "16 cops for one man." She accused the police of chanting things behind the walls. Ms. Oxley-Hall demanded proof of the warrant for arrest before she would surrender him to police, and said that it took police about 1.5 hours to provide that to her. She started to say that she didn't have any respect for the police, but then she stopped herself. She changed gears, and testified that once the police had provided her with this proof, she surrendered him, and said that they were very nice to him.
[36] When asked if she knew any of the others implicated in these intercepts, she said that she didn't know the telephone number, and didn't know "Cy", adding, "I'm from Montreal, I don't know anybody."
[37] In that spirit, Crown counsel also asked her if she was aware of the tattoos on both of his forearms, which state "BOUT IT" (Exhibit 4). She agreed that he had these tattoos, but she said that he had had them since he was young, and they didn't have any particular meaning. She said it was simply a "street saying" and a "rap thing" and then said, a thing "people say". When Crown counsel asked her if she had ever asked him why he had these tattoos, she replied that she "never asked."
[38] Ms. Oxley-Hall also testified that Mr. Gerro has a tattoo of a clown on his back, and "loyalty is royalty" on his arm. When cross-examined about the meaning of the latter tattoo, she spoke of her own loyalty, and how loyal he is, and how this is an important quality.
[39] Crown counsel asked her if she was aware of the Master P song by the same name (Exhibit 3), of which she said she only had some knowledge, indicating that it was a very old rap song, adding that she didn't know the lyrics, and wasn't sure if the artist was still alive. Crown counsel asked about the lyrics, which contain menacing references to drug dealing and murder. Crown counsel also asked her about the Urban Dictionary's online definition of "bout it", which indicates it is an adjective, with several meanings, that range from "(1) down for whatever (2) all about any or all of the hood, being gangsta, keeping it real, being hard or serious (3) generally better or more "all about" whatever is being compared (4) made popular and possibly coined by Master P down south on his first hit single..." None of the references to either the lyrics or the Urban Dictionary definitions seemed to strike a chord in his girlfriend.
[40] She volunteered that she attends church at "St. Paul's", in Lachine, and that she also sometimes goes to church with her father, at Trinity Church, since her father is a Freemason. She described her father as very loyal to the community, to his church, and to his lodge.
[41] When asked about St. Paul's, and her attendance there, she replied that it is located at 44th Avenue, in Lachine, Quebec. She described it as a Protestant church. When asked in cross-examination if it is an Anglican church, she said yes, and the name of her priest is Barry. She said that she likes to talk to her "Pastor", adding that he is the "guy I talk to about a lot of things."
[42] She said that the second church she attends is her father's church, "Trinity", on Sherbrooke, in Montreal. She said that she has gone there her whole life, since this is her father's main church. When asked when she was last there, she replied, "it's been so long", and couldn't recall when, but then said she thought it had been a few months, and that her boyfriend had joined her there.
[43] Throughout her cross-examination, there were outbursts, including one reference she made to a "shit storm", pointed retorts to the Crown asking if she had ever had a lapse in judgment, too, and unmistakable anger when asked if she was willfully blind as to her boyfriend's shortcomings. All in all, it was a very highly charged cross-examination for a bail hearing, the likes of which I seldom see.
Mr. Carlos Hall
[44] Mr. Carlos Hall is a 75-year old retired teacher, and a Canadian citizen. Ms. Oxley-Hall is his daughter, and he said that he has known Mr. Gerro as her boyfriend for about three years. He has no criminal record and no outstanding charges, and he is offering to act as a surety for Mr. Gerro, in order to assist her in monitoring him while she is at work.
[45] Mr. Hall and his wife live in a condominium in Dorval, Quebec, which they own. It has a value of about $290,000 and a mortgage of about $120,000. He and his wife both live on their pensions, since both of them are retired, and her employer closed because of a bankruptcy, so her income is quite limited. He is able to pledge $5000 in cash, and pledge a further $10,000, No Deposit.
[46] Mr. Hall is proud of his past service with the British Army, and his lengthy career as a teacher. He has been a Freemason for 35 years, and is a Past Grand Master. He is in both the Independent Order of Mechanics, and the Masons, and belongs to two lodges.
[47] During cross-examination, he was asked if his daughter goes to church with him. He testified that she had been an alter-girl at St.Paul's when she was younger, but that she does not attend church regularly now. He also testified that Mr. Gerro has never gone to church with him.
[48] During cross-examination, he was asked detailed questions about his church attendance. He testified that he attends "Trinity", located at Sherbrooke and Marlow, and St. Paul's, located on Côte-Sainte-Catherine, near the Jewish General Hospital. When asked if he attended St.Paul's on 44th Avenue, in Lachine, he said that it closed down about 15 years ago. He confirmed that it was at this church his daughter had been an alter-girl. When asked about a priest named Barry, he replied that Father Barry had become the Bishop for the Anglican Church in Montreal about eight years ago, and that he was now retired. He testified that that Barry had been the local priest in Lachine many years ago, but that his daughter would not have gone to him to discuss any issues once he became the Bishop.
[49] He was a candid witness, and said that he only sees Mr. Gerro once or twice per month, and a month or two could pass by without seeing him at all. He said that if he is approved as a surety, things will be different.
[50] During his examination in chief, he was asked what he would do if Mr. Gerro did not follow the conditions of a bail. His response was as follows:
If he is not at home when required, I will do my very best to understand where he is. If it becomes an annoyance, I will pull my bail.
[51] When defence counsel correctly advised him of his obligations, he reiterated the desire he has to "warn him once or twice" before pulling a house arrest bail and calling the police.
[52] It was only during cross-examination, when Crown counsel took him through Mr. Gerro's criminal record again, replete with serious gun offences and multiple breaches of bail, that he suddenly understood the need to call police "instantly", as he put it. The first time he had seen Mr. Gerro's record was at this bail hearing. It was clear that his daughter never told him that her boyfriend had any criminal antecedents. I am satisfied that he was being truthful when he testified in cross-examination in this regard.
[53] When confronted with the intercepted communications, Mr. Hall found them to be "speculative", and stated that he knew "Daniel and wanted to give him another chance". More importantly, from my perspective, Mr. Hall did not appear to grasp the meaning of terms such as "ting" and "cost 24" when those words were put to him. While he is intelligent and articulate, I find him to be too sheltered.
[54] After some back and forth during cross-examination, Mr. Hall admitted that he was prepared to give Mr. Gerro a second chance at bail, because of his Christian beliefs, rather than on any detailed knowledge of Mr. Gerro.
[55] When asked if he knew Mr. Gerro's telephone number, Mr. Hall checked his cell phone, and retrieved the following number: 514-812-0045, from a call that he missed in December, 2015. He believes that this number was changed, but did not have a new telephone number for him. He did not recall either the telephone number from the intercepts or the telephone number his daughter had provided to the court as belonging to Mr. Gerro.
Mr. Stephen Tan
[56] Mr. Stephen Tan of Recovery Science testified, as well. He is the Director of Operations at this organization, and its founding partner.
[57] He is in the business of installing electronic monitoring devices, and would attach an ankle bracelet to Mr. Gerro, hooked up to a Global Positioning Satellite ("GPS") system, for a monthly fee, that would track all inclusion and exclusion zones. The GPS system would track his coordinates once per minute, and report findings back to the corporation every ten minutes.
[58] Any breach triggers an alarm instantly, thus "superceding" the pre-scheduled ten minute intervals of data flow. These devices can be adjusted so that the corporation can speak to a surety if an accused leaves the residence for verification, and are voice-tested at the outset to confirm the identity of the surety. If they are suspicious, the corporation will contact both sureties to verify the story given to explain a breach.
[59] Breaches are reported to police by the corporation within 10 to 30 minutes of occurrence, and what he describes as a worst-case scenario is a 40-minute delay. His corporation has had previous success with their equipment in the Dorval and LaSalle areas of Quebec, which is where Ms. Oxley-Hall and her parents all reside. He said he could also run a radio frequency into their homes if there are any issues with the GPS tracking system.
[60] The system, however, has its flaws. There are "dead zones" where there are no cell towers, and thus the GPS system cannot track in those locations. In urban areas with large office towers, it can be difficult to pinpoint the exact location at an intersection of an accused wearing an ankle bracelet, and this is known as the "canyon effect".
Final Submissions
[61] Defence counsel stressed that his client had met his onus, since the plan proposed is an extremely strict plan of house arrest, that can include, if the court deems it necessary, electronic monitoring around the clock.
[62] Although his client has an unfortunate history of breaching recognizances, defence counsel pointed out that he has not committed any substantive new offences while in breach. He stressed that with constant monitoring, 24/7, and a secondary layer of electronic surveillance, what was being offered was really a different form of custody.
[63] Thus, in terms of the secondary ground, he argued that the risk of re-offence does not meet the threshold of "substantial", and provided me with case law on that point.
[64] Further, he argued that the tertiary ground has not been met, since no actual firearm was involved in this alleged "dry conspiracy" offence, and moreover, since the Crown has weaknesses with respect to their case in terms of identity, a reasonable member of the public might be "shocked" about the detention of someone for whom a conviction cannot likely be obtained.
[65] In terms of the proposed sureties, defence counsel submitted that while Ms. Oxley-Hall had some flaws as a surety, she was under a great deal of stress, and that she was candid and forthright about her conviction for impaired driving. With that one exception, she is law-abiding, and the stakes for her in this bail hearing are very high, since it is both the liberty of her boyfriend at stake, and all of her savings and a large part of her retired parents' assets. He also submitted that Mr. Hall is sincere, and a good communicator, who takes his responsibilities very seriously as a surety.
[66] Crown counsel argued that since Ms. Oxley-Hall was present when Mr. Gerro became aggressive at the Beach Club, that she is mistaken to believe that she can control his behavior now. Upon hearing this submission, Ms. Oxley-Hall had a further outburst.
[67] Crown counsel then argued that Mr. Hall did not know of his history of breaching recognizances prior to his attendance at this bail hearing, nor did he know of his history of convictions for possession of loaded firearms, and the time he served for same. At this point, Ms. Oxley-Hall stormed out of the court room in tears. More will be said about her behavior throughout this bail hearing under the Secondary Ground, below.
[68] She stressed that Mr. Gerro's tattoos stating, "Bout It", have a meaning, and that Ms. Oxley-Hall knew the meaning, but refused to testify to that effect.
[69] She argued that the sureties are not up to this task. Mr. Hall only came forward because of his Christian beliefs, and his little knowledge of Mr. Gerro. Crown counsel went so far as to accuse Ms. Oxley-Hall of both willful blindness, because she has never asked about his record or his tattoos, and also of perjury, vis-à-vis her testimony concerning her church attendance, in order to make herself sound like a better person and be more appealing as a surety.
[70] Crown counsel urged the court to take the intercepted communications seriously, referring to one particular case on point, and argued that the Crown does in fact have solid evidence against him.
[71] She further argued that the legal test for conspiracy has been met, and provided me with relevant jurisprudence, which was greatly appreciated.
[72] Crown counsel reviewed the evidence against both the secondary and tertiary grounds and urged that detention should be ordered, arguing that he is facing a significant sentence if convicted. Nevertheless, she said that if I were to release him, she urged me not to name Ms. Oxley-Hall. She also pointed out that electronic monitoring, if he were to be left alone, will not prevent him from making telephone calls, or having friends visit him at home.
[73] In Reply, defence counsel argued that the Crown's submissions about his tattoos and their meaning are neither credible nor reliable. The police officer who took the photographs entered as an exhibit actually recorded "BOUT.JT" on one arm, and "BOYT.JT" on the other. The Urban Dictionary she sited provided four very different meanings and he asked me to take nothing from it.
[74] In terms of whether or not Ms. Oxley-Hall committed perjury with respect to her testimony about church attendance, he maintained that the Crown cannot rely on any of this without violating the rule in Brown v. Dunn. He also argued that since she was vague about timeframes, and that it was as he put it, a "heated" cross-examination, it should not constitute perjury.
Analysis
The Right to Bail
[75] 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).
[76] Moreover, in R. v. Pearson, [1982] 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". More recently, 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.
Grounds for Detention
[77] Section 515(10) of the Criminal Code provides that detention is only justified when one or more of three separate grounds have been established. Crown counsel is seeking Mr. Gerro's detention on the secondary and tertiary grounds, which are set out under subsections 515(10)(b) and (c) of the Criminal Code.
The Secondary Ground
The Plan of Release is Very Flawed
[78] The plan of released proposed puts most of the onus on Ms. Oxley-Hall, since he is supposed to be her residential surety, and her father would only assist in monitoring Mr. Gerro while Ms. Oxley-Hall is at work.
[79] Clearly, Ms. Oxley-Hall is very loyal to Mr. Gerro, but I do not have any confidence that she would contact the authorities if he breached any conditions of his recognizance. Her evidence about the incident at the Beach Club, for example, was a clear attempt at minimizing his culpability, testifying that it was simply, "boys being boys."
[80] Her evidence about her church-going was clearly contradicted by her father, who testified that St. Paul's had closed down a number of years ago, and that the priest she had referred to, Father Barry, had been elevated to being the Anglican Bishop for Montreal, and had since retired. Crown counsel was so enraged that she characterized it as perjury, which is a mens rea offence. Given that her demeanour and the quality of her testimony throughout the bail hearing was volatile, emotional and minimalistic, I prefer to find that she simply lacks any credibility. I cannot rely on her to carry out her duties as a surety, because she is too emotionally invested in Mr. Gerro to report him to the police. It was Ms. Oxley-Hall who compared the officers who came to arrest him on June 2, 2016, to both the "Ku Klux Klan" and to "thieves in the night", and she would only release him to the police when they could satisfy her that they had a warrant for his arrest, even though he is an intelligent grown man, who could have made that decision for himself.
[81] Mr. Hall is a very distinguished older man, who is much more responsible and credible. However, he fails to understand the nuance of coded language, and he is very trusting of a man about whom he knows very little. He was quite surprised when he was taken through Mr. Gerro's criminal record, piece by piece, since he came to this bail hearing without being briefed about any of these issues by his daughter, even though she testified that she knew Mr. Gerro had done some time in prison. He put himself forward as the second surety, not the primary surety, without knowing about his serious criminal antecedents. While he said he was still prepared to act after reviewing Mr. Gerro's record, I am not satisfied that he is sufficiently street smart to manage Mr. Gerro by himself.
[82] The electronic monitoring system cannot prevent Mr. Gerro from engaging in illicit phone conversations, which is essentially the core of the allegations before me. It can only keep him indoors. Neither of the proposed sureties is appropriate in the circumstances.
He Often Defies Court Orders
[83] As an adult, Mr. Gerro has been convicted eight times for breach of recognizance, and once for breach of probation. Without some no-nonsense, solid sureties, I have no confidence that he will comply with any order that I make.
His Criminal Antecedents Correspond to his New Charges
[84] He has been convicted twice before for possession of a loaded firearm, and twice before for possession of a firearm (or ammunition) contrary to a weapons prohibition, all in 2007 and 2011. The new charge of conspiracy to traffic weapons corresponds to his antecedents. This is a serious issue of public safety, which can provide just cause to deny bail under s.515(10)(b), as per R. v. Morales, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91, at paragraph 38.
The Essential Elements of the Offence Exist
[85] This is a "dry conspiracy" case, meaning that no firearm changed hands. Mr. Justice Morgan in R. v. Khiar, 2015 ONSC 352 had a similar case in which the accused was charged with conspiracy to traffic weapons, contrary to s.465(1)(c) of the Criminal Code, where no firearm was located. His Honour accepted the intercepted communications as evidence of the fact of the agreement in paragraph 6, noting that the agreement itself forms the actus reus of the conspiracy, as per R. v. Papalia; R. v. Cotroni, [1979] 2 S.C.R. 256.
[86] Mr. Justice Morgan describes all the elements of this offence in paragraph 26 of Khiar, as follows:
In R. v. Carter, [1982] 1 S.C.R. 938, the Supreme Court held that for a conspiracy charge the Crown must show that there was (a) a conspiracy, (b) to traffic in [weapons], and (c) that the Defendant was a member of that conspiracy in the sense that he shared in the common design with his co-conspirators. To put it another way, the elements of conspiracy include "an intention to agree; completion of the agreement; and a common (unlawful) design": R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, at para 66 (Ont CA), citing USA v. Dynar, [1997] 2 S.C.R. 462, at para 86.
[87] After a careful review, I am satisfied that the essential elements of the offence could be proven at trial by the Crown against Mr. Gerro, based entirely on the intercepted communications.
[88] To be sure, there will be issues with respect to the admissibility of this wiretap evidence at trial, but at a bail hearing, "the wiretap evidence must simply be accepted as it is for what it evidently says and for the inferences it reasonably permits to be drawn when it is being considered," as per paragraph 21 of Mr. Justice Quigley's judgment in R. v. Abdullahi, 2013 ONSC 4873, on a bail review which overturned a judgment I made a few years ago. In that case, I had misgivings about the issue of admissibility of intercepts, without something more, which is the very point that defence counsel is making.
[89] More importantly, as a practical matter, the inferences to be drawn from this particular collection of wiretaps are quite clear. Despite my initial skepticism, after a careful review of my notes, I am relying on Crown counsel's response that Mr. Gerro was named in an ITO, which means that the intercepts were targeted. Thus, I am satisfied for the purpose of this bail hearing that "Nuts" is Mr. Gerro, and therefore, he is caught up in this conspiracy, as alleged.
[90] Although there was much discussion surrounding Mr. Gerro's tatoos that state, "BOUT IT", given the wide range of possible meanings they could have, I am not prepared to give them any weight.
The Tertiary Ground
[91] The judgment of the Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27 has changed the legal landscape on the tertiary ground. As Mr. Justice Trotter held in a recent bail review proceeding, R. v. Fleming, 2015, unreported, at p. 11 of his oral ruling:
At one time, and based on Regina and Mordue, it was thought that when all four factors in Section 515(10)(c) are engaged, with so-called "maximum force", a detention order must be made. Whether the court in Mordue actually said this is open to debate. However, in St. Cloud, the court rejected this proposition. The object of the exercise under Section 515(10)(c) is to determine whether detention is necessary to maintain confidence in the administration of justice. The four enumerated factors feed into that determination, but they are not exhaustive. Writing for the court, Justice Wagner identified other factors that might be important. Adverting to Section 515.10(c)(iii), i.e. the circumstances surrounding the commission of the offence, he said the following:
"I would add that the personal circumstances of the accused, age, criminal record, physical and mental condition, membership in a criminal organization, may also be relevant. The justice might also want to consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might take into account the fact that the trial of the accused will be held at a much later date."
[92] Thus, detention on the tertiary ground is not limited to exceptional circumstances, or to the most heinous of crimes, or even to certain classes of crimes, since St. Cloud.
[93] In this matter, the Crown has a strong case based on a series of readily discernable intercepts, which included a link to a description of a pistol, descriptions of firearms and prices. The offence is a serious matter, since the proliferation of firearms in large urban centres is contributing to a deterioration of our social fabric, and to concerning homicide rates, particularly in Toronto. This case is a dry conspiracy, however, and no firearm was actually procured. If Mr. Gerro is convicted, because of his related antecedents, I expect his sentence to be about 7 years, see: R. v. Nour Marakah, 2015 ONSC 1576, who received a 9-year sentence, and R. v. Abdullahi, 2015 ONSC 4163, who received a 4-year sentence. I have read a number of recent sentences imposed on those convicted of conspiracy to traffic firearms, and the judgments all stress the principles of denunciation and deterrence for this type of crime, as opposed to rehabilitation.
[94] Given his antecedents for related firearm activity, I find that a reasonable member of the public, who understood the Charter right not to be detained without just cause, would lose confidence in the administration of justice if he were to be released in the face of the compelling evidence before me.
[95] For the reasons outlined above, Mr. Gerro has not shown cause why he should be released.
Order
[96] I hereby detain Mr. Gerro on the secondary and tertiary grounds.
Dated at Toronto, this 22nd day of July, 2016.
Mary A. Ross Hendriks