WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD

(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) FAILURE TO COMPLY — Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: March 29, 2018

Court File No.: Ottawa 17-F5544

Parties

Between:

Her Majesty the Queen

— AND —

Jordan Noel

Before: Justice Norman Boxall

Heard on: March 27, 2018

Reasons for Decision released on: March 29, 2018

Counsel

Mr. D. Hayton — Counsel for the Crown

Ms. J. McKnight — for the Defendant, Jordan Noel

Decision

BOXALL, J.:

Introduction

[1] The accused is charged with a number of firearm offences and possession for the purposes of trafficking as well as breach of a recognizance.

[2] The accused is subject to five orders pursuant to section 109 or section 110 of the Criminal Code prohibiting him from possessing firearms.

[3] At the time of the alleged offences Mr. Noel had outstanding charges. These were resolved on February 9, 2018 when he pled guilty to offences contrary to s. 286.2 (receiving a benefit from sexual services), s. 266 (assault) and s. 733 (breach of probation). In addition to pre-sentence custody of 55 days, he was sentenced to an additional 7 days.

[4] The recognizance on which he was at large on October 12, 2017, the date of the alleged charges before the Court, had his mother as a surety and conditions including a curfew condition, a condition not to possess weapons and a condition to attend school or seek and maintain employment.

[5] The Crown is seeking the accused's detention on the secondary and tertiary grounds.

Mr. Noel's Criminal Record

[6] Mr. Noel has a serious and lengthy record. It commences as an adult in 2007 and continues right up to 2018. A number of the convictions are relevant to these proceedings. As an adult he was convicted of possession for the purpose of trafficking on two prior occasions and section 109 orders were made prohibiting him from possessing firearms. He has also been convicted of possession of a firearm, prohibited or restricted weapon obtained by crime. As an adult since 2007 until the present time he has been convicted seven times of either breach of undertaking or breach of a recognizance and five times of breach of probation.

Evidence

[7] There is overwhelming evidence that he was in possession of crack cocaine and the evidence is very strong that it was for the purposes of trafficking. The defence indicates there will be a Charter argument raised at trial with respect to the manner in which the strip search was conducted which if successful could result in the exclusion of the evidence and an acquittal.

[8] With respect to the firearm charges they are all dependent on the lawfulness and results of a search warrant executed at 1006-555 Anand Private. The evidence on these counts is circumstantial. There is evidence he attended the apartment a number of times and had a key. He was not present at the time of the search. The co-accused, apparently Ms. Noel's girlfriend, was present in the apartment. The gun and ammunition was located in a Lulu Lemon bag wrapped in clothes that were predominantly men's clothes. Forensic examination of the gun has been inconclusive and there is no forensic evidence to link the gun to anyone. Mr. Noel was not on the lease and although there is evidence of him attending and having access by key there is no evidence he or the co-accused were residing there.

[9] It is true that even the strongest looking case at the show cause stage may not turn out to be that way by trial time but in this case on the evidence presented the prosecution's case can be described as fairly strong on the drug charges but not particularly strong on the firearm offences.

Position of the Crown

[10] The Crown argues the accused should be detained on the secondary and tertiary grounds. The Crown states that it is a reverse onus and Mr. Noel has not met his onus to show that he should be released.

[11] The Crown points out the accused was on release, that being a recognizance with a surety and that he is now charged with extremely serious offences involving serious drugs and a loaded firearm. Furthermore, the Crown notes that his criminal record and the new allegations are compelling evidence that a recognizance with conditions is insufficient to protect the public and that his detention is necessary on the secondary ground. Furthermore a number of the statutory considerations for the tertiary ground are present and detention is also justified on the tertiary ground.

Position of the Defence and the Defence Plan

[12] The accused presented the accused's mother as a surety.

[13] The plan is for the accused to reside with his mother and to be supervised by her while also subject to electronic monitoring. The defence argues that the accused has met his onus. The proposed plan includes a surety and that is the strictest form of release. The defence points to the presumption of innocence, some weaknesses in the Crown's case and the Charter principles of a right to reasonable bail. The defence points out in considering release the Court should look to the future not the past.

Law

Onus

[14] This is a reverse onus. The onus is on Mr. Noel to show why he should not be detained.

• He is charged with indictable offences alleged to have been committed while at large after being released in respect of another indictable offence
• He is charged with both possessing a firearm and ammunition while subject to a Criminal Code prohibition on possessing these items

[15] R. v Antic is the current leading case on bail. Some relevant principles in that case applicable to the case at bar are:

(a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail;

(b) Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms;

(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1);

(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis, at para. 23. This principle must be adhered to strictly;

(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention;

(f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms;

(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate;

(h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable;

Additional Legal Considerations

[16] Bail is a possibility for all offences.

[17] With respect to all grounds but the secondary ground in particular, this is not a determination of guilt or innocence or of what happened in the past. The consideration is now focusing on the future. Is there a supervision plan that can reduce the risk of re-offending in a violent way or in a manner seriously affecting the protection of the public such that the accused's detention is not necessary?

[18] With respect to the tertiary ground the Criminal Code requires consideration of the apparent strength of the prosecution case, the gravity of the offence, the circumstances surrounding the commission of the offence including if a firearm was used and the potential for a lengthy term of imprisonment. These four factors are not exhaustive and even when all four are present the accused may still be released.

[19] Public confidence is measured by the standard of a reasonable, thoughtful, informed member of the community.

[20] It is important to be cautious in giving too much emphasis to the apparent strength of the Crown's case or the possibility of a lengthy term of imprisonment. What appears strong may not in fact be and one must keep in mind the presumption of innocence.

[21] The perceived strength of the release plan is always a factor.

Analysis

Onus of Proof

[22] This case is what is known as a reverse onus. In most cases the onus is on the Crown to show that detention is necessary and the ladder principle is strictly applied.

[23] In this case the onus is on the accused to show on a balance of probabilities that his detention is not justified.

[24] The reverse onus arises for a number of reasons.

[25] Although the ultimate onus does not change as a consequence, the fact is that this case involves a reverse onus for multiple reasons.

Secondary Ground

[26] The accused's record and the gun and drug charges before the court is strong evidence of a substantial likelihood that the accused would re-offend in a serious or violent way affecting public safety if he was to be released.

[27] Given the onus on the accused to show his detention is not justified and the evidence presented in this proceeding the perceived strength of the release plan becomes very important.

[28] The accused's plan involves a surety and electronic monitoring of a house arrest condition.

[29] The accused was out on a release and is now alleged to have committed serious offences involving both the possession for the purpose of trafficking in crack cocaine and possession of a firearm. The alleged offences are not ones that occur spontaneously and would require some significant prior activity.

[30] The accused proposed a release plan that would require house arrest monitored electronically with the only exception to be out of the residence when he is with his surety. This plan has attractiveness in that it is argued that the accused could not commit offences when at home or in the immediate presence of his surety.

[31] The accused's plan does not have to eliminate all risk of reoffending it only has to reduce the risk such that detention is no longer necessary.

[32] The existence of a surety performs two important functions with respect to bail. The first is that they may exercise some supervision over the accused. The second is equally important and that is that the relationship of the accused to the surety is such that the accused will feel morally as well as legally obliged to comply so as not to let his surety down.

[33] In this case the mother meets the starting point for a surety in that she is a person of good character, she knows the accused and she is prepared to take on the obligation of a surety. However on closer examination there are some weaknesses.

[34] Her inability to exercise moral control over the accused has already been demonstrated by his past record and although the accused is presumed innocent, likely also demonstrated by the alleged offences before the Court. In particular the drug offences which occurred when he was at large on a recognizance with his mother as a surety suggest a surety is insufficient.

[35] The proposal to consider complete house arrest as a form of release is in effect an acknowledgement of what the evidence otherwise clearly establishes, and that is the accused presents a substantial likelihood to reoffend and a surety alone is clearly inadequate.

[36] House arrest particularly when accompanied with electronic monitoring can be a very strong plan to protect the public. The accused's plan does not have to eliminate all risk of reoffending it only has to reduce the risk such that detention is no longer necessary.

[37] On the other hand house arrest should be carefully considered in the context of all the individual circumstances in the case and should not be imposed when a detention order is actually required.

[38] The allegations are that the accused is involved in drug trafficking at a moderate level. This inference can be drawn from the surveillance as well as the quantity and nature of the drugs involved.

[39] Similarly he is alleged to be in possession of a firearm while subject to firearms prohibitions as a result of prior firearm and drug offences.

[40] The contacts and skills necessary to engage in these activities are neither acquired nor lost overnight. Merely being in his residence does not eliminate although it does reduce his risk of re-offending.

[41] His inability to follow conditions is shown in his record including the numerous charges of failing to comply with Court imposed conditions as well as the outstanding charges.

[42] The proposed plan has a certain level attractiveness. However a Justice cannot simply defer to a house arrest plan and release this accused. Deeper analysis is required including examination of the extensive and continued nature of his criminal record, the number, nature and seriousness of the allegations before the Court as well as the strength of the evidence on the current outstanding charges.

[43] The accused's release plan is not perfect and it is not a guarantee that he will not commit an offence. That would be an unreasonably high standard. The accused's plan does not have to eliminate all risk of reoffending it only has to reduce the risk such that detention is no longer necessary.

[44] In this particular case, the release plan, involving a live in surety, a house arrest condition and electronic monitoring, is such that I am satisfied that with appropriate conditions the accused has met his onus to show that his detention is not necessary on the secondary ground.

Tertiary Ground

[45] There are a number of factors present with respect to the tertiary ground. The gravity of the offences are at a very high level involving possession for the purpose of trafficking in cocaine and possession of a loaded handgun. If convicted the potential for a lengthy term of imprisonment is clearly present.

[46] I am however concerned about the strength of the Crown's case and the likelihood of conviction. This of course must considered in the context of the presumption of innocence, the Charter right to reasonable bail, and the recognition that even the strongest looking case at the bail stage may not turn out that way.

[47] With respect to the tertiary ground it is not only the fact that a number of the statutory factors are present.

[48] In addition, the accused has a serious record for violence, firearms and drugs and he is the subject of Criminal Code orders prohibiting the possession of firearms.

[49] The criminal record contains numerous convictions for breach of pre-trial release orders.

[50] He was out of custody on a recognizance for serious charges when these offences are alleged to have occurred.

[51] Release plans reducing the risk of offending are particularly important when considering the secondary ground and the substantial likelihood an accused will commit an offence. Although the proposed plan is of less relevance with respect to the tertiary ground it remains a factor.

[52] A reasonable member of the public believes and supports the release of a person pre-trial unless just cause has been show for their detention. However that reasonable person also expects the system of pre-trial release to work and adequately protect the public.

[53] The strength of the Crown case is an important factor with respect to the tertiary ground. In fact, in some cases the strength of the Crown case when combined with the other circumstances is such that even if the secondary ground is satisfied and there is little or no risk of re-offending, that nevertheless there is no plan that can adequately address tertiary ground concerns.

[54] The tertiary ground is an additional basis on which detention can be justified and the release plan has little or no relevance to the statutorily mandated factors although it does still have some residual relevance with respect to the ultimate question of the public confidence in the administration of justice.

[55] However when the strength of the Crown's case is put in serious doubt an important but not determinative tertiary ground factor is absent. Although there is no hierarchy of statutory factors when considering the tertiary ground, clearly the strength of the Crown's case is a most important consideration. Pre-trial detention on a weak or doubtful case rather than maintaining confidence in the administration of justice can undermine it. In circumstances of a weak Crown case the strength of the accused's release plan becomes a more important factor when considering the tertiary ground.

[56] Given all of the evidence and circumstances in this case, I find the accused has met his onus to establish on a balance of probabilities that an informed and reasonable member of the public would not lose confidence in the administration of justice and the working of the pre-trial release regime if Mr. Noel was to be released on strict conditions including house arrest with electronic monitoring and a live in surety.

House Arrest and Electronic Monitoring

[57] I wish to say a few words about house arrest and electronic monitoring as it is more commonly being advanced or considered as part of a release plan.

[58] There are two competing submissions that are frequently made with respect to house arrest and electronic monitoring. The first is that in proposing house arrest and electronic monitoring, it is all but conceded that there is a substantial likelihood the accused will commit criminal offences, unless continually monitored and therefore he should be held in custody. The competing submission is that the conditions are so strict that it all but eliminates the risk of offending while on release and that the accused should therefore be released.

[59] House arrest and electronic monitoring potentially can significantly reduce the likelihood of an accused committing further offences on bail and in appropriate but infrequent circumstances can be an important consideration with respect to the secondary ground.

[60] With respect to the tertiary ground house arrest is of far less significance. House arrest and electronic monitoring does not address the statutory factors of strength of the Crown's case, likelihood of lengthy imprisonment on conviction, the gravity of the offence, or the circumstances of the offence or if a firearm was used.

[61] In considering pre-trial release no single factor is determinative and that is true with house arrest. House arrest with a surety and electronic monitoring is one small rung on the ladder away from a detention order. In fact house arrest should not be used when a detention order is appropriate.

[62] Furthermore, although House Arrest may give comfort that the release plan has been structured so that the community is well protected it should not be used lightly. It is a highly intrusive restriction on the liberty of a person who is presumed innocent and who has a constitutional right to bail.

[63] Although every case must considered on its own facts and circumstances house arrest is most likely to be an appropriate consideration when it is necessary to reduce the substantial likelihood of the accused' offending while on release and where detention is not necessary on the tertiary ground largely because of weaknesses in the Crown's case.

[64] In the case at Bar, I am satisfied that it is one of the rare cases in which strict house arrest with electronic monitoring are appropriate conditions in a pre-trial release order.

Release Order

[65] Therefore Mr. Noel is ordered released on a recognizance in the amount of $1,000.00, a surety that being his mother in the amount of $4,000.00 and on strict conditions including house arrest and electronic monitoring.

[66] The general framework is that he will be required to reside with his surety and remain in the residence at all times subject to very few exceptions while continuously being under electronic monitoring. When he will be permitted to leave the residence, it will be in the presence of his surety.

[67] Given the lack of reliable evidence about any meaningful employment or attendance at school, in the last 10 years, combined with the substantial likelihood he would commit offences if unsupervised, there will not be exceptions for work or school. Similarly, given the lack of evidence about who owns or attends at the recording studio, and apart from it being a passion of the accused, why it is critical for him to attend there, an exception to attend the recording studio will not be granted. I will hear submissions from counsel on the specific terms and wording of the release order.

Released: March 29, 2018

Signed: Justice Norman Boxall