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 ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD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the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as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: 2019-10-28

Court File No.: 3111-998-19-30497-00

Between:

Her Majesty the Queen

— and —

Jamar Morgan

Before: Justice A.D. Dellandrea

Heard: Friday, October 25, 2019

Reasons for Judgment provided: Monday, October 28, 2019

Counsel:

• V. Aujla, counsel for the Crown
• R. Kodsey, counsel for the accused Jamar Morgan

Reasons for Judgment

DELLANDREA J.:

I. The Allegations

[1] Jamar Morgan is charged with eight firearms offences under sections 90, 91, 92, 94 and 95 of the Criminal Code, as well as a single count of possession of a Schedule I substance (cocaine) under the Controlled Drugs and Substances Act.

[2] The Crown bore the onus at this bail hearing. On behalf of the Crown, Mr. Aujla submitted that a detention order was justified and necessary in Mr. Morgan's case, based on the strength of the tertiary grounds expressed in s. 515(10)(c) of the Criminal Code.

[3] Mr. Kodsey did not deny the significance of the concern posed by his client's alleged possession of a firearm. Relying on the instructive principles from the Supreme Court of Canada's decisions in Antic and St. Cloud, Mr. Kodsey argued that the proposed plan of release, of a house-arrest under the supervision of his two parents, assisted by other members of their extended community, is both meaningful and sufficient to ensure the maintenance of the public's confidence in the administration of justice.

The Facts

[4] In the early morning hours of October 14, 2019, Constables Cerovich and Sanga of the O.P.P. Port Credit detachment were conducting a static RIDE check at the southbound ramp from Winston Churchill Boulevard to the QEW in the city of Mississauga.

[5] At 2:04 a.m. a white Jeep Compass approached the RIDE check and was signaled to stop. The officers approached the vehicle and observed four occupants within.

[6] The driver rolled his window down, and a cloud of freshly burnt marijuana billowed out from the car. The strong odour of cannabis and grey smoke were obvious to both officers. The driver was asked for identification, which he provided. He was then directed to pull the car over to the shoulder, where he was advised that the vehicle and its occupants would be searched pursuant to s. 12(3) of the Cannabis Control Act.

[7] It was then that Cst. Cerovich approached the passenger side of the vehicle, and saw the defendant, Mr. Morgan, in the front seat, holding a freshly burnt joint. At 2:06 a.m. the officer informed Mr. Morgan that he would be searching him for marijuana. Mr. Morgan replied that all he had was the joint. Before commencing his search of the defendant, Cst. Cerovich asked Mr. Morgan if he had anything on his person "that would stick him or harm him." Mr. Morgan said no.

[8] Cst. Cerovich lifted up the front of Mr. Morgan's sweater to conduct the pat-down search, and immediately observed the black handle of a gun protruding from Mr. Morgan's waistband. The officer called the gun out to his fellow officers, and the defendant was immediately restrained.

[9] The firearm was seized. It was determined to be a 40 caliber, semi-automatic pistol. There was no dispute that this item is a prohibited firearm.

[10] The firearm was loaded, and included a magazine containing 11 rounds of live ammunition.

[11] At 2:06 a.m., Mr. Morgan was arrested for possession of a firearm. He was provided with his rights to counsel and cautioned. Mr. Morgan was then transported by police cruiser to the nearest detachment for processing. Officers searched the back seat of the cruiser used to transport Mr. Morgan sometime after his lodging process. There, they found a bag containing 5.9 grams of a white substance believed to be cocaine. The cruiser had been inspected and confirmed to be free of any such items prior to it being used to transport Mr. Morgan to the station. The defendant was additionally charged with possession of a Schedule I substance under s. 4 of the CDSA.

II. Proposed Sureties and Plan of Release

[12] Mr. Morgan is fortunate to have two parents, both of whom testified at the bail hearing. There were also numerous additional friends and family members in court during the hearing, presumably to offer their support, and if need be, their assistance in the supervision of Mr. Morgan were he to be released. Their presence in court was an impressive reflection of the community support which Mr. Morgan is fortunate to enjoy.

[13] It was apparent that both of Mr. Morgan's parents are in a state of shock, grave concern, and disappointment in the situation that their son Jamar finds himself in.

[14] Both the defendant's father, Derrick Morgan, and his mother, Pauline Brown, are permanent residents of Canada. They have lived in their home, which they rent, for over 12 years. Collectively, Mr. Morgan and Ms. Brown work hard to earn what is required to cover their rent, and the expenses of their household – which include those of their son Jamar.

[15] Mr. Morgan works full-time as a courier and earns approximately $35,000/year. He works Monday to Friday, from 7:00 a.m. to 5:00 or 5:30 p.m. Ms. Brown works part-time as a caregiver in two locations. She works from 3:00 p.m. to 5:30 p.m. at one of her jobs, and one night per weekend she works an overnight shift at her other place of employment. Ms. Brown earns approximately $12,000/year. Collectively, the family's current total savings is $5,000, which both Mr. Morgan and Ms. Brown expressed their willingness to pledge.

[16] Jamar's parents both confirmed that their son does not have a job, and therefore he depends on them to cover his expenses for school supplies and clothing, as well as pocket money for food, movies, etc.

[17] Neither of Jamar's parents had any indication of even the potential for their son to be involved with drugs, or guns. Both testified that they felt they had a good relationship with their son and believed that they would be able to tell if something was "off" with him. Mr. Morgan and Ms. Brown indicated that when Jamar went out late at night, they assumed that he was just "hanging out" with his friends, perhaps playing video games. They know a few of his friends, but not all of them.

[18] Prior to his arrest on October 14th, Jamar had not exhibited any unusual or concerning behaviors to his parents, nor had he complained about any concerns for his safety, such as being bullied. Ms. Brown provided certificates indicating that Jamar had participated in two community programs at the Erin Mills Community Centre, where he acted as a mentor for younger youth, and completed a life skills program.

[19] The plan proposed by Mr. Morgan's family is an effective house arrest. Mr. Morgan Sr. indicated that he could take his son to work with him each day. Alternatively, Jamar could remain at home each day with his mother until her departure for work at 3:00 p.m., and his older brother or other extended family members could bridge the gap until his father's return from work at 5:30 p.m.

[20] Mr. Morgan Sr. has acted as a surety on behalf of his nephew on two occasions in the past. One of these bails for which he acted as surety involved a house arrest condition, which he testified that he effectively monitored though unannounced compliance checks and strict rules during the currency of the release, for which there were no breaches.

III. The Law

[21] It is by now a well-recognized principle of law that the starting point for any informed discussion about judicial interim release must be clear recognition of the deeply held principles of Canadians' right to liberty, and the presumption of innocence among the most protected values of our democratic society: St. Cloud, 2015 SCC 27 at para. 1; Antic, 2017 SCC 27, at para. 33; A.B., [2006] O.J. No. 394 (S.C.J). at para. 10.

[22] Most recently in Myers, 2019 SCC 18, the Supreme Court of Canada very helpfully distilled the primacy of these principles in the opening passage of that decision, as follows:

The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release – at the earliest opportunity and in the least onerous manner – is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.

[23] Of course, exceptions to presumptive release can, and will, be justified in those more rare circumstances where the accused's fundamental right to freedom must be overridden in order to ensure the accused's attendance in court, prevent further offences, or to ensure the public's confidence in the administration of justice.

[24] The Crown's request for Mr. Morgan's detention in this case relies almost exclusively on the tertiary ground. While the seriousness of the firearms offences necessarily raise genuine concerns for public safety, and the spectre of further offences, Mr. Aujla for the Crown very fairly conceded that the house arrest plan being proposed, if granted, would likely be effective in eliminating the concerns arising under the secondary ground.

[25] The Crown submits that Mr. Morgan's detention can be entirely justified under the tertiary ground of s. 515(10)(c), as his detention is necessary in order to maintain confidence in the administration of justice.

[26] Relying on the language of (then) Chief Justice McLachlin in Hall, Mr. Aujla reminds me that the Supreme Court of Canada recognized that in some circumstances it may be necessary to deny the accused bail, even where there is no risk that he will not attend trial, or reoffend or interfere with the administration of justice. The Crown submits that this is precisely one of those cases, where the public's confidence in the justice system as a whole would be compromised if a release were to be granted in the circumstances of this case.

IV. Local Firearm Statistics

[27] The Crown provided me with the statistics which confirm the disturbing trend which is so regularly reported on in the media, and of which the public is inevitably aware. Weapons offences continue to be on the staggering rise in this community. In 2018, there was a 46.8% increase in the number of firearms offences laid in the Peel Region, as compared to the previous year. That same year, 10 of the Region's 26 homicides were committed with a firearm, an increase of 62.5% from 2017.

[28] The most recent statistics reflect a consistently daunting trend. As of September 26, 2019, over 160 firearms related charges have been laid, and 84 firearms have been reported as having discharged. Of the 20 homicides reported as of that date, seven were attributable to firearms. Within three weeks of this bail hearing, there have been at least three shootings reported in the Peel Region, one of them within only a few kilometres of the courthouse.

[29] In addition to these statistics, the factors on which the Crown relies in support of his request flow directly from the non-exhaustive criteria contained in the tertiary ground. I will address each of these, in turn.

V. Analysis

1) The Apparent Strength of the Prosecution's Case

[30] I accept the Crown's description of the strength of its case against Mr. Morgan as being very strong. Sadly, firearms are not uncommonly located within vehicles in our community. Often the location of the item (i.e.: under a seat, within a glove box) creates legal uncertainty as to each person's degree of knowledge and control over that item – such that the strength of the Crown's case is necessarily impacted, on that issue.

[31] There is no such uncertainty here. The allegations are that the firearm was tucked down the front of Mr. Morgan's waistband. The evidence of the defendant's knowledge and control over the gun could broker little debate in this case. The public's confidence in the justice system would be justifiably engaged by its consideration of this factor.

[32] The item was discovered as a result of a search conducted pursuant to s. 12(3) the Cannabis Control Act, which permits a police officer to search a vehicle, and any of its occupants, where there are reasonable grounds to believe that cannabis is being contained within the vehicle. On its face, the legislation offers authority for the search which was conducted, subject to a potential challenge to the existence of reasonable and probable grounds. It will of course be for a later court to consider and resolve the existence of any potential Charter arguments or constitutional challenges which may bear on the admissibility of the evidence yielded from the search. For the purpose of my assessment of the allegations under s. 515(10)(c)(i), I would assess the prima facie case against Mr. Morgan's possession of the prohibited firearm in his waistband as being strong.

2) The Gravity of the Offence

[33] Here the court must determine the "objective" gravity of the offence in comparison with other offences in the Criminal Code. Consideration should be given to the maximum available sentence, as well as any minimum sentences, if any, provided in the Code.

[34] The firearms offences which Mr. Morgan faces expose him to maximum penalties of between 5 and 10 years' imprisonment. The offences are objectively serious.

3) The Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was Used

[35] The court's assessment of this factor is not unlike the assessment of aggravating and mitigating circumstances of an offence at sentencing, albeit one conducted in respect of what are allegations only. It is noteworthy that while in declining to articulate an exhaustive list of factors for the court's consideration at this stage, Parliament chose to give explicit emphasis to one element of clear concern: firearms.

[36] The rationale for the singling out the use of firearms as an element likely to attract grave concern in the public's mind is simple. Illegal firearms have no place in a safe and civilized society. By their very existence, firearms undermine the core values of safety and freedom which underpin our existence, and which Canadians are entitled to expect. People should expect that their concerns around firearms, and their safety, will be considered by the courts in their consideration of those who are found to be in possession of deadly weapons in the public realm. The steady, continuous and recent proliferation of gun violence in this very jurisdiction has been the subject of both the courts and the public's increased attention and concern, for very good reason.

[37] I adopt the observations astutely offered by Justice D.E. Harris of the Superior Court of Justice, of this jurisdiction, from his recent sentencing decision in Kawal, 2018 ONSC 7531, on the inevitably grave nature of firearms offences. The risk of inflicting catastrophic harm to another with a gun is "all too easy." By its very design, a firearm's capacity to cause so much damage, with so little foresight or effort, is among the features which makes it deserving of heightened concern and attention by the court.

[38] Also, the possession of a prohibited firearm does not arise from a momentary lapse of judgment. As Justice Harris observed, a person does not "stumble upon an illegal handgun" (Kawal, at para. 16). The acquisition presumably begins with the decision to ask for, or to accept, what is known to be an illegal weapon, which they then must hide from their family, the public, and the police, in order to avoid detection, and potential prosecution.

[39] There is no information before me about how long Mr. Morgan was in possession of the firearm which was located on his person on October 14, 2019. All that is known is that the item was secreted in the front waistband of his pants, and that it was loaded.

[40] The type of gun that Mr. Morgan was carrying is a factor of significance at this stage of the inquiry under s. 515 – which calls for an examination of the particular circumstances of the individual allegation.

[41] There are unfortunately a great many types of weapons which find their way into people's hands on the streets of Brampton, and are considered among the class of firearms for which the court's and the public's concern are engaged. Some are imitations, which are identical in their capacity to frighten and intimidate, but which lack the actual ability to deliver on the deadly threat of their mock design. Then there are air pistols, starter pistols, and other items which are real, and may also discharge projectiles capable of causing significant, but less deadly harm.

[42] Mr. Morgan is alleged to have been in physical possession of a 40 calibre semi-automatic handgun in the waistband of his pants. A photo of the item was submitted into evidence. It is very clearly not a toy. It is a serious, deadly weapon.

[43] The gun was also fully loaded, with 11 rounds of live ammunition.

[44] It was also being transported in a motor vehicle, in the early morning hours within the community. It is alleged that marijuana was been consumed within the vehicle during its possession by the defendant.

[45] Each of these additional factors – the possession of readily available ammunition, and the transportation of the prohibited firearm within a vehicle, within which drugs were suspected to be used – attract separate charges, reflecting Parliament's recognition of these additional, escalating hazards beyond the mere possession of the firearm itself.

[46] The allegations here involve a combination of elevated risks engaged by the defendant's possession of a particularly lethal, semi-automatic loaded weapon secreted in his pants within a moving vehicle in which intoxicants were believed to be actively consumed.

[47] Mr. Kodsey correctly notes that the allegations do not include any suggestion of Mr. Morgan's use of the firearm against any person, nor of any gang or terrorist activity or affiliation. While it is alleged that Mr. Morgan was recently smoking marijuana and was in possession of a reasonably small quantity of cocaine at the time of his arrest, absent from the allegations here are any additional items pointing overtly to the spectre of high-level or organized drug trafficking, as were present in both Whervin, [2006] O.J. No. 443 (S.C.J.) and Smikle, 2010 ONSC 5311, in which detention orders were upheld on the basis of secondary and tertiary ground concerns.

4) The Fact That the Accused Is Liable, on Conviction, for a Potentially Lengthy Term of Imprisonment, or in the Case of an Offence That Involves or Whose Subject-Matter Is, a Firearm, a Minimum Punishment of Imprisonment for a Term of Three Years or More

[48] There was no disagreement between counsel that Mr. Morgan faces a penitentiary term of imprisonment for his offences, of a suggested range of two to four years, due to the objective seriousness of the firearms offences alleged.

[49] Mr. Kodsey emphasized his client's youthful age (18), lack of prior conflict with the law, absence of a criminal record, and strong family support among the mitigating circumstances which I accept would be very relevant at the sentencing stage, were convictions to be entered. These same factors of course bear on my consideration here, of whether the very compelling tertiary ground concerns can be adequately addressed by a form of release for Mr. Morgan.

[50] The Supreme Court of Canada's imperative as conveyed in Antic with respect to the proper application of the bail provisions at a contested hearing are very clear. Each rung of restriction up the ladder of release must be considered individually and rejected before moving to a more restrictive, or higher step: Antic, 2017 SCC 27, at para. 67.

[51] What is being proposed here, as an alternative to the detention order sought by the Crown, is essentially the highest and most restrictive rung on the proverbial release ladder. The proposed plan would be to release Mr. Morgan from detention, but effectively to confine him within his residence at all times, except while in the direct supervision of one or more of his parents.

[52] The $5,000 monetary pledge which Mr. Morgan and Ms. Brown are prepared to make is relatively modest, but to them, represents all of their savings. Ms. Brown testified that she is prepared to risk it all to give her son Jamar "this one chance."

VI. Disposition

[53] The question before me is: would a reasonable member of the community be satisfied by the Crown's request, that denial of bail is necessary to maintain confidence in the administration of justice: (St. Cloud, 2015 SCC 27, at para. 68). Or would the proposed plan of release satisfy the public's confidence with the administration of justice, given their awareness of these allegations, as well as of the presumption of innocence, and Mr. Morgan's constitutional right not to be denied reasonable bail?

[54] I accept that both Mr. Morgan and Ms. Brown are good people, and devoted parents whose pledge to supervise their son, should he be released, is sincere and well-meaning. I believed them when they testified before me that they would do anything within their power to strictly supervise their son's release, if granted, including their pledge to enforce a house arrest supervision and to report any observed breaches to the police.

[55] Mr. Morgan's age, of being only 18, and his absence of a criminal record or outstanding charges are factors that suggest his potential to be amenable to the terms of a strict release. I have considered these factors very carefully.

[56] Unfortunately, the coincidence of a loaded secreted firearm, lit marijuana and 5g of cocaine within a moving vehicle cogently raise the spectre of Mr. Morgan's emergent participation in the drug trade, a factor which is of acute concern under the tertiary grounds.

[57] As I have stated earlier, one does not acquire a gun by accident. Nor do they easily acquire the ammunition which makes the item a lethal one, once loaded. Each of these are steps in a process of escalating risk chosen by those who take loaded firearms out into the public: risks for which the public looks to the police and to the courts for protection.

[58] In Omar, 2018 ONCA 975, our Court of Appeal recognized that the community's desire to live free from the threat of illegal guns is neither irrational nor impulsive. Indeed, it is their right. The tertiary ground under s. 515(10) is designed precisely for the purpose of including society's confidence in our system of justice among the factors for consideration at the judicial interim release stage.

[59] The four enumerated factors under s. 515(10)(c) point towards detention. The allegations are very serious, the Crown's case is strong, and a lengthy term of imprisonment would likely be imposed upon conviction for the offences alleged. Mr. Kodsey advanced a compelling argument that owing to his relative youth, and absence of a criminal record, the proposed plan of supervision by Mr. Morgan's parents would be sufficient to extinguish any concerns engaged under the tertiary grounds, and would preserve the public's confidence in the system of justice.

[60] The tension between the compelling tertiary ground concerns, and Mr. Morgan's age make this a very difficult case.

[61] Having considered the strength of the allegations, counsel's submissions, as well as the proposed plan of release, I have concluded that the proposed plan of release is not sufficient to dissipate the strong concerns under the tertiary grounds.

[62] I find that the Crown has discharged its onus in establishing that the defendant's detention is necessary under the tertiary ground of s. 515(10)(c).

[63] There will be an order for detention.

Released: October 28, 2019

Signed: Justice A.D. Dellandrea