Court File and Parties
Date: May 10, 2019
Information No.: 2811 998 18 25328 00
Ontario Court of Justice
Her Majesty the Queen
v.
Stevie J. Squires
Proceedings
Before the Honourable Justice G. Wakefield
On May 10, 2019, at Oshawa, Ontario
Appearances
B. Guertin – Counsel for the Crown
L. Shemesh – Counsel for Stevie Squires
Hearing Transcript
Morning Session
THE COURT: All right, so you're up to speed. But as priorities go you need some time first.
MR. GUERTIN: Not much, but yeah, a little bit of time would be appreciated just to make sure we can run things efficiently once we get started.
THE COURT: And to give me some reading material, do you have the transcripts and assuming there's a prior record, any prior record?
MS. SHEMESH: There's no prior record. The Superior Court decision and lower court rulings, Your Honour, I understand Mr. Guertin was going to print them off, I was having trouble printing at home. But I understand the copy that he brought this morning isn't a full and complete copy, so we're endeavouring to get you that copy as quickly as possible.
THE COURT: Fortuitously there may be other files on my desk that I can keep busy with.
MS. SHEMESH: Okay.
THE COURT: So I'm just....
MS. SHEMESH: How do we get...
THE COURT: Is that the....
MS. SHEMESH: ...how do we get those to you though? I'm presuming we can...
THE COURT: Oh...
MS. SHEMESH: ...get those to you somehow.
THE COURT: ...just email, if it's electronic, send it to Ms....
MR. GUERTIN: I have hard copies waiting on the printer right now...
MS. SHEMESH: Perfect.
MR. GUERTIN: ...that I can...
THE COURT: Oh.
MR. GUERTIN: ...literally steps downstairs to get.
THE COURT: In that case I'll just sit here.
MR. GUERTIN: Sure, if that, if that works. So what I'll have for Your Honour is the bail review decision, the transcript from the bail hearing, which also includes the initial justice's bail decision. So those would be the materials that I'll for Your Honour.
THE COURT: Perfect.
COURT REPORTER: Shall we go off the record, Your Honour?
THE COURT: Might as well.
...OFF THE RECORD
...ON THE RECORD
MR. GUERTIN: It's printed in its entirety there, Your Honour.
THE COURT: I am certifying the statement. And the bail review decision as well. We should go back on the record.
COURT REPORTER: On the record again.
THE COURT: Thank you.
MR. GUERTIN: Sir, I'm passing up the transcript of the proceedings at the initial show-cause in front of the Honorable Justice of the Peace Forestall and the reasons for decision from the Honourable Justice De Sa on the bail review. Is my friend putting forward any affidavit evidence in relation to this hearing? No?
THE COURT: Is the intention viva voce or just an agreement between counsel as to its perspective witnesses?
MS. SHEMESH: It is the same for – maybe I'll re-address it when Mr. Squires comes up, but just to give Your Honour some insight into it, at the lower court bail his mother, Colleen Squires, and sister were proposed as sureties. At the bail review – and they were obviously cross-examined and examined. At the bail review stage I don't believe any evidence was called viva voce, it was all done by argument as to whether or not there was an error in law. And there was a different surety proposed. So there was one, a different sister, Stephanie Squires at the bail review stage together with Ms. Colleen Squires. So the – I know my friend has a very good command of the affidavits, 'cause they are part of the bail materials that were submitted to the, the Crown's office, I don't know if my friend has had even an opportunity to look at them. But certainly the plan isn't going to, to change at all, Your Honour. This, in my respectful submission, is a tertiary ground concern as I see it, even in the lower court decision the Justice didn't appear to have any grave concerns about secondary grounds, it's more a tertiary-related issue and both decisions didn't deal with a warrant obviously. So you are in a different position than the two Justices. Having said that...
THE COURT: And then....
MS. SHEMESH: ...they're all here, so I'm certainly content to, to call them.
THE COURT: Well, first off, I just wanted to get the roadmap and I...
MS. SHEMESH: Yes.
THE COURT: ...appreciate that. Secondly, are you both in agreement that it be – he's been in custody since August 17.
MS. SHEMESH: Yes.
MR. GUERTIN: Yes.
THE COURT: Okay.
MS. SHEMESH: Yes.
THE COURT: Why don't I start reading. Mr. Guertin can make his inquires...
MS. SHEMESH: Yes.
THE COURT: ...and Madam Clerk, I'll do my best to, to be found in my chambers.
MS. SHEMESH: Thank you very much, Your Honour.
CLERK REGISTRAR: All rise, please.
R E C E S S
U P O N R E S U M I N G:
CLERK REGISTRAR: Good morning again, Your Honour. This court resumes, please be seated.
THE COURT: Okay.
MR. GUERTIN: Good morning, Your Honour. Thank you for that brief indulgence.
THE COURT: No, I needed it too. I still haven't finished reading through the initial hearing, but I've got a flavour of it and certainly seeing Justice De Sa's upholding of it. Let me start off with two quick questions. Are we in agreement that R. v. St-Cloud applies to this hearing as well.
MR. GUERTIN: In a, in a sense, Your Honour. I actually – because this is unique as it's coming by way of a, a 523(2)(a) review, it's a bit of a unique circumstance, so my friend and I are in agreement that it is her onus to show-cause as to why the previous detention should be vacated. And I ended up pulling a case from Justice Then in the Superior Court of Justice who reviews the s. 523 in the course of a bail review, but he was reviewing a 523 order and essentially, and I can provide Your Honour with the case, but the summary is that, "The onus is on the applicant to demonstrate a substantial or material change in circumstances as it relates to the grounds at the bail hearing." So it's, it's similar to a review in terms of material change in circumstances, but we are not addressing, we're not, I don't think my friend is able to attack the reasons for review to suggest it was an error in law, it's not that aspect of the bail review, that would be....
THE COURT: Has been upheld by, by Justice De Sa. My concern is, is that substantial material change in circumstances, if Justice De Sa's correct that the only reverse-onus count has now been withdrawn.
MR. GUERTIN: So I agree the only reverse-onus count has been withdrawn. And I wouldn't be able to argue that that is not a change in circumstance. Now, is it enough to demonstrate a substantial and material change in circumstance as it relates to grounds of detention? I think that is the issue. I don't think in reading Justice De Sa's decision and in reading the bail hearing and the bail decision that the onus played an overwhelming role in the grounds for detention. The initial Justice, which was then upheld by Justice De Sa, finds a significant tertiary ground concerns and some secondary ground concerns. The fact that there's no longer a reverse-onus offence before the court I don't think relates to a substantial or material change in circumstances as it relates to the grounds of the bail hearing. I'm putting the cart before the horse, that's....
THE COURT: I can put cart before the horse on a couple of other things too.
MR. GUERTIN: That, that's my argument at the end of the day. I know my friend is also presenting an increased plan, so three sureties, with a bit of a change in the supervision. So that is another change that Your Honour is going to have to consider. Yeah, so that's, that's, in my respectful submission, how this hearing should be guided. Does Your Honour want a copy of the decision I referred to from Justice Then?
THE COURT: Let's see if we get there. I, I...
MR. GUERTIN: Yeah.
THE COURT: ...don't doubt your summary of it. Second question is, and I would never ask this mid-trial, other than we now have the remarkably singular process that's been engaged now, let's assume for the moment the worst case scenario for Mr. Squires that he gets convicted on everything. What's the Crown's position?
MR. GUERTIN: It'll be a penitentiary sentence.
THE COURT: How far into the penitentiary?
MR. GUERTIN: That is something that on my feet I would not be able to give a, a firm position, given the fact that it would be a conviction for a loaded restricted handgun in a residence where there's some evidence of the presence of children at times and that there is a substantial amount of ammunition also found. It would be a penitentiary sentence and I would expect to be asking for more than three years, but again I need to actually sit down and review that because I, I know that there's some judges who, in recent cases, have taken a different view of the law than what I would submit is appropriate in terms of sentencing on these type of offences.
THE COURT: Which leads me to what is his current, what is the value of his current pre-sentence custody?
MR. GUERTIN: He's at I believe nine, approximately nine months of real time.
THE COURT: I have, as of today, the equivalent of one year and three months and change? Grossed up.
MS. SHEMESH: I, I had, I had him at 10 months and on a 1.5....
THE COURT: That's why I'm asking to get everybody to double-check my math.
MS. SHEMESH: Sorry. Yeah, I had him at 10 months, at 1.5 is 15 months, by August he will have done about 18 months at 1.5 and that's without additional enhanced credit, that's just on straight 1.5.
THE COURT: Which is why I was never going to be an accountant. So as of today you're saying 10 months?
MS. SHEMESH: Yeah, I, I've called it 10 months and 10 months straight time is, at 1.5, 15 months.
THE COURT: Equals 15.
MR. GUERTIN: Actually using a day calculator app on the computer, just for fulsome, for fulsomeness of the record it's 267 days or 8 months and 24 days of real time.
THE COURT: All right, in that case I'm back on where my...
MS. SHEMESH: Nine months.
THE COURT: ...math is, I've got grossed up value then of 1 year, 3 months and change, which would be 15 months, which I think is your figure. And you're not that far off then, in fact I think you're a little bit higher by a day or two.
MR. GUERTIN: I have at one-and-a-half-times credit, 401 days.
THE COURT: I have....
MR. GUERTIN: I mean I think at the end of the day, the end of the day nothing turns on this math. I appreciate that it is a consideration for Your Honour in terms of the amount of, of...
THE COURT: Mm-hmm.
MR. GUERTIN: ...pre-trial credit, but it's 8 months and 24 real days from August 17th the day he goes in until today's date.
THE COURT: And in terms of as of August 16th, without taking into account the possibility of a reserved judgment because there's Charter issues and everything else, I'd be shocked if it wasn't a reserve, I have up to, a grossed up equivalent then of one year, eight months. Let's see if you're both on the same page there.
MR. GUERTIN: Again, just using the calculator on the computer, 365 days or 1 year at one-and-a-half times credit 1 year 6 months, 18 months total.
THE COURT: I, I have one year, eight months, but either of those numbers, would that, would those numbers not then be subject to a Duncan credit?
MR. GUERTIN: Boy, that....
THE COURT: Well, I'm, I'm hearing yes from Ms. Shemesh....
MR. GUERTIN: A Duncan application, Your Honour.
THE COURT: But there'd be an application which would then take us past August 16th, past a reserved judgment. And that's, that's my real concern here.
MR. GUERTIN: Mm-hmm.
THE COURT: Is – that's why I, I wouldn't mind a little bit more guidance as to what the Crown position's going to be, because if ultimately by August he's in a time-served situation and in the worst case scenario without committing myself and not having heard submissions and all the other things that I have to put on the record, he's not in a time-served position today. So I think I have to look though where he's going to be in August as much as I look at where he is today.
MR. GUERTIN: Yeah. And, and from the Crown's perspective my submission would be that he's not in a time-served position at, at that time. My friend may try to convince Your Honour otherwise.
THE COURT: I'm just thinking with a Duncan credit he's going to be potentially, if my calculation is correct, at one year, eight months. He's going to potentially be just over the two year mark equivalent of pre-sentence custody and the question is how realistic are you to get from two to three and whether the community's safer with two and maximum probation or not. And, again, I'm really uncomfortable talking about these sorts of numbers when we haven't got to the evidentiary stage of the trial, but...
MR. GUERTIN: Yes.
THE COURT: ...I think that's the, the reality of bringing the application at this point.
MR. GUERTIN: Oh, I know, I agree, I think it's entirely appropriate for Your Honour to consider that. I, I don't think we can disconnect that from this type of consideration. But I, I anticipate my position will be three or higher.
THE COURT: For a first time offender and – all right.
MR. GUERTIN: And, again, I know there has been some changes in the law, in my recent research on another case that Your Honour – on another case, I, I believe I would be able to justify somewhere in that range, but my friend's going to have other cases that show to show to Your Honour as well. So we're doing this in the abstract, I, I don't have the cases to put before you...
THE COURT: No, no.
MR. GUERTIN: ...now.
THE COURT: But I, I agree with you, that I think the ultimate sentence is a very real factor in what I'm dealing with today. And I would also say I think my starting point has to be the worst case scenario in terms of convictions for the defendant in looking at what the numbers would be at that point in time. The other concern I have is that if I'm correct in anticipating a reserved judgment, given my schedule, I suspect that a date would not be found until late October, early November as I would be unavailable for most of September and would not be working on it. So I have to take that into account as well to, I know that Ms. Shemesh is going to agree with that sentiment, but would the Crown agree, I also have to look at that potential as well.
MR. GUERTIN: Well, yes, Your Honour, I don't, I don't think Your Honour can ignore that aspect of it because that is a circumstance that is, is different at this stage in time than it was at the initial bail hearing. I don't think it's, it's a driving factor in this type of application though, but I don't, I don't dispute with Your Honour's raising that and, and considering that. No, I wouldn't, I wouldn't submit otherwise.
THE COURT: All right. All right, so I think I've put enough carts in front of the horse at this stage of the game. I've got an overview of, of the timeframe considerations. But I think the ball is now back in Ms. Shemesh's court, unless there's something else.
MR. GUERTIN: No, it is, and but just in terms of sort of the factual foundation for, Your Honour has the ITO which characterizes what the Crown submits is the evidence against Mr. Squires in relation to the offences that he's been charged. So I'm not going to go through a summary of the evidence again, I know Your Honour's well aware of it. So that's obviously going to be an important consideration in this review as well.
THE COURT: Though ultimately there's no drug charges, we're just dealing with the firearm...
MR. GUERTIN: Correct.
THE COURT: ...charges.
MR. GUERTIN: Correct. And we are no longer dealing with the P for P ammunition, but the 933 rounds of ammunition that are found are still a relevant factor.
THE COURT: Not just relevant, but it is an extremely aggravating factor.
MR. GUERTIN: Yeah. Thank you, Your Honour.
MS. SHEMESH: My turn. The only other issue and I know the law of parity doesn't typically or traditionally work on bail hearings, but I think it does form and should form part of my submissions, is that Mr. Bonnie and Mr. Powell have both been granted bail. And I think it's just a factor for Your Honour to consider, as I say, I know the law of parity doesn't necessarily apply but I, I certainly think that we should be able to talk about it, that....
THE COURT: But were they granted bail in the sense of firearm charges?
MS. SHEMESH: Yes, Mr. Bonnie was released, we have a copy of his recognizance of bail, he was released at first instance and there were two firearms associated to Mr. Bonnie, as well as heroin and cocaine charges and he was released, also no record. And Mr. Powell was, was released as well, so both – Mr. Bonnie being the target of course of, of this investigation. So he, he was released, it's a strict house arrest with three or two named sureties and it's a high, it's a high amount in the amount of $110,000, but nevertheless he was released. I have a copy of that bail.
THE COURT: Bracelet or not?
MS. SHEMESH: No bracelet. No bracelet and no reporting.
THE COURT: Thank you.
MS. SHEMESH: So I'm proposing the same bail for Mr. Squires, except I'm also obviously including a condition that he report to the local detachment. As I understand from Mr. Guertin and from the family there is literally a police station across the street, they can see it from their home as I understand it and so makes it pretty simplistic for Mr. Squires to be able to report once a week or every Friday to the local detachment until the next batch of dates, which is August. I propose to call two sureties, I'm, I'm seeking a plan or proposing a plan where there's three sureties, two of which are residential sureties, the other is not a residential surety. I understand from Mr. Guertin that he would like to hear from the two residential sureties, the third surety is here, she is in the courtroom, I don't know if Your Honour, again, I don't think she adds very much to the residential portion, she certainly does when it comes to the financial portion of things. So I don't know if Your Honour wishes for her to be excluded at this juncture on the potential that she may be called, but I wasn't going to endeavour to call her. So....
THE COURT: Well, just to be on the safe side.
MS. SHEMESH: All right.
THE COURT: I'm not sure what's being passed up to you, but....
MS. SHEMESH: Oh yes, so she, the third surety, the, the individual who is not a residential surety, Ms. Michelle Poole, she provided an affidavit in the Superior Court, I can pass up that affidavit so at least Your Honour knows who she is and some of the details associated with her.
THE COURT: All right, and again, is that Ms. Poole as the back of the...
MS. SHEMESH: Yes.
THE COURT: ...courtroom?
MS. SHEMESH: Yes.
THE COURT: Again, just to make sure that things don't get even more complicated than they have now become, I'm just going to say something to you, that this in this matter you are to leave the courtroom and remain outside during proceedings until you're called in to testify, if you are. You are directed not to discuss your evidence with any other potential witness until the completion of the, well in this case the bail hearing in this matter. And if there are any other potential witnesses for either Crown or defence that the same exclusion order should apply to them and the obligation to tell them of my order.
MS. SHEMESH: Absolutely.
THE COURT: So, Ms. Poole, if you just wait out in the hallway. In fact, if you want you can probably beat the line up at Tim Horton's downstairs, we'll be breaking for coffee soon, all right.
MS. POOLE: Great, thank you.
MS. SHEMESH: So Ms. Colleen Squires is in the body of the court, I propose to call her first. I've spoken with my friend, I'm hoping that I can lead in certain areas that are non-contentious. And hopefully if, if there are any issues my friend will certainly jump up and tell me I've gone too far.
THE COURT: I say as long as the Crown's content lead up until the, the jump up part.
MS. SHEMESH: Yes.
MR. GUERTIN: I have no issue with leading on the proposed plan subject to what my friend has to say.
MS. SHEMESH: Absolutely.
THE COURT: Ma'am, you could just come up. Let's start with you, see how far we get till I, I break for the morning recess.
MS. SHEMESH: Absolutely.
Testimony of Colleen Squires
COLLEEN SQUIRES: SWORN
THE COURT: And I'm assuming the other two people in the courtroom are not potential witnesses on this.
MS. SHEMESH: No. No, thank you very much, Your Honour.
THE COURT: Just have a seat. And would you like a glass of water?
A. Sure.
THE COURT: Madam Clerk.
A. Thank you.
Examination in-Chief by Ms. Shemesh
Q. All right, Ms. Squires, I understand you are Mr. Stevie Squire's mother?
A. That's correct.
Q. You're 61.
A. Yes.
Q. Sixty-one years old.
A. Yes.
Q. You're a Canadian citizen.
A. Yes.
Q. You do not have, as, as I understand it, you're not facing any outstanding charges right now.
A. No.
Q. And you are not acting as a surety for anyone else.
A. No.
Q. Okay. Now, you have testified previously that you don't have a criminal record...
A. Mm-hmm.
Q. ...but indeed in 2005...
A. Yeah.
Q. ...you appear to have an entry for impaired driving.
A. Yes.
Q. Okay. Do – firstly, do you remember being charged with that offence?
A. Yes.
Q. Okay. And do you remember how that offence ended or how that charge ended or concluded?
A. Yeah, I had to pay a $600 fine.
Q. Okay. And did you have a lawyer when you were going through those charges?
A. No.
Q. Okay. And that entry, as I understand it from what's been brought to our attention, is in 2005.
A. Mm-hmm.
Q. Is that right?
A. Yes.
Q. Okay. And in 2005 you were charged with drinking and driving you and said you paid a fine...
A. That's correct.
Q. ...do you remember how much the fine was?
A. Six hundred dollars.
Q. Okay. And was there any other consequences to that offence?
A. I had – I wasn't allowed to drive for one year.
Q. Okay. And when you were – first of all, where did that happened? Was it in Oshawa? In Toronto? Do you remember?
A. In Scarborough.
Q. In Scarborough. So it was in a Scarborough courthouse?
A. No, it was – actually the courthouse was, I believe it was 1000 Finch.
Q. Okay. And so when you went in 2005 to 1000 Finch did you walk into a courtroom much like this and say, "I plead guilty to that offence"?
A. Something similar, yeah.
Q. Okay. Now, what did you understand that meant? After that day in 2005 you paid the fine, what did you understand that to mean?
A. That just meant that obviously I was – because I was charged with that offence, that I had to pay a fine and that was it.
Q. Okay. Did you, did you understand at that point that you then now have a criminal record...
A. No.
Q. ...that stays with you?
A. No, I didn't...
Q. Okay.
A. ...realize that.
Q. Okay.
A. At the time.
Q. And you never – did you do anything, like, try to bring a pardon or anything like that?
A. No.
Q. Okay. And so prior to today, did you believe you didn't have a criminal record?
A. That's correct.
Q. Okay. Do you understand – I showed it to you today...
A. Yes.
Q. ...do you understand that going forward that stays on your record and has been on your record since 2005.
A. I do now.
Q. Okay. So since 2005 did you ever drive again?
A. No.
Q. Okay. And since 2005 have you ever been arrested again?
A. No.
Q. All right. Now, I understand you've testified before that you have been a surety before.
A. That is correct.
Q. You were a surety for another one of your children.
A. That's correct.
Q. Okay. And was it a successful plan? In other words, did you have any trouble?
A. With her? Or like...
Q. While you were acting...
A. ...with the whole – yeah.
Q. ...as a surety?
A. Yes, I had to – it got to the point where she, like, wasn't listening to me and she had a curfew and so just by, like, it led up to her attitude, she was coming in on time, it wasn't a problem. And then the first night that she didn't show up on time I phoned the police station and I told them I wanted to pull her, her bail and they said I would have to go down in the morning to the court and see a JP and do it that way.
Q. And did you do that?
A. Yes, I did.
Q. Okay. And since that occasion, on that occasion, had you ever acted as a surety again?
A. No.
Q. Never been a surety....
A. Oh, yeah, I have been surety since.
Q. Okay.
A. For other people, yes.
Q. And never had any problems or have had other problems?
A. Never had any problems.
Q. So that was the only problem you had ever had?
A. That's correct.
Q. Okay. Now, I understand the plan that is being proposed is that your son would live with you at 120 Stargell?
A. That's correct.
Q. Okay. And currently your daughter Stephanie Squires and her children live with you as well.
A. That's correct.
Q. Okay. She's on maternity leave?
A. That's correct.
Q. And is on maternity leave until November.
A. Correct.
Q. Okay, so the two of you are home all the time.
A. That's correct.
Q. Okay. She drives, you do not.
A. That's correct.
Q. All right. And Mr. Squires, your son, is not currently employed.
A. That's correct.
Q. And prior to his incarceration he had just stopped working at a construction company.
A. That's correct.
Q. All right. So he would be at home with you and Stephanie.
A. That's correct.
Q. All right. Any difficulty obviously with you bringing him to court come August?
A. Not a problem.
Q. All right. I understand you've been appearing for many of his appearances?
A. I've been her for all of them.
Q. Okay. And his sister, Stephanie, equally has been here with her children in tow.
A. That's correct.
Q. All right. Is there space and room for him to live at the home seeing as though she's moved in with her children?
A. Yes, 'cause – yes.
Q. All right. And so as I understand it Stephanie lives in a contained basement apartment in that house?
A. That's correct.
Q. With her family.
A. Yes.
Q. And you live upstairs and have other bedrooms for...
A. That's correct.
Q. ...Mr. Squires to live in.
A. Yeah.
Q. All right. And you have no weapons in your home right now?
A. No, we do not.
Q. Okay. And no one in the home, including your daughter, has an FAC or a licence to possess a firearm.
A. That's correct.
Q. As far as being able to monitor Mr. Squires, it would be – what we're, what we're proposing is that he be under house arrest, do you understand that?
A. Yes, I do.
Q. Okay, so that he would be allowed out in the company of you or Stephanie or Michelle.
A. That's correct, yeah, I, I understand that.
Q. And that he cannot have any contact with Mr. Bonnie or Mr. Powell.
A. Yes.
Q. You know both those gentlemen...
A. Yes, I do.
Q. ...to see them, right?
A. Yes.
Q. Okay. Now, I suggested that this police station is – you can see it from your address, am I right about that?
A. Yeah, if you looked at the top of my street you can see it, it's like, it's, it's right there.
Q. Okay. Any difficulty with ensuring that your son report there each and every Friday?
A. Not a problem. I mean, he doesn't – we don't even have to drive there, we can walk there, it's like right there.
Q. Okay. And as far as....
THE COURT: I'm going – on that particular point is have you determined whether a reporting condition can be arranged with York Regional Police or my understanding is they would have to attend only at 77 Centre Street here in Oshawa?
MS. SHEMESH: So I haven't looked into that, I know my friend brought that to my attention as well, I just assumed probably incorrectly that one could simply walk into a station with their bail, but I'm, I'm probably wrong. And I....
THE COURT: That would be my expectation as well, but....
MS. SHEMESH: And I'm certainly prepared to make the telephone calls on the break and see if they would be amenable to that, to that condition.
THE COURT: I'm not even sure how we would arrange for the paperwork to get there, but – not telephone calls to York Regional Police, it's confirming whether bail and parole unit in Oshawa would be agreeable, because they would lose the ability to monitor. There would also be the issue of, of spot checks on the residence at times as well, but I don't know about York Regional Police, Durham Regional Police are rather noted for doing.
MS. SHEMESH: I see.
A. I would just....
MS. SHEMESH: Q. In, in addition to any reporting condition.
A. Yeah. I would just like to add to that, that if it comes down to where we have to or Stevie has to report here, my daughter drives so he was going to – obviously the other surety and so there's my other daughter so it's not a problem.
Q. All right, so you're saying if there is a condition and His Honour wishes for him to report, you're prepared to report at any location.
A. That's correct.
Q. All right. And you'd make that obviously happen between...
A. Yeah.
Q. ...the family members.
A. Mm-hmm.
Q. All right. Now, as far as monies are concerned, you are prepared to secure a sum of monies.
A. Mm-hmm.
Q. I know you don't have a lot, but you have enough to put up that it means something to you...
A. Mm-hmm.
Q. ...right?
A. Yes.
Q. And that's coming from a savings account?
A. Yeah, I have $2,000 that I can, I can put there, not a problem.
Q. Okay. And is that a lot of money to you?
A. Yes.
Q. Okay. You're not working right now.
A. That's correct.
Q. Are you on any type of disability or are you receiving any income from the government?
A. Yes, I'm on Ontario Works.
Q. Okay. And had you ever worked before?
A. Oh yes.
Q. Okay. What did you do before?
A. The last jot that I had I was working at Able Atlantic Taxi and dispatching, but what happened is, the only reason why I left there is because they, like, when you call in now, the calls are redirected to Pakistan.
Q. Oh.
A. Yeah, so obviously a lot of jobs got eliminated, right.
Q. I see.
A. Yeah.
Q. Okay. And so you've been out of work for a period of time?
A. Yeah.
Q. All right. And so the money that you are referring to is money that you saved while working?
A. Yeah, yeah.
Q. Okay.
A. Well – yeah.
Q. Okay. And as far as the conditions go and having Mr. Squires live at your address, any difficulty with him listening to you or being respectful with you? Have you had any difficulties with him at all?
A. He's very respectful.
Q. Okay. Do you believe that he will listen to you?
A. He has no choice.
Q. Okay. And when you say...
A. But he will.
Q. ...and when you say he, he has no choice, you obviously understand your obligations as a surety...
A. That's right.
Q. ...you've acted as a surety before.
A. Yes, yeah.
Q. And you understand sort of what's at stake here...
A. Yes, I do.
Q. ...that the release here is quite for a short period of time, it's between now and potentially August or later, it could be till November or October. But it's a short period of time and you're prepared to, to monitor him throughout the days?
A. Twenty-four, seven.
Q. Okay. Is there any other condition that you think you may require to assist you in supervising him?
A. No.
MS. SHEMESH: All right. Those are all the questions that I have for you, ma'am, just, just wait there, the Crown's going to have some questions for you.
A. No problem.
THE COURT: If you're going to be more than five minutes I'll give the staff their break. And I don't want you to feel under any time constraints, that's why I say it the way I'm, I'm saying it.
MR. GUERTIN: I, I, I think I can be quite brief, I don't know about five minutes though.
THE COURT: Why don't we take the, the break and that way...
MR. GUERTIN: Sure.
THE COURT: ...you don't have the time constraints and..
MR. GUERTIN: Sure.
THE COURT: ...you can carry on.
MR. GUERTIN: Sure.
THE COURT: And let's take 20 minutes now, Madam Clerk, and give me a phone call once everybody's back in here.
CLERK REGISTRAR: All rise, please.
R E C E S S
U P O N R E S U M I N G:
CLERK REGISTRAR: Good morning again, Your Honour. This court resumes, please be seated.
THE COURT: All right, ma'am, if you come back up to the witness stand. Whenever you're ready.
MR. GUERTIN: Thank you.
Cross-Examination by Mr. Guertin
Q. Good morning, Ms. Squires, I don't intend to have too many questions for you, I know you testified in one of these proceedings before, but just a few areas I'm going to ask you about, okay.
A. Okay.
Q. So I understand that Mr. Squires is your son, correct?
A. That's correct.
Q. And that the two of you have a very close relationship?
A. Yes.
Q. And very close at the time of these alleged offences in August of 2018?
A. Yes.
Q. And he was living with you at that time, correct?
A. Correct.
Q. And that was at 120 Stargell in Markham.
A. Yes.
Q. And sometimes there were some small children that would be at the house, correct?
A. Sometimes, yes.
Q. I believe Mr. Squires has a daughter?
A. A son.
Q. A son, sorry, a son that would come to the house.
A. That's correct.
Q. And there would sometimes be some other children at the house, correct?
A. Yes.
Q. Okay. And previously you had lived on Barrington Avenue?
A. Yes.
Q. And Mr. Squires lived on Barrington Avenue with you as well.
A. That's right.
Q. So the two of you moved to Stargell together.
A. That's correct.
Q. And Mr. Squires had his own room in the house, correct?
A. Yes.
Q. That was the upstairs room.
A. That's right.
Q. And you were living in the basement.
A. At that time, yes.
Q. Okay. And as I understand it from the earlier bail proceedings, he was renting off you? Mr. Squires was contributing to the rent by paying you money?
A. Yeah, sometimes, yeah.
Q. Sometimes? Okay. So he's just help out here and there?
A. Yeah, when he was working, yes.
Q. But he, he stopped working in August of 2017, correct?
A. Yes.
Q. That's when he stopped the construction job.
A. Yes.
Q. And from that point in August of 2017 until August 2018 he was out of work, fair?
A. Yes.
Q. And he's someone that you talk to very often or you, at that time you would talk to very often while he was out of custody?
A. Yes.
Q. Someone you had a pretty open relationship with, is that fair?
A. Yes.
Q. He would share information with you, correct? About his life, that sort of thing, what's going on with him?
A. Yes. But he's, I don't know how to say, he's a male, so you know what I'm saying, like, yes he....
Q. He doesn't share everything with you.
A. Sorry?
Q. He does not share everything with you, right?
A. No, he's, he's a grown man, so I mean there's certain things – men are, men are men, right?
Q. No, I understand. And at that time while he was living with you, he was helping to support, take care of his own son, right?
A. That's correct.
Q. Like financially as well, right?
A. Yes.
Q. And he was driving his own car, correct?
A. Yes.
Q. That was the Infinity motor vehicle?
A. Yes.
Q. You understand that that is a relatively expensive car, starting around $35,000, right?
A. Yes.
Q. And he...
A. I, I don't know that...
Q. ...hadn't been working....
A. ...but yeah.
THE COURT: Sorry, you both talked at the same time...
A. Sorry.
THE COURT: ...and – you may not have heard Ms. Squires' very soft voice. So one, I'm just going to ask you to project your voice.
A. Okay.
THE COURT: Both – Ms. Shemesh needs to hear you as well, right.
A. Okay.
THE COURT: But I, I had trouble hearing what you just said while the Crown moved on to his next question. What was it you said?
A. Oh, 'cause he said the vehicle started, it's like 35,000 or something, I didn't know that, I don't know, like...
THE COURT: Okay.
A. ...the price of vehicles that way, and that, that's....
MR. GUERTIN: Q. Okay.
A. ...what I was...
Q. You don't...
A. ...going to say.
Q. ...you don't know what the price of the vehicle was, fair?
A. That's correct.
Q. You understand it's a, it's a nice to higher end motor vehicle, correct?
A. Okay.
Q. Do you, do you agree with that? Just from looking at it, from being in it, that sort of thing.
A. As, as a female, a car's a car to me, so.
Q. Did you ever ask him where his money was coming from in order to support his child and to drive that type of car?
A. No.
Q. Didn't bother making any inquiries, "How are you getting this money?"
A. No.
Q. Did that not cause you any concern that he was able to support this lifestyle without a job for a year?
A. No, it didn't – it wasn't, it wasn't my position to ask him where his money come from. Like I said, he's grown.
Q. Okay.
A. You know. So....
Q. What, what about the money that he was giving you to help support yourself and the, the rent and stuff around the house, did you ever ask where that was coming from?
A. No, and, and as far as myself go, I had income so I wasn't concerned – like his concern wasn't as far as, like, looking after me financially in, in that retrospect, you know.
Q. You understand that if you're – if His Honour decides to release Mr. Squires to you as a surety...
A. Yes.
Q. ...you understand your obligations, right? You've gone through this process...
A. Yes.
Q. ...before. You understand the importance of asking those type of questions, right?
A. Very much so.
Q. Of finding out what's going on with Mr. Squires...
A. Yes.
Q. ...correct? If he has money finding out where that's coming from...
A. That's correct.
Q. ...right? If he's talking to people on the phone, finding out who he's talking to.
A. Yeah.
Q. And you say that he's a male, he doesn't share this type of information with you.
A. If – like, when I, when I say that to you I'm just talking, like, in, in respect to, like, like females or, you know, like, you know, like – I don't know how really to explain which, in which terms I mean it. It's, like, yes we're very close and we talk about a lot of things and, and, like, watch TV and have dinner together, that – you know what I mean that...
Q. Yeah.
A. ...those type of things, but, like, yes there's things that are personal that he speaks to me about, but, like, I don't know which, which, how and which term to say it, like, I don't....
Q. Okay, no, that's – I – that's fine.
A. Like guy things kinda, you know what I mean, like, I don't know.
Q. In August of 2018, you certainly were not aware of any firearm being in your home.
A. My God, no.
Q. Okay, you would not have allowed that....
A. Not at all.
Q. And you understand the room that it was found in, right?
A. Yes, I do.
Q. And that was in Mr. Squires' bedroom.
A. That's correct.
Q. Ma'am, I just have a couple further questions for you.
A. Mm-hmm.
Q. So you testified on Mr. Squires' first bail hearing, do you recall that?
A. Yeah.
Q. Back in 2018.
A. Yes.
Q. You swore an oath to tell the truth at that time, correct?
A. Yes.
Q. You understood the importance of being honest with the court.
A. Yes.
Q. And that everything you said in court had to be the truth, correct?
A. That's correct.
Q. You were asked a question – oh, sorry, and then you also swore an affidavit down the road for the bail review, the second proceeding, correct?
A. Yes.
Q. Again, you understood the importance of telling the truth in that document?
A. That's correct.
Q. That you, when you signed it you were swearing that everything in that document was the truth...
A. That's...
Q. ...correct?
A. ...correct, yes.
Q. Okay. You were asked at the bail hearing by Mr. Squires' lawyer at the time, "Were you – you were never convicted of any crimes whatsoever." Do you recall being asked that question?
A. Yes.
Q. And you said, "No."
A. That's correct.
Q. And as, as it was brought to your attention today in 2005 you were convicted of a crime, right?
A. That's correct.
Q. You understand that drinking and driving is a criminal offence, correct?
A. Yes, but I never – because, like, I paid a fine...
Q. Yeah.
A. ...I, I didn't know that it was, it would go on my record.
Q. Okay.
A. So, like, when, when you say to me, "Were you ever convicted of a crime?" To me I wasn't.
Q. Okay.
A. Because, like, okay fine I, I get where you're coming from, but I didn't think it was something that would go onto my record.
Q. Okay, no, and I, I understand....
A. So I, so I didn't feel that I was convicted of a crime in that context.
Q. Okay. So I'm going to try to break these down. You didn't think that it would go onto your record.
A. Yeah, like, I, I wouldn't have a record, so I wasn't, I wasn't convicted of a crime.
Q. Okay.
A. Like, because – it's like, you know, if you have a parking ticket, right...
Q. Yeah.
A. ...then you pay a fine.
Q. Yeah, so if you have a parking ticket or a speeding ticket and you...
A. Yeah.
Q. ...you – so some speeding tickets you have to go to court, you understand that, right?
A. Yeah.
Q. And if you get a speeding ticket and you go to court, sometimes you might be pleading guilty to a Justice of the Peace, correct?
A. I guess.
Q. And that ends up coming with a sentence, you understand that, right?
A. Okay.
Q. And that sentence is often a fine that you have to pay.
A. Okay.
Q. But the, the Justice, the Justice of the Peace they tell you you're convicted of that offence by pleading guilty, do you understand that?
A. Yeah, now I do.
Q. Okay. So when you were asked if you were – when it was put to you you were never convicted of any crimes whatsoever, you believed that pleading guilty to a criminal offence was not being convicted of a crime.
A. Yes, because I paid the fine, so I didn't think it was something that, like, that would, that would – you know what – like, because I paid the fine, like, I'm trying to use the scenario, like, like with a parking ticket, right. You get a parking ticket and, and you pay whatever amount that they say. Right?
Q. Oh, yeah.
A. So I don't feel that, like, maybe I'm – obviously I'm wrong then because I, I didn't think that was, like, a conviction.
Q. Okay. You, you remember standing in front of a judge like His Honour...
A. Yes.
Q. ...right? And entering a guilty plea, going through that...
A. That's...
Q. ...process.
A. ...correct, yes.
Q. And being told what your sentence was, $600 fine, right?
A. That's right.
Q. And a one year driving prohibition.
A. Yeah.
Q. Okay.
A. Yeah.
Q. And that driving prohibition meant you couldn't drive for a year, correct?
A. That's correct.
Q. And in fact, you haven't since renewed your licence since that...
A. That's right.
Q. ...conviction, correct?
A. Mm-hmm.
Q. So your Ministry of Transportation information would be very outdated, we'd be going back to before 2005, is that fair?
A. Correct.
Q. Okay. You haven't taken any steps since then to, to get your licence...
A. No.
MR. GUERTIN: ...back. Okay. Thank you, ma'am, I have no further questions for you.
A. Thank you.
THE COURT: Re-examination.
MS. SHEMESH: Thank you.
THE COURT: Thank you very much.
A. Do I take this?
THE COURT: You can keep that, 'cause I think the next witness will require that Ms. Squires be outside the courtroom?
MS. SHEMESH: Yes.
MR. GUERTIN: Yes.
THE COURT: Can you remain outside, Ms. Squires, and we'll page you back in once it's okay to do so.
Testimony of Stephanie Squires
MR. GUERTIN: Your Honour, in relation to the next witness, Ms. Stephanie Squires, I've had a conversation with my friend. I think what we propose to do is I will just ask her a few questions in cross-examination, I won't be long, I just want to explore a bit the change in her personal plan since the initial bail hearing.
THE COURT: That's fine.
MR. GUERTIN: So that'll expedite matters.
THE COURT: If you'd page in Stephanie – I'm sorry.
MS. SHEMESH: Stephanie Squires.
...STEPHANIE SQUIRES WAS PAGED
THE COURT: Yes, ma'am, all the way up here, please.
STEPHANIE SQUIRES: SWORN
CLERK REGISTRAR: And would you...
THE COURT: And....
CLERK REGISTRAR: ...like some water?
THE COURT: Yeah.
A. Oh no, it's okay, thank you. I just have a little bit of a cold, but I'm okay.
THE COURT: Do you want a box of Kleenex over there?
A. Oh, no, that's okay, I'm fine. Thank you.
THE COURT: Whenever you're ready.
MR. GUERTIN: Thank you, Your Honour.
Cross-Examination by Mr. Guertin
Q. Good morning, Ms. Squires, I just have a few questions for you.
A. Yeah.
Q. You testified, you recall testifying at the initial bail hearing, correct?
A. Yes.
Q. For Mr. Squires, who's your brother.
A. Yeah.
Q. At that time you were living – you had moved from Lumsden, right?
A. Yes, I have been out of Lumsden for maybe two years prior to that, yeah.
Q. Okay. So you hadn't been living at Lumsden in August of 2018, right?
A. No.
Q. So your car, Mr. Squires' car would never have ever been at Lumsden, is that fair? During that August of 2018?
A. Correct, yeah.
Q. Okay. You have since moved into Stargell with your mother?
A. Correct.
Q. And when did you move in there?
A. November.
Q. November of this year.
A. Of 2018.
Q. Sorry, yeah...
A. Yeah.
Q. ...2018. So since the first bail hearing. You moved after the...
A. After...
Q. ...first....
A. ...the bail hearing, correct.
Q. And as I understand it you have children?
A. Yes, I do, I have three children.
Q. Okay, once is relatively newborn?
A. Correct.
Q. Okay. And so you're on maternity leave right now.
A. Yes, until November 1st, 2019.
Q. Okay, and then you're going to be going back to work on November 1st?
A. Yes, I will.
Q. Okay, and where, where do you work?
A. Telus Mobility.
Q. Okay. So as it stands now until November 1st you will be at the home.
A. Correct.
Q. Taking care of your young child, right?
A. Most definitely.
Q. What about your other children?
A. They're in school.
Q. They're in school? Okay...
A. Yeah.
Q. ...so they go Monday to Friday to school.
A. Exactly, yeah.
Q. Do you have any other obligations that take you outside of the house aside from day to day grocery shopping, things for the kids?
A. No.
Q. No job, no volunteering, nothing like that.
A. No, I'm on maternity leave, right, so...
Q. Yeah.
A. ...I can't....
Q. No, I understand. And your mom is at home with you most of the time as well?
A. Yeah.
Q. And you are – you drive?
A. Yes, I do.
Q. And you have a motor vehicle?
A. Yes, I do.
Q. Okay. What type of motor vehicle do you have?
A. I have a Hyundai Sonata 2015.
Q. Okay. Now, in terms of your assets, I understand you're pledging $2,000 today?
A. Yes.
Q. Okay. I take it that being on maternity leave, you're not making as much money as you would normally, correct?
A. Correct.
Q. You have a lot of responsibilities with your children, fair?
A. Yes.
Q. The $2,000, where is that coming from?
A. My savings.
Q. Okay. How much do you have in savings?
A. About 5,000 right now.
Q. Okay. So you have 5,000 in savings. In terms of your monthly expenses, do you have any sense of what that is? Like how much do you have to pay in total for whether it's rent, childcare, day to day living in a month?
A. Maybe a month I would say my expenses could be $1,600.
Q. Okay. And in terms of the money you're receiving from any form of social assistance or maternity leave, do you know what that total is?
A. Yeah, it's about $900 right now.
Q. Okay. So you're going to have, in order to stay afloat, you have to dip in your savings...
A. Most...
Q. ...throughout maternity.
A. ...definitely.
Q. Fair? And I take it your savings have been diminishing as the maternity leave has been going on.
A. Yeah.
Q. Okay. So $2,000 would be a substantial amount of money for you.
A. Most definitely, I need every penny right now, right, so....
Q. And you're not pledging the full amount because you need some of your money for your children, is that...
A. Correct.
Q. ...fair?
A. I, I can't be left with nothing, right, so....
Q. Yeah, no, I understand. Just a moment's indulgence please, Your Honour. You have a close relationship with your brother?
A. Yes, I do.
Q. With Stevie Squires.
A. Yeah.
Q. Do your children know him?
A. Oh yes, most definitely.
Q. And as it stands right now you're living in the basement apartment, apartment of the house?
A. Yes, so me and my daughters occupy the basement and then my son occupies the one bedroom upstairs.
Q. Okay.
A. Yeah.
Q. There's two bedrooms upstairs as I....
A. Three bedrooms in total...
Q. Three.
A. ...upstairs.
Q. Three bedroom upstairs. One is where your mom is staying?
A. Correct.
Q. One is where your son is staying?
A. Correct. And the other one...
Q. And the other one...
A. ...where Stevie is staying.
Q. ...will be where Stevie is staying. Okay.
A. Yeah.
Q. So you'd have access to that bedroom?
A. Most definitely, yeah. I'm up there every night 'cause, again, my son's up there, right, so.
Q. You'd be able to check to see what Stevie has in his bedroom?
A. Of course.
Q. Would you, would you do that as a surety?
A. Of course.
Q. Okay, and what if you found something, what if you found some bullets?
A. Well, then I would have to call the police and, and advise of them, right. Because, again, he's decided to break the law so I would have to make that known.
MR. GUERTIN: Okay. Thank you, ma'am, I have no further question.
A. Not – no problem, thank you.
THE COURT: Just stay there.
A. Oh, sorry.
THE COURT: Let's first see if the defence lawyer has any questions for you.
A. Okay.
MS. SHEMESH: I don't. Thank you very much, Your Honour.
THE COURT: I have two questions.
A. Okay.
THE COURT: I just did some quick math. Depending on when you get your first paycheque in November, which is probably going to be either the second or third week of November, depending on the pay cycle.
A. For when I get back to work?
THE COURT: Yes.
A. Yeah.
THE COURT: I figure you're going to – you have a deficit of about $700 a month, which means that by the end of October you're going to be dipping into the $5,000 savings between 3,600 and 4,200, leaving maybe as little as $800 in there. If there was a claim against you for the, for the value of your portion of the surety, how would you come up with the $2,000 at that point?
A. Well, I have RSVP [sic], so if I needed to dip into that, I definitely could do that.
THE COURT: So you have other assets.
A. I do have other assets, yes.
THE COURT: And the other question is the lock on the door that Mr. Squires, the bedroom of Mr. Squires would be using, does it have any lock on it or is it just a regular handle?
A. It's a regular handle. Yeah.
THE COURT: Now you get to stand up and go back.
A. Thank you. Thank you.
THE COURT: Actually, are there any questions arising out of my questions?
MS. SHEMESH: No, thank you, Your Honour.
MR. GUERTIN: No, thank you, Your Honour.
THE COURT: And shall I have Ms. Stephanie Squires excluded still since we have one more potential witnesses – witness or not?
MR. GUERTIN: No, I don't need to hear from Ms. Poole, I think the affidavit will suffice. As I understand it, my friend can correct me if I'm wrong, she's being proposed as a third surety, she does live about a six minute drive away and sort of the benefit of having her as a surety, should Your Honour choose to release, is that she's pledging $5,000 and has a more substantial income, so it increases the quantum.
THE COURT: So let me start off, are you both content with Stephanie Squires remaining in the body of the courtroom? Are you both content that mother and, I'm sorry, but I managed to forget....
MS. SHEMESH: Ms. Poole and...
THE COURT: Ms. Poole...
MS. SHEMESH: ...Colleen Squires.
THE COURT: ...are you content that Ms. Poole can come back in as well?
MS. SHEMESH: Yes, please.
MR. GUERTIN: Sorry, the only thing I would say to Ms. Colleen Squires, just out of an abundance of caution knowing that she's a potential witness down the road, I think for submissions in case of any...
THE COURT: In that case....
MR. GUERTIN: ...discussion with Your Honour, I think just to be prudent I would rather have her outside of the courtroom.
THE COURT: All right.
MS. SHEMESH: She'd, she'd only be called, in any event, on the manner of search, how the police entered the home, but out of an abundance of caution I agree.
THE COURT: All right, so let's leave both of them out there for now, but Stephanie Squires is now seated in the body of the court, just so that the record's clear and everybody's content for that.
MR. GUERTIN: Yeah.
MS. SHEMESH: Mm-hmm.
THE COURT: All right.
Submissions
MS. SHEMESH: So I think I'm up first, Your Honour, although as I said I, I think, I think my friend's right on the law that the onus is mine. Let me first start off by saying, Your Honour, that I don't propose to argue at all that there was an error, so I'm not going to focus my attention on what I think may be errors in both the lower court decision and the Superior Court decision, I think it's of no moment. I think we are in a, a different place, there's been a shifting, as I say, or, or a different lay of the land as there was when we were before Justice Forestall and when Mr. Squires was before Justice De Sa.
You'll see from the lower court decision, as I read it, that there were no real secondary ground concerns and if there were the Justice of the Peace seemed to suggest that a suitable plan could alleviate any concerns on the secondary ground.
It was the tertiary ground that caused her the most concern and obviously, I think by virtue of the nature of the charges it's, it's pretty obvious and self-explanatory. But where she differs and where Justice De Sa differs from you is the tertiary, as it relates to the strength of the Crown's case. And I, and I say that because Your Honour's in the midst of hearing a Garofoli application. And so we can't just speak about the, about the strength of the Crown's case in its most general terms, i.e. a gun was found in a home and/or a bedroom that the Crown alleges was occupied by Mr. Squires. That's obvious. It's, it was so obvious to the Justice of the Peace that at page, I think it was 46 of that ruling she indicates that she had very little information concerning the search and she goes on to say that:
Generally these cases rise and fall on the challenge to a warrant, but all I know is a warrant that this time was lawfully obtained and executed and what was found. The strength of the Crown's case concerning the warrant is difficult for the court to comment on.
That's what she says at page 46.
Before Justice De Sa the warrant had, had yet still not been disclosed to the defence as I understand it, and so, again, was not something that was mentioned in the Superior Court and why I say that's important is because it is sort of pivotal to the application that you now are currently hearing.
I don't think I'm speaking out of turn when I say that the warrant in this case is quite weak. It's weak on its merit and it's weak when we look at the deficiencies, in my respectful submission, on the warrant itself and whether or not the requisite reasonable and probable ground standard is met. I know I save those submissions for a later date, but I don't think I'm speaking out of turn when I say that I think the Crown and I, although not fully ad idem, I think we're ad idem in some respects that it is a, a weaker warrant than what we're customarily used to seeing. And, and I say that that, in my respectful submission, changes the strength of the Crown's case, because it has some significance now.
There was no issue with the credibility of the sureties as I read both the lower court decision and the Superior Court decision. So both Stephanie Squires and Ms. Colleen Squires, although there appear to have been some hiccups, according to the Justice of the Peace, where she thought the fact that she had been a surety before and there had been a breach, that somehow or another that that, you know, fell against her, was a strike against her at the lower court. I don't, I don't see it that way, in fact I see it as quite a benefit to her credibility that Your Honour can find that she is someone who will do the right thing and what is expected of her, and that is to call the police if he's breaching, breaching any term of his bail.
So I don't think this is a question of the sureties not being responsible, capable, credible, reliable, I think all of those things are there before you and I think that Mr. Squires has met his onus, vis-à-vis those issues.
The tertiary ground concern is a concern, but when Your Honour looks at, I say, some of the issues surrounding the warrant the sufficiency of the grounds surrounding the warrant, then in my respectful submission this may be a case where Mr. Squires is languishing in custody for no reason.
I too share some of the concerns that Your Honour had raised earlier and that is Mr. Squires is essentially going to be at a place where he may be – he may have served the entirety of a sentence by the time this matter is fully heard. Fully heard and/or decided. And in my respectful submission that is not what pre-trial detention is supposed to be for. He is someone who can be bailed and a plan could be fashioned that could cure some of the concerns around the tertiary grounds that the Crown and society at large may still have and, and certainly I share some of those concerns, particularly when there are children involved. There is on suggestion that a child was found in the home when the warrant is executed, although there appears to be obviously an indication that a child was at the home or in and out of that home at various dates in and around the time of the execution of the warrant, but on the day of the execution it should be clearly understood that there was no child in the home that day.
There are lots of cases, Regina v. White, and I think you can spell it either way, W-H-Y-T-E and W-H-I-T-E, which speak to the fact that an individual may have served the entirety of a sentence or close to the entirety of a sentence and that in and of itself is a factor for release. And so in my respectful submission Mr. Squires can sort of check off that box in, in my respectful submission, he will be at that place that he will have served the entirety of almost a sentence.
But the other boxes that he can check off are the following: one charge already has been withdrawn, that does change the nature of the offences that he currently faces. He was facing a charge of P for P ammunition, that charge has now been withdrawn. And we now have a different plan and that plan, in my view, can alleviate any of the concerns that the Crown and the court may have. He is prepared to report, he's under strict house arrest, he's got two capable and responsible sureties and people who are at home. This isn't a situation where he's being left to his own devices, he's going to be supervised while he remains in home. In my view, some would say that's better than an ankle monitoring bracelet where they can be cut off and there are other concerns that the Crowns typically indicate during a bail hearing. In this case we've got two adults and family members who are prepared to supervise him while in the home at all times.
And so I'm asking Your Honour to accede to the plan that we are proposing. If my math is right, it's $9,000 total for his release. So although it is substantially less than Mr. Bonnie's bail and, again, I, I now parity doesn't necessarily count, but I think it's important, although less than Mr. Bonnie's bail, in my respectful submission, it is still money that is important and certainly serious for the family members that have testified here today.
So in my view, based on all of those reasons and those grounds, I'm asking that you release Mr. Squires to those sureties, including Ms. Poole, who I didn't necessarily spend too much time discussing because she of course won't be in the home with the family members, but she's close by and as you can see it's a close-knit family who are prepared to support and supervise Mr. Squires.
So barring any questions, Your Honour, those are, are my respectful submissions.
THE COURT: I may come back to you.
MS. SHEMESH: Yes.
MR. GUERTIN: So, Your Honour, it's the Crown's position that Mr. Squires has not met his onus to demonstrate a substantial or material change in circumstances as it relates to the grounds for detention at the bail hearing.
The focus is the tertiary grounds, the secondary grounds from the bail hearing and even on today's record are a lesser concern, but there still is that secondary ground concern with the presence of loaded handguns such as this, in terms of the danger that it poses, a substantial risk that it can pose to members of the public. I won't spend a lot of time on the secondary grounds, but it is still something that Your Honour has to consider in assessing whether my friend has met her onus to, to demonstrate that material change.
And it's – Your Honour is well aware sitting in these courts on a daily basis, being a member of our community, of the carnage that the possession of illegal handguns, illegal firearms presents. This is a situation, I mean handguns are designed really, in terms of illegal possession for two purposes: to intimidate people or to, to kill or seriously injure individuals. We are dealing with an offence that is on the true crime spectrum of the possession offences, as opposed to a regulatory type of offence with just a careless storage of a long gun or that sort of thing. So that is an important factor to keep in mind when we're assessing the tertiary grounds.
The plan that has been proposed is somewhat different than what was presented at the bail hearing. There are three sureties now, the bail hearing and the bail review, three sureties now and I recognize that there has been a change in having Ms. Stephanie Squires on maternity leave who's going to be present in the home. So I can't argue that that is not a change in the plan that's being proposed. But what I would submit is that any change that has been put forward does not address the tertiary ground concerns that were the driving factor in leading to Mr. Squires' detention.
So turning to the factors that Your Honour should consider when addressing the tertiary grounds, it is the combined effect of the four factors that are outlined in the Code and that are referenced in St-Cloud, but Your Honour can also consider the totality of the circumstances, it's not confined to the four corners of those factors that St-Cloud makes clear. And it's a balancing exercise that Your Honour has to assess.
So when looking at the apparent strength of the Crown's case, that obviously has to also be balanced against the presumption of innocence. And I agree with my friend that at the bail hearing they did not have the warrant. However, that is sort of a double-edged sword because they were not aware of all the circumstances involving Mr. Squires' alleged or the grounds to believe he was involved in criminal activity. Essentially at the bail hearing stage it's just there's a firearm found in a home during a search. Your Honour has a more fulsome record in terms of the individuals that Mr. Squires was associating with that led the police to conduct their surveillance, that led them to believe that he was involved in drug trafficking and then that ultimately led them to find a loaded handgun, 2 over-capacity magazines, 933 rounds of ammunition. So while my friend is going to be making a strong attack on the warrant, I would submit that there is still some strength to the Crown's case, it is presumed to be a valid warrant and my friend has to meet her onus to show that there was no basis, absolutely no basis for the issuing Justice to authorize that warrant.
In terms of the gravity of the offence, that clearly in this type of situation weighs in favour of detention, I won't go into that, as I say Your Honour's well aware of the dangers associated with the illegal possession of firearms.
And one particular aggravating factors of this is the ammunition, despite the fact that the P for P charge has been withdrawn, the 933 rounds that are held in close proximity, in the same bedroom of this firearm, should cause Your Honour some substantial concerns in terms of the gravity of the offence. And add that or add the fact that there is evidence that children have access to the home, that increases the severity of the offence as well. So that is another factor that I would ask Your Honour to consider when assessing the gravity of the offence. We are dealing with a very, a very serious criminal offence. That also, what I have submitted for the seriousness of the offence also applies equally to the circumstances surrounding the offence and the aggravating factors that are there.
And finally, the fact that Mr. Squires is liable for a potential lengthy term of imprisonment. We have had some discussions about the possibility that Mr. Squires remains in custody till August or beyond and where that would put him in terms of pre-sentence credit. My friend and I are going to – if it ultimately gets to this stage or regardless, my friend and I are not going to be in agreement in terms of the sentencing or the appropriate sentence in an offence such as this, should Your Honour find that the warrant stands and should Your Honour find that Mr. Squires is guilty. I would submit it's still something in the range of three years. My friend is going to submit that it's more along the lines of time-served. Regardless, Mr. Squires is facing a significant lengthy period of, of custody should he be convicted and I would think that it would be an unfit sentence that to suggest that he would be at time-served as of August. Again, there's always considerations of further applications and how credit may or may not be assigned, but I really don't think it's an appropriate exercise to get into that aspect of the pre-trial custody at this stage, 'cause there's no evidentiary record, those are often contested applications that are rather involved.
So while Your Honour should consider and can consider the pre-trial custody and the standard one-and-a-half times credit, I think that is sort of where that inquiry should end.
THE COURT: Other than some Crowns have actually joined defence without the evidentiary foundation, given the history, at least in this jurisdiction, with CECC to propose perhaps different ranges of the credit, but bypass the evidentiary foundation, acknowledge what it would show and then make submissions as to the value to be placed on it.
MR. GUERTIN: And I have been involved in such a process, the difficulty is coming up with a number. Should the – and sorry, to make it clear, my view and I believe the prevailing view amongst the Crown Attorneys here is that an evidentiary foundation needs to be established in the sense of having records to know what has happened essentially. I'm not suggesting that it always has to go through a full hearing with viva voce evidence. But then the issue becomes is it 30 days, is it 60 days, is it 90 days? Again, that is not the stage that we're at at this particular junction and I don't think that that should form a basis for Your Honour's assessment. The pre-trial custody on its own with a consideration that it will be credited at one-and-a-half times is something for Your Honour to consider. But I don't think that that is a driving factor in assessing what the ultimate onus is here and that's to demonstrate a substantial and material change in circumstances as it relates to the grounds at the bail hearing and why Mr. Squires was detained.
So subject to any questions Your Honour, those are my submissions on the issue of this bail-type bail review essentially.
THE COURT: Reply?
MS. SHEMESH: Yeah, just, just on the, on the sentencing issue, 'cause I, I feel like we might be getting bogged down on it, but I, I did want to direct Your Honour's attention to Justice Nakatsuru's recent decisions in Morris and I think there's Jackson too and both of those cases, I don't know if Your Honour will recall it, it got a lot of media attention because His Honour chose to reference African-Canadian men and the over incarceration of these men engaged in offences involving prohibited firearms and restricted firearms and you'll recall that Mr. Morris was found guilty by a jury for an unauthorized firearm and, and possession of a prohibited firearm, it was loaded, he was fleeing from a scene and uniform officers obviously tackle him, it was following a home invasion call. And the Crown in Morris was asking for 4 or 4 point – 4-and-a-half years in jail, while Mr. Morris' lawyer were arguing that a sentence of 12 months, minus credit for a number of what they say were Charter breaches were found and, and Justice Nakatsuru sentences Mr. Morris to, to 1 year. And you'll recall it, it got sort of a flurry of, of attention.
But many other judges have now followed suit and there appears to be a lot of reports, both literary and research wise, that seem to suggest that Justice Nakatsuru was right, that there is indeed an over incarceration and there are ways in which that we can resolve some of these issues, one of which is bail. And bail is the strength, in my respectful submission, of our judicial system and we are at a place now where, in my view, Mr. Squires has served the equivalent of a sentence. Whether you fall a little bit below the range or, or don't meet yet the range that Mr. Guertin is asking for, he's still within that range. And in my respectful submission it is now at a place where that factor and that factor alone, forgetting for a moment where I say there is a, there has been a material change, that factor alone should cause this court enough concern that his release ought to, ought to be granted.
But there has been a material change and the material change, without getting into the strength of my argument on the Charter application, that Your Honour does have the ability to now go back and look at the warrant and my application and the responding materials, you have that ability now after hearing from the affiant. And without necessarily tipping your hand and showing which way, you know, judicially you will land, you can at least get to a place where you can say there's some validity to the argument. Where it falls in the 24(2) analysis or the mix is for another day, but there's some validity to the argument, it's not just there's nothing here and this is simply a defence fishing expedition, there are true, legitimate, meritorious arguments on the Charter for the application to strike the warrant and in my respectful submission that's what makes this a material change.
So those are my reply submissions, unless you have any questions for me, Your Honour.
Ruling
WAKEFIELD, J. (Orally):
I am not going to make formal reasons here, mainly because, I will cut to the chase, and say I think the application's brought too early. And I mean too early in the sense of there are other aspects to the Crown's case that are going to be tested in August, but having said that I also want both counsel to monitor the situation as we build up further pre-sentence custody. Because the worst scenario for me, whatever the merits of Crown and defence positions are here, nobody should spend even a day more in custody than an offence requires, if convicted.
At this point, I am concerned about the strength of Colleen Squires, who has the very best of intentions, but does not seem to have been terribly aware of what was going on in her household. Assuming for the moment that the gun and ammunition belonged to the defendant, but certainly there is a gun and ammunition in the household.
Secondly, she is not a lawyer, in fact she strikes me as somebody who is somewhat naïve and not terribly sophisticated. So I can appreciate some context to her explanation of not believing she had a criminal record with respect to the impaired. But from somebody in my position and my review, that was a clear lacunae in the material, both by way of the affidavit and her testimony that should have been volunteered, if only by way of a question, "Oh, by the way, is an impaired something that is a criminal record?" It is not that she had forgotten about it, she had clear recollection of location, the fine, the driving consequences, in the circumstances of a bail hearing I believe requires that onus to make the inquiry.
Secondly, the tertiary ground is still the main bone of contention I think between Crown and defence. Certainly, the risk of, on the secondary grounds, even with what I perceive as some weakness in mother's ability to monitor, Stephanie Squire certainly came across as a stronger witness in terms of her ability, though her ability to monitor is going to end the end of October and I have real concerns about what we do then as to being able to monitor the defendant. An ankle bracelet, yes it could be cut off, but there is an immediate alarm sounded and perhaps down the road a bracelet scenario may be buttressing component to the secondary grounds.
Justice Nakatsuru's reasons I gather are currently before the Court of Appeal and I am not sure the timelines of that. And certainly any decision I make should not wait until that is released, Mr. Squires here deserves more certainty in life than waiting for an appellate decision on another case. I am bothered, for the same reasons, as both Justice of the Peace Forestall and then Justice De Sa in terms of the tertiary grounds, but I now have the advantage of having heard the affiant and I can appreciate there is going to be some attacks on the affiant when we get to that stage.
I do not have the advantage of, other than through the written material, of the circumstances of the entry which at first blush give me some concern and that too may become a factor when we get to that stage once I have heard evidence.
So whether I say I am leaving it open to renew the application in August, once I have more concrete material, whether it is a new application or further evidence of this application in August, I am prepared to accept the preferences of counsel, but as of today I find that the defendant has not met his onus from what I have heard so far today.
I am especially concerned, as I expressed earlier, however, the timing of the trial component in August takes us to a position where I get very real concerns of exceeding an appropriate sentence in terms of pre-sentence custody. When we go into a position of perhaps towards the end of the year for a ruling and then going into a sentencing hearing and that is another good reason why I am certainly not closing the door on this application by the defendant.
And it will be interesting when we get to that point to see how far apart Crown and defence are in terms of a sentencing position, if there is a sentencing. It is impossible for me to comment at this point in time based on the material I have and the affiant's testimony as to what remedies might be realistic for the Charter applications. That might be somewhat a more clarified position when we get through the testimony in August.
So this, I am sure, disappoints Mr. Squires, understandably so, but I am leaving that light at the end of the tunnel open for Ms. Shemesh to take advantage of if it appears appropriate when we resumed in August. And, again, it may not even be economically possible for the Squires' family to assist in electronic monitoring, I frankly do not even know what the costs involved are. But as I said, might buttress some concerns I have with respect to Colleen Squires....
MS. SHEMESH: I canvassed, Your Honour, it's $500 a month.
THE COURT: That is a lot of money for these people.
MS. SHEMESH: Yes, it is.
THE COURT: All right.
MS. SHEMESH: Otherwise I would have offered it.
THE COURT: I saw that you picked up on my hint earlier on as to it being a factor, but like I say, let's cross that bridge when we get to it.
MS. SHEMESH: Yes.
THE COURT: Any comment from either of you before binding the defendant over to the first day of trial?
MS. SHEMESH: No. I, I'm hopeful that we will finish the trial in the time set aside.
THE COURT: If the pair of you are as focused and as efficient as you have been on the Garofoli, I can tell you that when I first looked at the amount of time set aside I was pessimistic and I feel so much more optimistic now given the work the pair of you have and I'm sure you'll continue to have those conversations between now and then.
MR. GUERTIN: Your Honour, and I think we've almost somewhat narrowed down the issues for August, so I, I imagine the four days we'll be able to finish.
MS. SHEMESH: Yeah. I mean, I mean the other thing that I, that I hope that Your Honour will consider, and I know it's a little bit of, sort of mental gymnastics for you, but the evidence heard on the quote/unquote bail hearing is not evidence that Your Honour can use for any purposes on, and hopefully we're ad idem about this, that Your Honour can't use any of the evidence you heard at the bail hearing on either the Charter application or the trial proper.
THE COURT: Subject to some really forceful submissions...
MS. SHEMESH: All right.
THE COURT: ...by the Crown...
MS. SHEMESH: Yes.
THE COURT: ...I would think that the, the material I've read from the initial bail hearing, the bail review and the testimony I've heard today and not just the submissions by both counsel, but the comments I've made...
MS. SHEMESH: Mm-hmm.
THE COURT: ...does the Crown have any disagreement that I should disabuse myself of the whole...
MR. GUERTIN: No, not...
THE COURT: ...shebang of it?
MR. GUERTIN: ...no, no, you know, it's a separate proceeding, I mean it's, it's not related to the trial at this stage.
THE COURT: I guess all three of us are on the same page...
MS. SHEMESH: Yes.
THE COURT: ...and I'll totally disabuse myself, which is why I've kept my notes for today's hearing separate from...
MS. SHEMESH: Wonderful.
THE COURT: ...the other notes.
MS. SHEMESH: All right.
THE COURT: Okay, I look forward to finding out a lot more about this situation. I'll just ask you to stand up at this point in time, sir. And I am binding you over to appear back in front of me, let's make sure I've got this right, Madam Clerk, the 13th day of August, 2019, 103 court, 9:30 in the morning, marked in person for the continuation of the trial.
CLERK REGISTRAR: That is correct, Your Honour.
THE COURT: Okay. Thank you.
MS. SHEMESH: Thank you very much, Your Honour.
MR. GUERTIN: Thank you, Your Honour.
...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED