COURT FILE NO.: CR-12-0100-MO
DATE: 2012-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Claude Richer, counsel for the Applicant
Applicant
- and -
JOHN TSEKOURAS
Edward L. Greenspan Q.C., Joseph S. Wilkinson and Neil McCartney counsel for the Respondent
Respondent
HEARD: August 23 and 30, 2012, in Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
WARNING A NON PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 517 OF THE CRIMINAL CODE OF CANADA
Reasons On Application For Detention Review
[1] This is an application by the accused John Tsekouras, pursuant to section 520 of the Criminal Code of Canada (CCC), for a review of the detention order made by Justice of the Peace B. Leaman on May 3rd, 2012.
[2] Mr. Tsekouras is charged with instructing a criminal organization contrary to section 467.13(1) CCC; conspiracy to traffic in cocaine contrary to section 465(1)(c); trafficking in cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act (CDSA); trafficking in marihuana contrary to section 5(1) CDSA and conspiracy to traffic in marihuana contrary to section 465(1)(c) of the CCC. The offences are alleged to have occurred between June 15th and June 16th, 2011. A date for a preliminary inquiry has not yet been set for this matter.
[3] This was a reverse onus bail hearing because of the nature of the charges against Mr. Tsekouras and the provisions of section 515(6)(a)(ii) and (d) of the CCC. Mr. Tsekouras was detained on the secondary and tertiary grounds set out in sections 515(10)(b) and (c) of the CCC. With respect to the secondary grounds, the J.P. found that there were reasonable grounds to believe that there was a risk Mr. Tsekouras would re-offend if released on bail. Also, the J.P. found that none of the proposed sureties seemed sufficiently cognizant of the accused’s day to day activities and employment, such that the J.P. could not be confident that the sureties would be alert to those things which one might do when conspiring to traffic in drugs.
[4] As to the tertiary grounds, the J.P. saw fit to have Mr. Tsekouras detained for a number of reasons. First, on the basis of his finding that the Crown had a “relatively strong case”. Second, the J.P. found this to be a grave case and recited a notorious fact that in this part of Northern Ontario, the abuse of controlled substances, especially cocaine and oxycodone, was particularly rampant. In the course of discussing the tertiary grounds, the J.P. also indicated he was concerned with the apparent attempt of the accused to destroy evidence upon his initial arrest, and the fact that he was using a communication device that was equipped with sophisticated encryption software (so called PGP encryption). Third, the J.P. took into account the fact that, if convicted, the accused would be facing a lengthy sentence. For these three reasons, the J.P. concluded that on the tertiary grounds, an informed and reasonable member of the public, familiar with Charter rights, would lose confidence in the administration of justice if this accused were released. The J.P. also referred to the provisions of section 515(9.1) to detain Mr. Tsekouras on the basis of his previous criminal record.
Background
[5] The facts alleged by the Crown are as follows.
[6] The Crown placed before the court a brief of over 100 pages. Mr. Tsekouras and a number of other individuals were charged after a lengthy police investigation involving the Organized Crime Enforcement Bureau-Biker Enforcement, the Thunder Bay police, the Ontario Provincial Police and the Royal Canadian Mounted Police. The investigation called Project Dolphin was commenced in January 2010. The essence of the Crown case against Mr. Tsekouras is that he is the leader of a criminal organization composed of a number of individuals who have conspired to bring cocaine and marihuana into the Thunder Bay area and distribute the product to buyers. The Crown asserts Mr. Tsekouras has ties with other criminal organizations. The Crown brief cited examples of circumstances where it is alleged that Mr. Tsekouras has been seen in the presence of one known member of a criminal motorcycle gang and he is alleged to employ two full patch members of the Hell’s Angels in his construction business. A car owned by Mr. Tsekouras was found to have a half pound of marihuana in it when stopped during a routine R.I.D.E check. The car was driven by Rory Pelletier, who also has been charged in connection with Project Dolphin.
[7] Mr. Tsekouras was arrested on June 16th, 2011, as part of a large Project Dolphin take down. On that day, he is alleged to have attempted to destroy his PGP encrypted Blackberry device when confronted by the police officers sent to detain him. The police seized the device and released Mr. Tsekouras. The contents of the Blackberry, its messages and contacts lists, are central to the Crown’s case against Mr. Tsekouras. Crown counsel admitted during submissions before this Court that, absent the evidence obtained on the Blackberry, there is otherwise very little evidence upon which a finding could be made that Mr. Tsekouras is the head of a criminal organization or he himself has been trafficking or has conspired to traffic in controlled substances.
[8] The Crown relies on Mr. Tsekouras’ criminal record and his prior conviction in 1997 for trafficking in cocaine, for which he served a seven year penitentiary sentence. The Crown takes the position that Mr. Tsekouras should remain in custody as the Justice of the Peace committed no error in principle and there has been no material change in circumstances since the bail hearing on May 2nd, 2012
[9] As to the evidence for the defence, in addition to the transcript of evidence of the proceedings before the J.P., Mr. Tsekouras relies on his own affidavit sworn August 20th, 2012, his viva voce evidence given at the bail review application, affidavits of new proposed sureties Mr. Luigi Galle and Ms. Athena Blieske, supplementary affidavits of previously proposed sureties Lemonio Tsekouras, Haralambos Tsekouras, Angelo Marino, Mary Connie Marino, Cherie Papa and Adrian Vatamenelu and the further viva voce evidence of a new proposed surety Haralambos Tsekouras.
The Standard of Review
[10] The Crown submits that the standard of review most commonly applied at a bail review is the “hybrid” model (R v. Akdemir, 2010 ONSC 6955 [2010] O.J. No. 5461, and R v. Myles, 2007 CanLII 19620 (ON SC), [2007] O.J. No. 2118). The Crown also referred in argument to the decision of Justice Hill in R v. Ferguson [2002] O.J. No. 1969 where he stated at Para. 13:
A bail review is not a de novo hearing allowing unfettered substitution of views by the superior court of criminal jurisdiction. Ordinarily, an error in principle or law or jurisdiction, or a material change in circumstances, is necessary to found interventionist scrutiny.
[11] I agree with the position of the Crown concerning the standard of review. A review under section 520 of the CCC should not be categorized as an ordinary appeal, nor is it similar to an appeal by way of a trial de novo. Parliament intended the review to be conducted with due consideration of the initial order, but depending on the circumstances, an independent discretion is to be exercised by the review court. However, the case law indicates if there is a finding of a material change in circumstances, the presiding justice may consider the material change, which could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in the governing section.
Discussion
[12] The defence claims that the Justice of the Peace made three errors in principle. Also the defence argues there have been material changes in circumstances since the May 2nd decision. Having made errors in principle and there now being material changes in circumstances, the defence argues that the result of this review should be an order that Mr. Tsekouras be granted bail. The Crown disputes the defence position and seeks an order that the application for a bail review be dismissed.
The alleged first error in principle
[13] The first alleged error in principle relates to findings the J.P. made related to the primary grounds, which the defence argues should logically have been carried forward to a consideration of the secondary grounds. This argument is based on the fact that the J.P. found the defence had met its burden to demonstrate on the primary grounds that detention was unnecessary. In accepting that Mr. Tsekouras had demonstrated that he would attend at further hearings if granted an interim release, the J.P. found that Mr. Tsekouras has strong ties to the Thunder Bay community. The J.P. said:
This court is satisfied that the defence has discharged its onus on the primary ground. It seems to this court highly unlikely that anyone, even someone with Mr. Tsekouras’ related but dated criminal record would not attend in court as required and his family and friends are willing to risk the value of their home and savings on him.
[14] In respect of the first grounds, the J.P. found that the impact of the risk to the assets of Mr. Tsekouras’ friends and family was sufficient to convince the Court that Mr. Tsekouras would attend further Court appearances, thus satisfying the primary ground. The defence argues that this factual finding was not carried forward to a consideration of the secondary grounds. The J.P. went on to find that the defence had failed to meet its onus on the secondary grounds:
Even with the type of supervision being proposed by several sureties and the large amounts they are prepared to risk, that the lure of the monies that may be made in the distribution of illicit drugs might not be overwhelming for this accused given his background.
[15] The J.P. was not satisfied that, despite their good intentions and promises to report any breaches of conditions to the police, the sureties had not demonstrated sufficient knowledge of Mr. Tsekouras’ day-to-day affairs that the J.P. could feel confident in their abilities to supervise him.
[16] The defence argues that having found the defence met its burden on the primary ground, the J.P.’s finding as to the secondary ground represented an error in principle. As the J.P. found that Mr. Tsekouras had met the burden of proof to demonstrate the putting of his family’s and friends’ assets at risk was sufficient to ensure Mr. Tsekouras would attend court, it was incongruous for the J.P. to not find that the same acceptance of risk would not be sufficient to ensure the sureties would supervise Mr. Tsekouras and prevent him from committing further offences while on bail.
[17] The Crown argued that this is not an incongruous finding. The Crown took the position that the findings with respect to the primary and secondary grounds were consistent as the findings with respect to the secondary grounds were founded on an assessment of the abilities of the sureties to supervise, rather than an assessment of their tolerance for risking their assets on the outcomes of their supervision efforts.
[18] In assessing the parties’ positions on this first alleged error, I was mindful of jurisprudence related to the secondary ground. In R. v. Morales, 1992 CanLII 53 (SCC), [1992] S.C.J. No. 98, [1992] 3 S.C.R. 711, at para. 37, Lamer, J. stated, in relation to the secondary ground:
…danger or likelihood that an individual will commit a criminal offence does not itself provide just cause for detention. In general our society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime.
[19] Lamer J. continued, at para. 39:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.
[20] The standard created by the term “substantial likelihood”, is described by Justice Trotter in The Law of Bail In Canada, 3rd, (Toronto: Thomson Reuters Canada Limited, 2010) at p 3-16 as follows:
The proper, and accepted, approach is a slightly enhanced balance of probabilities standard. This is a suitable standard, as it reasonably protects the accused from being detained on a mere suspicion of future criminal activity.
[21] I am of the view that the J.P.’s findings in regard to the primary ground are not logically consistent with the J.P.’s findings on the secondary grounds. I agree with the defence argument that an error in principle was committed by the J.P. in this respect. If the risk to the assets of friends and family are sufficient to comply compliance to attend Court, then surely that deterrent is also sufficient to deter the accused from committing crimes while on bail. In answer to the Crown’s argument concerning the personal ability of the sureties to ensure Mr. Tsekouras will not commit additional criminal acts while on bail, it was pointed out by the defence in argument that this case presented a somewhat unique fact circumstance involving the manner by which Mr. Tsekouras ultimately came to be before the Court.
[22] Mr. Tsekouras was initially detained in June 2011. He was not formally charged at that time and was released. He was arrested and charged in April 2012. It is of particular interest to me, that there was absolutely no evidence led at the initial bail hearing, or before this court, that Mr. Tsekouras did anything illegal or improper between June 2011 and April 2012. This was not taken into account by the J.P. at first instance. In my view, the fact of no further alleged criminal activity is a factor that weighs in favour of the proposition that there is not a substantial likelihood that Mr. Tsekouras will reoffend if granted bail. For me, this reinforces the error in principle made by the J.P. in determining that the accused had not met its burden with respect to the secondary grounds.
The alleged second error in principle
[23] A second error in principle is alleged by the defence. The defence argues the J.P. erred in principle by wrongly assessing the defence bail plan as inadequate. This compounds the error in principle made by the J.P. in respect of assessing the secondary grounds according to the defence. Mr. Tsekouras argues that a large amount of bail has been offered with a great number of competent and willing sureties and the strength of the plan was not adequately considered by the J.P. in ordering Mr. Tsekouras to remain in detention pending trial.
[24] The Crown points to the admitted lack of knowledge of the exact particulars of the day to day activities of Mr. Tsekouras as evidence that the JP’s assessment of the bail plan did not represent an error in principle. The Crown points out that most, if not all the sureties could not identify what Mr. Tsekouras does, day to day, or what he does in his capacity as a property manager. The Crown also points to the lack of knowledge of drug “code words” or the ability of the sureties to identify cocaine, marijuana or oxycodne as evidence of their inability to properly supervise Mr. Tsekouras.
[25] I don’t accept this particular portion of the judgment of the J.P. by itself represented an error in principle. I do however find that given there was an error in principle regarding the assessment of the secondary grounds, I can consider the merits of the defence argument in now assessing whether or not this review should be allowed.
[26] In my view, the assessment of the J.P. of the capabilities of the sureties was too harsh to be considered appropriate for considering if the defence had met the test under the secondary grounds. If one accepts the Crown argument regarding the knowledge required of the sureties, it appears that only a person who is intimately familiar with a criminal lifestyle could be considered as an appropriate surety. The defence argued that this would mean that only police officers, crown prosecutors and other criminals would have sufficient knowledge to be sureties. While I appreciate this is an extreme view, it strikes me, in this case, that enough people have offered to be involved in the supervision of Mr. Tsekouras that there is not a likelihood he will reoffend while on bail. They have sufficiently risked their major assets in support of their pledge to supervise, and for me, the plan put forward by the defence is sufficient to satisfy this court that there is no substantial likelihood that Mr. Tsekouras will reoffend.
[27] Also, given the Crown admission that its central piece of evidence against Mr. Tsekouras is the Blackberry, in my view, the focus of any consideration of supervision by sureties, should have considered their ability to limit his use of these devices as the real test of their ability to supervise. In the proposed bail conditions, Mr. Tsekouras has agreed he will not possess any cell phones, Blackberries, I-phones or other handheld communication devices or tablets. He has agreed not to use a telecommunication device of any kind, including landlines, except under the direct supervision of his sureties. He has agreed not to access the internet or email except for communication with counsel. He has agreed not to have a Facebook or other social media website account in his name or anyone else’s name. He has agreed not to communicate directly or indirectly with any of his co-accused except through counsel.
[28] All of these conditions, in my view, can be supervised by any competent adult and no particular knowledge of Mr. Tsekouras’ daily routine or work habits is necessary to enforce these strict provisions. If the sureties see Mr. Tsekouras with an electronic communication device in his hand, they must report him to police. The sureties do not need to know the language of the drug trade or code words to carry out this important aspect of their supervisory duties. They have agreed if they see him using these devices, he has breached his terms and their assets will be at risk.
The alleged third error in principle
[29] The defence argues a third error in principle was made by the J.P., namely, that the J.P. did not adequately take into account the possibility of success of Mr. Tsekouras’ section 8 Charter arguments relating to the evidence found on the Blackberry when assessing the strength of the Crown’s case. The defence made a section 8 argument before the J.P., but has now received additional information and evidence by way of Crown disclosure which it says makes its position considerably stronger on this point. The lack of disclosure also is relied upon by the defence as evidence that a material change in circumstances has occurred triggering the ability for this Court to alter the assessment of one or more of the statutory factors set out in the governing section.
[30] The Crown argues that the J.P. did take the defence position regarding its section 8 argument into account and no error in principle has occurred. The Crown points to the following in the J.P.’s oral decision:
The first factor to be considered under s. 515(10)(c) is the apparent strength of the prosecution’s case. If the Crown is able to have its evidence ruled admissible at trial, including the PGP device messages, the intercepted communications and drugs and other items seized during the execution of search warrants of the alleged members of the accused’s criminal organization, in this court’s view the Crown’s case is relatively strong despite this being a circumstantial case as both counsel admit. (my emphasis added).
[31] The Crown argues this reference to evidence is sufficient indicia that the J.P. did consider the impact of the possible Charter violation and therefore committed no error in principle.
[32] It was conceded by both counsel in argument that the bail court, and indeed this Court sitting in this present capacity of performing a bail review, lacks the jurisdiction to make findings with respect to exclusions of evidence on the basis of alleged Charter violations. In R v. Smith, 2011 ONSC 4686, [2011] O.J. No. 3683 Justice Ricchetti stated at Para. 63:
It is not for this court to determine the validity of the search warrant or the admissibility of the seized property. Such a determination can only be made in a pre-trial application where full evidence and submissions on the issue will be heard before a decision is made. However, if there are credible issues which appear to affect the validity of the search warrant, then this court must consider the impact these issues may have on the strength of the Crown’s case. There is no doubt that there is a credible s. 8 Charter issue regarding the validity of this warrant. In this case, this issue does not potentially affect the strength of the Crown’s case.
[33] I agree that in the course of this process, I am not being called upon to rule on the validity of the section 8 arguments. However the admission by the Crown, both before this court and before the J.P., that its central piece of evidence against Mr. Tsekouras came from his Blackberry, leads me to find that is was essential for the J.P. to at least outline in some detail, how the search and seizure process impacted on the assessment of the Crown’s case. The oral reasons of the J.P. do not satisfy me that he gave the section 8 argument sufficient consideration. The reasons are far too brief on that point and do not directly address the question as to how the central defence argument was considered in a bail hearing where the defence did bear the burden of proof.
[34] In assessing whether or not the J.P. gave due consideration to the defence’s section 8 Charter argument, about the possible exclusion of the Blackberry and its influence on the assessment of the strength of the Crown’s case, the Crown relies on the decision of the Supreme Court of Canada in R v. R.E.M., 2008 SCC 51, [2008] 3S.C.R. 3, a leading case on the issue of the test for sufficiency of reasons in trial decisions. In that decision, the Supreme Court summarized the cases regarding the assessment for appellate purposes of the sufficiency of reasons given on trial decisions at para. 35 as follows:
(i) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at para. 28).
(ii) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.
(iii) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.
[35] In my view, the reasons of the J.P. do not sufficiently indicate that consideration was given to the section 8 argument of the accused. As there is no specific reference to the section 8 argument, I find the J.P. simply did not consider the other side of the argument in respect of the strength of the Crown’s case at all. Particularly, as the Crown conceded the only piece of evidence that connects the accused to the criminal organization and its alleged activities is the Blackberry, some direct and specific comment concerning the search should have been made so as to indicate the J.P. was alive to the issue. In every case, the Crown has issues of admissibility of its evidence as they bear the onus of proving charges beyond a reasonable doubt. To the extent of the defence’s position that an assessment of the Crown’s case requires an assessment of the possibility that Crown evidence may be excluded, some discussion would be expected to indicate what bearing, if any, the defence position had on the J.P.’s consideration on the strength of the Crown’s case.
[36] The J.P. did not reference the merits of the defence objection at all. In this case, I find that one cannot logically connect how the J.P. could assess the Crown’s case as being strong. I agree with the submissions of the defence and find this to be an error in principle relating to the J.P.’s findings regarding the tertiary grounds.
Material change in circumstances
[37] The defence also argues that material changes in circumstances has occurred since the hearing on May 2nd, 2012 . This argument relies on two elements; new disclosure received from the Crown and additional “clarification” of the defence’s bail plan by way of the addition of more sureties and a clear written set of conditions Mr. Tsekouras is prepared to abide by, if he is granted bail.
[38] On the first day of the hearing before me, the Crown provided the defence with an external hard drive containing additional disclosure. The defence could not immediately access this material, lacking computer facilities and having to argue the case that very day. There was a seven day hiatus until the second day of this hearing. During that time, a review of the material revealed information, which the defence argues, indicates the search of the Blackberry was done contrary to Mr. Tsekouras’ rights under section 8 of the Charter. Also, the defence points to newly disclosed notes of the investigating officers which arguably confirm the officers involved in the search appreciated there would be a serious legal basis to challenge the methodology of the search. The defence further argues that the Crown did not comply with its obligation to bring the Blackberry before a judicial officer once it had detained the item beyond September 13, 2011, contrary to section 490(1)(a) of the CCC.
[39] The Blackberry was seized June 16th, 2011. In the recent disclosure, the Crown revealed to the defence, for the first time, that an application had been made on July 21st, 2011, pursuant to section 489.1 of the CCC to maintain possession of the blackberry for the purposes of the ongoing investigation concerning Mr. Tsekouras. A J.P. granted the application and permitted the Blackberry to be maintained until September 13th, 2011. The Crown admitted in argument before me, that it had no knowledge that a section 490(1)(a) application had been made to permit detention of the device beyond that September 13, 2011 date. The defence says no such application has been made.
[40] I accept the position of the defence and I find that the section 490(1)(a) application was not made to permit detention of the Blackberry beyond September 13, 2011. This fact was not before the J.P. hearing the bail review at first instance. However, argument was made before the J.P. about a section 489 application which on May 2nd 2012, neither Crown nor defence were certain had, or had not, occurred.
[41] On July 20, 2011, the day before the section 489 application was made, the Thunder Bay police obtained a CD which contained data that had been obtained from Mr. Tsekouras’ Blackberry. On August 5, 2011, the Thunder Bay police sought the assistance of the RCMP with respect to Mr. Tsekouras’ Blackberry. In its request, the Thunder Bay police noted:
A/Sgt Justin Dubuc #328 – Thunder Bay Police Service is the lead investigator of Project Dolphin and is aware that the analysis for the Electronic Devices is destructive and is authorizing the unlocking/analysis of the devices. There are no known factors which will impact the admissibility of the Electronic Devices in any court proceedings.
[42] In support of the statement concerning admissibility, the Thunder Bay police request cited an unreported case R. v. McTavish (2010-12-08) a decision of Justice Sproat. It turns out this decision was an oral decision and it does not appear in any computer data bases regularly accessed by the profession or the public.
[43] The lead investigating officer for Project Dolphin, Detective Constable Rob Kushnier of the Thunder Bay police, met with Corporal Millar of the RCMP on January 25th 2012. On January 30th, 2012 Detective Constable Kushnier’s notes stated:
obvious that additional s/w (search warrant) will be required…Tsekouras submission was noted as relying on R v. McTavish, Ont. Sup Court (April 2011) decision of Justice Sproat…determined case law does not support the extensive exam + dump of data.
[44] On February 2, 2012, Detective Constable Kushnier’s notes indicated “advised by Cpl Miller that s/w was sent and was advised unit could not be examined as unit is rendered useless.”
[45] The defence argues that it is clearly established law in Ontario that police officers need a search warrant to search a smart phone or Blackberry type devices. In R v. Manley (2011), 2011 ONCA 128, 269 CCC (3d) 40, the Ontario Court of Appeal stated at paragraph 39:
It is neither necessary nor desirable to attempt to provide a comprehensive definition of powers of the police to search the stored data in cell phones seized upon arrest. However, I would observe it is apparent that the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology. While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.
[46] Relying on arguments concerning new facts revealed in the new disclosure, and the law concerning search warrants for smart phones, the defence argues that a material change in circumstances has occurred. I agree. The contents of the disclosure was very material to any discussion of the strength of the Crown’s case. This was not placed before the J.P. because of late disclosure. In this case, given the central aspect of the Blackberry to the case against the accused, I find that the inability of the defence to have access to information relating to the manner of the search, the lack of a section 490 application to permit detention of the item beyond September 13, 2011, and the comments of the investigating officer concerning the search are indicative that a material change in circumstances has occurred. In my view, the additional evidence concerning the circumstances of the search, the destructive nature of the search, the failure to bring a section 490 application, and the notes of the investigating officer which offered the opinion that the search required a warrant which wasn’t obtained, casts an entirely different light on the assessment of the strength of the Crown’s case. Assessing this evidence, it is difficult for me to say that the prosecution’s case is strong.
[47] The Crown argues that if this defence position is accepted, it only goes to one aspect of the tertiary grounds. In my view, the authorities indicate that it is rare that the tertiary grounds will be relied upon to justify detention of an accused. In this case, where the Crown’s case relies on one central piece of evidence, and it appears that the defence has an argument about its admissibility, late disclosure of additional material information concerning the manner in which that item has been dealt with by police represents a material change in circumstances.
[48] The second material change argued by the defence related to the additional sureties offered and the more detailed plan provided on this hearing. I am mindful of the jurisprudence which indicates that the presentation of new sureties generally will not be accepted as a material change in circumstances. In general, I agree with the comments of Justice Hill in R v. Ferguson, [2002] O.J. No. 1969, (a case cited to me by the Crown) where he said:
Simply reshuffling the deck of prospective sureties to draw out new one, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it be reasonably said that the submitted material change in circumstances is relevant to the existing cause of detention
[49] In this case, I have a different view of the defence plan than was assessed by the J.P. in first instance. This was discussed above in my comments concerning the second alleged error in principal. However, having found errors in principle and a material change in circumstances relating to late disclosure, I do not find it necessary to decide whether or not the second element of the material changes argued by the defence is valid. In my view, the elements of error and material change permits me to reassess the statutory grounds upon which the accused has been detained and assesses the evidence the accused puts forward as he bears the onus in this particular case. In regard to the secondary grounds, I find the accused has met the burden of persuading me that there is not any substantial likelihood that the accused will reoffend or will interfere with the administration of justice while he is on bail.
[50] As far as the tertiary grounds are concerned, in light of this lately disclosed evidence, there is an arguable issue as to the strength of the Crown’s case. Based on the contents of the material disclosed to the defence on the first day of this hearing, I find that the defence has met its onus to show that detention on the tertiary grounds is unwarranted. In my view it would be inappropriate to continue to have Mr. Tsekouras detained on that basis.
[51] Accordingly, I have found that the J.P. committed two errors in principle and that a material change in circumstances has occurred. As noted above there is no issue about the accused meeting the burden on the primary grounds. As discussed, in my view the defence has met its burden on the secondary grounds for three reasons. First, I agree with the J.P.’s assessment that the amounts prepared to be offered by the sureties will act as a positive influence on the behavior of the accused. Second, the lack of evidence of any reoffending behavior from June 2011 to April 2012 by the accused gives me confidence he will not reoffend. Third, the detailed terms with respect to use of communication devices by the accused while on bail (including ones I am going to impose) creates conditions where there will not be any substantial likelihood that the accused will reoffend or interfere with the administration of justice while on bail.
[52] Based on arguments related to the materials lately disclosed, it is my view that the defence has met its burden on the tertiary grounds. The defence has an arguable case that the central piece of the Crown’s evidence against the accused may be excluded. There is an argument that the Crown’s case is not strong. In my view, for this case, this particular tertiary ground is of greater weight than the others, given the presumption of innocence in favour of the accused despite the reverse onus nature of this bail hearing.
[53] At the close of argument, counsel for the defence invited me to add any additional terms to those proposed if I was prepared to grant bail. In the circumstances, I am going to require that no internet access be available in the house where Mr. Tsekouras is living. I understand this may represent a burden to his family, but I believe in light of the allegations against Mr. Tsekouras, this represents an additional safeguard against the “lure” of reoffending. In addition to no hard wired internet, no wifi capacity is to be made available to Mr. Tsekouras in his place of residence. This may require that Mr. Tsekouras live with his parents as his primary residence as proposed in the alternative by the defence.
[54] Taking into account all the circumstances, this court has determined that Mr. Tsekouras has shown cause why he should be released on very strict conditions. In summary, it is appropriate to grant bail to Mr. Tsekouras because of:
a) the agreement of his various sureties to pledge over 1.2 million dollars in property;
b) the strict terms Mr. Tsekouras is prepared to live by including restrictions concerning electronic and telephone communications;
c) Mr. Tsekouras understanding of his obligations;
d) The understanding of the obligations of the various sureties as outlined in their affidavit material and their vive voce evidence;
e) the nature of the charges against Mr. Tsekouras;
f) the strength of the Crown’s case against Mr. Tsekouras which, although significant, will be faced with a serious challenge to the admissibility of the contents of the one device from which the Crown derives the central pieces of evidence necessary to possibly convict Mr. Tsekouras;
g) the presumption of innocence and;
h) Mr. Tsekouras’ criminal record and lack of any violent offences in that record;
[55] The order below is vacated and Mr. Tsekouras shall be released on the following terms and conditions:
a) Sureties will be posted without deposit by the following persons in the following amounts;
i) Luigi Galle $550,000.00;
ii) Haralambos Tsekouras and Lemonio Tskouras $640,000.00 ;
iii) Athena Blieske $200,000.00;
Upon his release Mr. Tsekouras is subject to the following conditions and will be required to:
b) keep the peace and be of good behaviour;
c) not to possess any weapons as defined by the Criminal Code;
d) not to possess any firearms or imitation firearms and not to possess or apply for a firearms possession and acquisition licence;
e) not to consume or be in the possession of any non-medically prescribed drugs or to be in possession of any drug trafficking paraphernalia;
f) not to possess any cell phones, Blackberries, iPhones or other handheld communication devices or tablets;
g) not to use a telecommunication device of any kind, including landlines, except under the direct supervision of one of his sureties, when directly contacting one of his sureties, in the event of a medical emergency, or in communication with his counsel;
h) not to have internet or wi-fi internet access available at his place of residence and not to otherwise attempt to access the internet or email except for communication with counsel;
i) not to have a Facebook or other social media website account in his name or anyone else’s name;
j) to reside with one of his sureties, and be amenable to the routine and discipline of that house;
k) to designate and advise the Thunder Bay police within 7 days of this order, of his permanent place of residence within the City of Thunder Bay for the balance of the duration of this order and to be in his residence at all times except when in the company of one of his sureties or his wife, Julie Tsekouras;
l) to remain within a 200 km radius of the City of Thunder Bay, save and except for attending at scheduled appointments with his counsel or scheduled medical appointments;
m) to deposit with Detective Constable Kushnier, or his designate, his passport, Nexxus Card and or Certificate of Canadian citizenship within 1 week of his release from custody and shall not apply to replace these documents;
n) to carry a copy of his release order on his person at all times and present it to any peace officer on request;
o) to report to the Thunder Bay police detachment on Balmoral Street upon release and then every Wednesday between the hours of 8:00 am and 8:00 pm with one piece of personal identification that includes a photo;
p) to present himself at the door of his residence upon a request being made by the police at any time when he is required to be at his residence;
q) not to associate or communicate directly or indirectly with any of the other co-accused in this matter, namely Frank Muzzi, Maria Muzzi, Laura Muzzi, Ben Tycholiz, Robert Chiodo, Rory Pelletier, Travis Gordon, Ryan Smith, Eugenio Caruso, Greg Pelletier, Frank Magisano, Ashur Baijan, David Hui, Orasha Bailey and Salvatore Larizza, except through counsel;
r) to attend court as required and on October 11, 2012 at the Ontario Court of Justice in Thunder Bay.
[56] If the parties need to speak to me regarding implementation of the terms of release an appointment may be taken out with the trial coordinator for an immediate date before me.
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: October 2nd, 2012
COURT FILE NO.: CR-12-0100-MO
DATE: 2012-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and –
John Tsekouras
Respondent
Reasons On Application For Detention Review
The Hon. Mr. Justice F. B. Fitzpatrick
Released: October 2nd, 2012
/cmmrt