w a r n i n g

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (3) or (4) or 486.6 (1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) Any of the following offences;

(i) An offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) An offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) An offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) Two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) At the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) On application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s.15 ; 2005, c. 43, s.8 (3) (b).

486.6 (1) Every person who fails to comply with an order under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 2012-10-17

BETWEEN:

Her Majesty The Queen Respondent – and – Nicole Browne Applicant

Kerry Hughes, for the Crown/Respondent
Edward H. Royle, for the Applicant

HEARD: October 5, 2012

B. P. O’MARRA J.

RULING

[ 1 ] On May 27, 2011, Nicole Browne was arrested and charged with numerous firearms and drug-related charges. She had no criminal record and no outstanding charges. Her co-accused was Troy Robinson.

[ 2 ] On June 29, 2011, she was ordered detained on the tertiary grounds by a Justice of the Peace.

[ 3 ] On August 22, 2011, the detention order was confirmed on a Bail Review in the Superior Court of Justice based on the tertiary grounds.

[ 4 ] Nicole Browne was committed for trial on June 29, 2012 after a Preliminary Hearing that lasted 15 days. Justice L. Chapin of the Ontario Court of Justice presided. Before committal, she heard a de novo bail hearing based on a material change in circumstances. Nicole Browne had been in custody for 13 months and there was a “slight shift” in the evidence favourable to her.

[ 5 ] On July 24, 2012, Justice Chapin ordered continued detention based on both the secondary and tertiary grounds.

[ 6 ] A Bail Review was brought before this court on October 5, 2012. Counsel for Nicole Browne seeks to set aside the order dated July 24, 2012 based on a change in circumstances and errors in that ruling.

OVERVIEW OF ALLEGATIONS

[ 7 ] In May of 2011, police executed search warrants at two locations in Toronto. One was a storage locker and the other an apartment. At the storage locker, the police retrieved a veritable arsenal of firearms and ammunition as well as illegal narcotics. At the apartment, they retrieved two more loaded firearms as well as a large quantity of illegal narcotics and drug paraphernalia.

[ 8 ] The storage locker was rented in Ms. Browne’s name from December 2010 and she attended on occasion to pay the monthly fee of $70.00 in cash.

[ 9 ] The apartment was rented in her name from May 21, 2010. The monthly rent was $1,000.00.

[ 10 ] Ms. Browne was arrested along with Troy Robinson near the apartment. She had a key to the apartment in her pocket as well as $1,300 in cash.

[ 11 ] Ms. Browne had been on bail for unrelated serious charges from August of 2009 until January of 2011 when those charges were withdrawn. One of the terms of that Bail was that she was to reside with her mother at a stipulated address in Toronto.

[ 12 ] Ms. Browne’s mother provided evidence that her daughter lived with her at all times while on Bail. She also advised that she was unaware of either the storage locker or apartment being rented in her daughter’s name.

SECONDARY GROUNDS

[ 13 ] The secondary grounds detention was based on an apprehended breach of the prior Bail term that Ms. Browne reside with her mother. It would, indeed, have been an egregious breach if Ms. Browne had resided in the apartment where the guns, ammunition and drugs were located.

[ 14 ] Ms. Browne was never charged with that alleged breach. Her mother claims Ms. Browne resided with her at all times while on Bail. There is significant evidence linking Ms. Browne to the apartment. However, there is no direct evidence she ever lived there in contravention of her Bail terms.

[ 15 ] The secondary grounds were not invoked to detain Ms. Browne until some 13 months after her arrest. The references in the order of July 24, 2012 to deception and breach of recognizance are based on the following:

(a) that Ms. Browne did not reside continuously with her mother; and

(b) that she lived at the apartment where the guns, ammunition and drugs were found.

[ 16 ] The significant link between Ms. Browne and the locations where guns, ammunition and drugs were found is a valid concern on the tertiary grounds. There was also a degree of deception in that Ms. Browne’s mother/surety was unaware that she rented storage space and an apartment in her own name.

[ 17 ] However, it was an error to order detention on the secondary grounds based on the premise that Ms. Browne actually resided at the apartment and thus breached her residence term. She was never charged with that alleged breach even though the Justice referred to “credible and trustworthy evidence that she did so on a regular basis”.

[ 18 ] The secondary grounds detention was based on a misapprehension of the evidence related to whether Ms. Browne ever resided at the apartment.

TERTIARY GROUNDS

[ 19 ] The Applicant does not contest the application of subsections ii) – iv) included in s. 515 (10)(c) to this case. The apparent strength of the Crown’s case is one of the factors set out in s. 515 (10) (c) of the Criminal Code . Counsel for Ms. Browne submits the following:

(i) There are very triable issues related to knowledge and control at Ms. Browne’s upcoming trial.

(ii) By the end of the Preliminary Hearing, the Crown’s case can no longer be characterized as “very strong”.

[ 20 ] After some 15 court days, Justice Chapin indicated that the case for the Crown is still fairly strong and there is a very good possibility that Nicole Browne will be convicted of the offences. The ruling on committal sets out a significant circumstantial case against Ms. Browne.

[ 21 ] Counsel for Ms. Browne submits that Justice Chapin improperly referred to and considered several unrelated recent shooting incidents in Toronto. It appears the court was referring to press reports that several citizens were severely wounded or killed in those incidents.

[ 22 ] The overarching consideration in applying s. 515 (10) (c) of the Criminal Code is the effect of the release on public confidence in the administration of justice.

R. v. Mordue (2006), 2006 31720 (ON CA) , 223 C.C.C. (3d) 407 (OCA) at para. 25 .

[ 23 ] Justice Hill in R. v. James provides a useful summary of the principles to be considered in addressing the tertiary ground.

[2010] O.J. No. 2262 (OSC) at para. 22

[ 24 ] The public confidence perspective refers to a reasonable, informed and dispassionate public. A reference by the Justice to media reports of other recent shootings in Toronto does not reflect “the excitable and irrational citizen” as referred to in R. v. White.

(2007) 2007 ABQB 359 () , 221 C.C.C. (3d) 393 at para. 18 .

[ 25 ] There are no categories of offences for which bail is not a possibility.

R. v. Blind 1999 12305 (SK CA) , 139 C.C.C. (3d) 87 (Sask. C.A., 1999) at para. 15 .

R. v. Laframboise 2005 63758 (ON CA) , [2005] O.J. No. 5785 (OCA) at para. 31 .

[ 26 ] On the tertiary ground potential delay in getting to trial is relevant.

R. v. Budge [2012] O.J. No. 2538 .

[ 27 ] The requirement to consider “all the circumstances” in s. 515 (10)(c) means a judge must consider both recent events in the community and the broader social context in which the offences are alleged to have occurred. However, Judges must act objectively and dispassionately and apply the law as enacted by Parliament and interpreted by appellate courts.

R. v. A.B. 2006 2765 (ON SC) , [2006] O.J. No. 394 (OSC) at para. 17 .

[ 28 ] The tertiary ground should be invoked infrequently.

R. v. Hall (2002) 2002 SCC 64 () , 167 C.C.C. (3d) 449 (SCC)

[ 29 ] Public concern about safety is a relevant consideration in analyzing the tertiary ground.

R. v. Ljeskovica [2007] O.J. No. 5227 (OSC) at para. 24 .

[ 30 ] Justice Chapin properly considered the combined effect of the factors in the context of all the circumstances.

R. v. Mordue , supra , at para. 31 and R. v. B.S . 2007 ONCA 560 at paras. 10 and 16 .

[ 31 ] The most significant change in circumstances is that Ms. Browne has now been in custody for some 16 months. I am advised that the trial is scheduled for March of 2013. That factor alone or in combination with any other factors is not sufficient to undermine the basis for detention on the tertiary grounds.

DISPOSITION

[ 32 ] Application dismissed. Detention Order confirmed on the tertiary grounds.

B. P. O’Marra J.

Released: October 17, 2012

DATE: 20121016

ONTARIO SUPERIOR COURT OF JUSTICE

Her Majesty The Queen Respondent – and – Nicole Browne Applicant

RULING B. P. O’MARRA J.

Released: October 17, 2012