COURT FILE NO.: CRIMJ(F) 1943/12
DATE: 20121210
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Terrence Stewart
BEFORE: Baltman J.
COUNSEL: P. Ojiegbe for the Applicant, Terrence Stewart
M. Park for the Respondent Crown
RULING ON BAIL APPLICATION
[1] The applicant, Terrence Stewart, seeks release pending trial. He is currently detained at Maplehurst Correctional Complex in Milton, Ontario, facing a charge of importing approximately one kilo of cocaine.
[2] The applicant has been detained since his arrest on February 24, 2012, and has never had a show cause hearing; according to his application, he was never “in a position to proceed” with one until now because he lacks a suitable surety. In these circumstances the Crown agrees this hearing should be treated as an application de novo. Both parties agree that a reverse onus applies, requiring the applicant to demonstrate on the balance of probabilities that his release is justified.
[3] After hearing evidence and submissions from counsel, I ordered that for reasons to follow, the applicant shall remain in custody, without prejudice to his returning the matter before me with Paul Verga in attendance. The details are set out in my reasons, below.
Factual Background
[4] The applicant is 47 years old and single. He emigrated to Canada from Jamaica in 1975, and lived in Montreal until 1983. Before his arrest on this matter he was living in a basement apartment on Albion Road in Mississauga. He was unemployed and had applied for disability benefits due to a back injury. His last employment was in 2010 when he worked for C & B Auto as a mechanic. Before that he worked for three years for a company that disposes of medical waste.
[5] He has a criminal record, with three convictions: the first was in 1992, for possession of a restricted weapon, resulting in a sentence of 30 days and a firearm prohibition for 5 years; the two remaining convictions were in February 1995, for possession of firearm while prohibited and pointed a firearm, resulting in 10 months on each charge (concurrent) and a firearm prohibition for life.
[6] The current charge arises from an intercepted delivery on February 21, 2012. The RCMP intercepted a package from Jamaica containing one kilo of cocaine, addressed to “Oliver Terrelonge”, at an apartment building on Albion Road, Mississauga. On February 24, 2012, an RCMP officer posing as a courier, arrived at the residence. The package was accepted by the applicant’s landlord. Later that day the police saw the applicant enter the premises. Upon questioning he told police he has a room in the basement where he sometimes stays, and consented to them searching it. There officers found a notebook in the room containing an email address that links to Oliver Terrelonge. The applicant denied knowledge of the contents of the package.
[7] The applicant was arrested on February 24, 2012 and, as noted above, did not seek bail until now. His trial is scheduled to commence on April 8, 2013 and conclude by April 19, 2013.
[8] The applicant stated that for the past ten years he has been living at an apartment at 110 Marlee, but at the time of his arrest was “in the process of moving out”. He occasionally stays overnight at the Albion Road address because he has friends that live there. Unfortunately, those friends have not been able to serve as a surety.
[9] He has no family in Toronto. His sister lives in Montreal and is debilitated by multiple sclerosis. His mother lives in Jamaica. His passport, which was seized by police upon his arrest, shows that he has visited Jamaica six times in the past 12 years. He testified that he goes there frequently to visit his mother, who is now 84 years old.
[10] The applicant thus has no one who is able or willing to be a surety. His plan for release is twofold: first, he deposes that his friend, Paul Verga, who manages “No Excuse Auto Centere”, will employ him and permit him to live at his (Verga’s) house while he is awaiting trial; second, he proposes to act as his own surety, having been accepted into the Bail Program by the John Howard Society. The applicant further advises that he is able to post $2,000 as security.
[11] The Crown opposes his release based on both the primary and secondary grounds.
Analysis
- Primary Grounds
[12] I agree with some of the concerns raised by the Crown in this regard, the major one being that the applicant lacks meaningful roots in the community and therefore may have little incentive to remain in the jurisdiction and attend trial. The applicant is unemployed and has no real friends or family in the GTA. I appreciate that he identifies Mr. Varga as a potential employer who will also provide him with a place to live, but that information is not confirmed in any reliable way. Mr. Varga did not attend the bail hearing. The exhibit attached to the applicant’s affidavit confirming the job offer was not from Mr. Varga but from Lily Bark, who is apparently the CEO of the company.
[13] Moreover, although the applicant has been accepted into the John Howard bail program, that would only insure some type of reporting system; it does not entail any meaningful supervision. When coupled with the absence of any direct evidence as to who will be employing the applicant and where he will live should he be released, the court is left uneasy about whether he is motivated to remain in the jurisdiction and attend court.
- Secondary Grounds
[14] The Crown submits that the seriousness of this offence coupled with the applicant’s criminal record creates a strong risk that he will re-offend while awaiting trial.
[15] The applicant’s criminal record, while serious enough, is quite dated. The current charge is also very serious and carries with it the potential for a significant penitentiary sentence. However, while the evidence thus far suggests some link to the importation in question, it is far from conclusive. Nor is there any evidence that the applicant is wealthy or a member of a sophisticated organization with huge incentives for him to continue criminal behaviour while awaiting trial.
Conclusion
[16] In my view the applicant has failed, thus far, to demonstrate that his release is justified, mostly on the primary grounds. However, as I stipulated in court on December 4, when I ordered his ongoing detention, this is without prejudice to his returning the matter before me with Mr. Varga in attendance in order to confirm the alleged offers of employment and residence. I also indicated that such evidence, while possibly persuasive on a re-attendance, would not necessarily result in a release, but rather would be factored into a re-consideration to be based on all the relevant circumstances.
Baltman J.
DATE: December 10, 2012
COURT FILE NO.: CRIMJ(F) 1943/12
DATE: 20121210
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Terrence Stewart
BEFORE: Baltman J.
COUNSEL: P. Ojiegbe for the Applicant, Terrence Stewart
M. Park for the Respondent Crown
RULING ON BAIL APPLICATION
Baltman J.
DATE: December 10, 2012