ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-0070-BR
DATE: 2012-02-09
B E T W E E N:
HER MAJESTY THE QUEEN
Elaine Burton , for the Crown
Respondent
- and -
BRADLEY TOMECK
Gilbert Labine , for the Applicant
Applicant
HEARD: February 3, 2012, at Thunder Bay, Ontario
Mr. Justice F.B. 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 Review of Detention Order
[ 1 ] This is an application by the accused Bradley Tomeck pursuant to s. 520 of the Criminal Code of Canada (“ CCC ”) for a review of the Detention Order made by Justice of the Peace M. Donio on September 29, 2011.
[ 2 ] The detention order was made on the secondary grounds with a passing reference to the tertiary grounds.
[ 3 ] Mr. Tomeck is charged with the following;
Seven counts relating to an alleged armed bank robbery which occurred on January 19, 2011;
Breach of his recognizance of bail arising from the robbery charges of January 2011, which breach is admitted by Mr. Tomeck to have occurred on August 18. 2011;
One count of sexual assault which is alleged to have occurred on September 20, 2011;
A further admitted breach of recognizance of bail from new terms imposed following the breach of August 2011.
[ 4 ] Mr. Tomeck’s trial with respect to the sexual assault charge commenced on November 30, 2011 at the Ontario Court of Justice in Thunder Bay. At the commencement of trial, an application was brought by the defence pursuant to s.276.4 of the CCC to question the complainant on prior consensual sexual activity. The application was heard and put over to January 5, 2012. The motion was allowed, evidence was called at a January 31, 2012 hearing, and a further decision will be made on February 14, 2012. It is anticipated the trial will continue, but will not be scheduled until sometime after June 2012.
[ 5 ] The trial relating to the alleged armed bank robbery commenced on December 19, 2011 at the Superior Court of Justice in Thunder Bay. Four days of evidence have been completed. An issue came up in the trial concerning DNA evidence and the trial has been adjourned to April 30, 2012 for at least four more days of hearing.
[ 6 ] At the bail hearing on September 29, 2011, Mr. Tomeck was detained on the secondary and tertiary grounds contained in section 515(10)(b)(c). Justice of the Peace Donio was not satisfied that the accused had met its burden of establishing that his plan for judicial interim release was suitable. Justice of the Peace Donio denied Mr. Tomeck bail on the basis of the seriousness of the charges before the court, the strength of the crown’s case, the fact of the breaches of the previous recognizances and that there was no indication as to what kind of monetary pledge Mr. Tomeck’s sureties were prepared to make.
[ 7 ] In the notice of application by Mr. Tomeck before me, the grounds for the application indicated only that “there are no further reasons why the accused should be detained in custody pending his trials.” At the commencement of this hearing, Crown counsel moved to strike the application on the basis that the notice of application did not properly disclose the applicable grounds to grant this court jurisdiction to review the detention order; namely, the application did not indicate that the Justice of the Peace made an error in principle in the first instance or that there has been a material change of circumstances.
[ 8 ] Mr. Tomeck was permitted to amend his notice of application to clarify the grounds upon which he was proceeding. Mr. Tomeck takes no issue with the principles relied upon by the Justice of the Peace in the first instance and relies exclusively on a material change of circumstances as the basis by which his detention should be reviewed, and the terms of his bail changed, to permit him to be released at this time.
[ 9 ] The parties did not address the issue of the fact that pursuant to section 523(2) of CCC , there is jurisdiction for a trial judge to entertain an application for a detention review once a trial has commenced. I assumed this was done because the trials are proceeding in two separate courts and, for reasons of economy and efficiency, it was best to have the matter placed before a single Justice who was not hearing trial evidence.
Background
[ 10 ] The facts alleged by the Crown are as follows. On January 19, 2011, Mr. Tomeck is alleged to have committed a variety of offences in the course of committing armed robbery of the Provincial Alliance Credit Union, near Thunder Bay. The offences alleged include robbery with the use of a firearm, (a sawed off twelve gauge shotgun), pointing a firearm, possessing a firearm for which he did not hold a license, and being masked in the commission of the offence. The Crown relies on the evidence of the bank tellers who will give identification evidence, allegedly based on their prior experience of Mr. Tomeck being a client of the Credit Union. The Crown also relies on evidence from DNA found on a balaclava that was located following the robbery by officers using a police dog. Finally, the Crown relies on the fact that a sawed off shotgun was found in the vicinity of the Credit Union on the morning of the robbery. This weapon was shown to the father of the accused, Mr. Steve Tomeck, who upon viewing the weapon, made statements to the effect that the gun looked exactly like one of his although it had been altered. Some video surveillance evidence and evidence concerning Mr. Tomeck’s activities following the day of the robbery will also be relied upon by the Crown.
[ 11 ] Mr. Tomeck has an alibi to these charges. He claims he was attending a job interview in Schreiber, Ontario at the exact time the robbery occurred.
[ 12 ] Mr. Tomeck was released on a recognizance of bail following his arrest a few days after the robbery. Mr. Tomeck’s surety was his father Steve Tomeck. In addition to containing a no deposit surety of $1,000.00, the recognizance contained a term whereby Mr. Tomeck was not to consume alcohol pending trial. Mr. Tomeck admits that he breached his recognizance by consuming alcohol on August 18, 2011. Mr. Tomeck was released on a further recognizance of bail which included a term that he was to remain in his residence between the hours of 10 pm and 7 am.
[ 13 ] The sexual assault is alleged to have occurred on September 20, 2011 at approximately 3:00 in the morning. Mr. Tomeck admits to having sex with the complainant. However he claims it was on a consensual basis. Mr. Tomeck admits that the fact of the sexual relationship occurring at 3:00 in the morning represented a breach of his curfew.
[ 14 ] At the review hearing before me, the Crown called additional evidence concerning further police investigations that have occurred since the bail hearing on September 30, 2011. The introduction of certain portions of this evidence was objected to by counsel for the accused. I upheld the objections of the defence.
[ 15 ] On this application Mr. Tomeck provided an affidavit and was cross examined on this evidence. Mr. Tomeck testified that he is being held in the Thunder Bay District Jail in conditions that he claims are “somewhat intolerable due to the age of the facility, the volume of prisoners, and lack of space”. Mr. Tomeck points to the fact that both of his trials have commenced and also claims that this fact represents a material change in circumstances. Further, he points to his alibi defence to the robbery allegations and his defence that the alleged sexual assault was in fact consensual as additional grounds for his release.
[ 16 ] Mr. Tomeck also claims a material change in circumstances due to the fact that he has put forward two new sureties. The first is his grandfather Michael Tomeck, who is prepared to commit $50,000.00 without deposit and the second is his aunt, Kim Ann Salamon, who is prepared to pledge $5,000.00 without deposit.
The Standard of Review
[ 17 ] The standard of review is set out by Hill J. in R v. Reid , [2000] O.J. No. 3603 (Sup. Ct.) at para 7 :
“a detention review pursuant to s. 520 of the Code is not a de novo hearing. The application for review must establish an error in principle in the reasoning of the show cause justice and/or a material change in circumstances since the original proceedings”.
[ 18 ] In this matter, the accused has confined himself to the material changes of circumstances put forth for review. Accordingly, the accused must bring before the Court new evidence to alter the assessment of one or more statutory factors set out in the governing section ( R v. Baltovich 2000 5680 (ON CA) , [2000], O.J. No. 987 (C.A.). The change in circumstances must be of such magnitude that the order of the lower court can no longer stand (Mr. Justice Gary T. Trotter, The Law of Bail in Canada , 3 rd ed. Looseleaf (Toronto: Thomson Reuters, 2010), p. 8).
[ 19 ] In argument, the Crown referred to the case of R v. Ferguson, [2002] O.J. No. 1969 (Sup. Ct.) . In that case Justice Hill indicated as follows:
“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: Re Brooks and the Queen , supra at 543-4.
14 On the other hand, while a party disappointed by the result of a show cause hearing cannot simply invoke review to acquire a fresh exercise of discretion or a re-determination of factual findings, the material change in circumstances’ paradigm is not to be so narrowly applied to foreclose any periodic review of the detention status. In Regina v. Saracino (1989), 1989 7197 (ON SC) , 47 C.C.C. (3d) 185 (Ont. H.C.J.) at 187, Doherty J. (as he then was) observed that the bail review provisions “favour flexibility and re-evaluation of an accused’s bail status over finality of any particular order made affecting that status.”
Analysis
[ 20 ] One of the new sureties, Ms. Salamon, indicated that she works as a custodian at Lakehead University and has worked there for many years. She presently works nights from 10:00 p.m. to 6:00 a.m. In light of the admitted breach of curfew by Mr. Tomeck in September, 2011, this is precisely the time when Mr. Tomeck will need to be supervised if his plan for judicial interim release is accepted. Although it is not proposed that Mr. Tomeck live with her, Ms. Salamon clearly will not be available to assist in supervision during the overnight hours. Also I do not find that her offer of a $5,000.00 no deposit surety represents a material change in circumstances. This amount was previously offered by Mr. Tomeck’s father when he was released on the new recognizance in August 2011. That amount of surety was apparently not sufficient to deter Mr. Tomeck from breaking his overnight curfew in September 2011.
[ 21 ] Michael Tomeck agreed that he was available to act as a surety in September 2011. It is also important to me in considering this application that Michael Tomeck is an alibi witness for his grandson in his robbery trial. Michael Tomeck indicated during cross-examination that he loved his grandson, that he is very close to him and that he believes he is innocent.
[ 22 ] Michael Tomeck also testified that should Mr. Tomeck be released, it would be appropriate for him to seek employment with the Canadian Pacific Railroad. There was evidence at the September 29, 2011 hearing that Mr. Tomeck had previous employment with the CPR. This employment took him around the province, and as far away as Windsor. In cross-examination, Michael Tomeck said he would not be concerned if Bradley obtained a job with CPR while on bail, even though he would not be able to supervise him if his job took him out of town. Based on this evidence given by Michael Tomeck, I do not believe that he fully appreciates the nature of the commitment required of a surety. In my view, Michael Tomeck is far too invested in the outcome of this matter and as an alibi witness in this case, is not appropriate to act as a surety.
[ 23 ] There is an additional difficulty with the proposal made by Mr. Tomeck. One of the offences at issue obviously involved a weapon. Presently, at Michael Tomeck’s house where it is proposed Mr. Tomeck will reside, there are several guns that were previously stored at Mr. Tomeck’s father’s home. During the course of his testimony, Michael Tomeck seemed confused about the status of guns but admitted that he had them stored at his house. As of the date of the bail review hearing, the guns had not been moved from his house. Michael Tomeck said that he would take steps to remove the firearms if Mr. Tomeck was released but gave no particulars as to where exactly he proposed to move the guns. I am not satisfied that Michael Tomeck being offered as a surety represents a material change of circumstances. Also, I was not convinced that the proposed new plan is appropriate.
[ 24 ] Overall, in my view, Mr. Tomeck (like the comments in R. v. Ferguson ) has simply attempted to reshuffle the deck in an attempt to draw out new or better sureties. I find that in this case, he has not put forward sufficient evidence to convince me that a material change in circumstances has occurred.
[ 25 ] I also find that the fact that Mr. Tomeck’s two trials have commenced do not, in and of themselves, represent a material change in circumstances. Counsel for Mr. Tomeck did not point me to authority where the mere fact of the trial commencing represented a material change. In my view, in any criminal matter, a trial is always within the contemplation of the parties. Therefore the trial’s occurrence, without any other aggravating factors, such as a lengthy delay between the first bail decision and the commencement of trial, cannot realistically be called a material change. In this case, a trial involving a very serious armed robbery charge has commenced within the year of the alleged offence. As to the second trial which focuses on an equally serious charge of sexual assault, the trial has commenced within two months of the alleged offence. This seems to me to be relatively speedy and therefore the fact of the trial commencing in this case does not represent a material change in circumstances.
[ 26 ] The fact that Mr. Tomeck finds detention in the Thunder Bay District Jail uncomfortable is not surprising. However, it does not, without any other evidence concerning conditions at the District Jail, give me any pause to reconsider Mr. Tomeck’s bail status. In my view, the decision of Justice of the Peace Donio at first instance was appropriate, particularly given the breaches that have been admitted to by Mr. Tomeck. I do not find that a material change of circumstances has occurred and accordingly the application is dismissed.
The Hon. Mr. Justice F.B. Fitzpatrick
Released: February 9, 2012
COURT FILE NO.: CR-11-0070-BR
DATE: 2012-02-09
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – BRADLEY TOMECK Applicant REASONS ON APPLICATION Fitzpatrick J.
Released: February 9, 2012
/nf