Court File and Parties

COURT FILE NO.: DR 7815 and BR 7840

DATE: 2013-06-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Binag

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL: A. Rajna, for the Crown C. Kostopoulos, for the Accused

HEARD: June 19, 2013

ENDORSEMENT ON BAIL REVIEW

Nature of the Application

[1] The accused has brought an Application pursuant to s. 520(1) of the Criminal Code of Canada for review of the Order of Justice of the Peace Radulovic dated January 29, 2013 denying his interim release pending trial.

Background

[2] At the time of the original application before the Justice of Peace the accused was charged with four counts of automobile theft as well as various drug offenses. Due to the existence of the drug charges, the reverse onus provision set forth in section 516(6) (d) applied on the original application.

[3] All of the drug charges against the accused have now been withdrawn. The Crown therefore acknowledges that there has been a material change in circumstances since the hearing of the original application and the ruling by Justice of the Peace Radulovic, and that the reverse onus provision no longer applies. The onus therefore rests on the Crown to show cause that the detention of the accused in custody is justified on one or more of the grounds set forth in subsection 515(10) of the Criminal Code.

[4] With respect to the remaining charges, it is alleged that the accused was the principal participant and organizer of a sophisticated car theft enterprise in which he directed and paid an accomplice to rent motor vehicles or take motor vehicles on test drives from dealers, during which duplicate keys were made, enabling the perpetrators to return to the establishments involved to steal the vehicles. Following the thefts, the VIN numbers on the vehicles were changed and the vehicles sold.

[5] Justice of the Peace Radulovic rested her decision to deny interim release on the secondary ground set forth in para. 515(10)(b), namely that detention is necessary for the protection or safety of the public having regard to all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offense or interfere with the administration of justice.

[6] The Crown, on the present Application, continues to rely only on the secondary ground and agrees that the primary and tertiary grounds set forth in paras. (a) and (c) of section 515(10) are not pertinent.

Evidence

[7] Counsel for the accused called no fresh evidence on the hearing of the present Application but rather relied on the record of the proceeding before Justice of the Peace Radulovic, consisting of the examination in chief and cross-examination of the proposed surety, being the accused’s mother Surinder Binag, as well as a copy of his criminal record and other documentary exhibits. Neither side took issue with any of the findings of fact of the Justice of the Peace. In her Reasons, Justice of the Peace Radulovic found that the plan proposed by the accused for his supervision pending trial was insufficient to address the concerns on the secondary ground. In particular, she found that the accused's mother, although well-meaning, does not have effective control over the accused and considering the history of the accused’s criminal record and his past conduct, she was not satisfied that he will have any respect for his mother and comply with the rules of her residence, and accordingly, she will not be able to effectively supervise him.

[8] The accused continues to propose his mother as his surety, but submits that there has been a change of circumstances on three bases which should be considered on the review. First, as indicated above, the reverse onus provision no longer applies, thereby requiring the Crown to show cause why continued detention is justified. Second, whereas the accused’s mother proposed to pledge $50,000 on the original application, she is now prepared to pledge $150,000-$200,000 backed up by equity in her home estimated by her to be in the sum of approximately $325,000, thereby increasing the incentive on her, as surety, to ensure that the accused abides by the terms of his release and on the accused to do so. Third, and perhaps most importantly for the purpose of the Application, the accused proposes that his release be subject to a condition of effective house arrest supported by a requirement to wear electronic monitoring equipment under a privately-contracted monitoring arrangement, which would provide additional support to his mother, as surety, in her supervision of him.

[9] As indicated on her earlier examination, the accused's mother has acted as surety for him on five or six previous occasions. She is 69 years of age, is not employed, and is not conversant in the English language. She resides in the home owned by her, referred to above, with her husband, the accused, the accused's spouse and their three children, and her other son. The home is in a rural area, approximately 10 km away from the nearest settlement.

[10] The Crown, on this Application, introduced documentation showing that the accused committed serious criminal offenses, to which he subsequently pleaded guilty, while subject to a house arrest condition to an interim release order and while under the supervision of his mother, as surety. At that time she had initially pledged $7,500, which was later increased to $17,500. On her cross examination on the application before Justice of the Peace Radulovic, the accused's mother professed no knowledge of the accused having been charged with criminal offenses committed while he was under her supervision as surety, which is indicative of her lack of ability to discharge her supervisory duties as a surety.

[11] The accused is 48 years of age and has a lengthy criminal record commencing with a conviction in the Youth Court in 1990, and continuing through to 2008. In 2012 he was convicted of simple possession of marijuana. His convictions in adult court from 1994 to 2008 were frequent and regular, with convictions in 1994, 1996, 1997, 1998, 2001, 2004, 2005, 2006, 2007 and 2008. They included crimes of dishonesty, such as possession of stolen property, theft, personation with intent and uttering a forged document, as well as crimes against the administration of justice, including failure to comply with a probation order, obstructing a peace officer, obstructing justice, and failure to comply with a recognizance. There were also convictions for dangerous operation of a motor vehicle as well as for possession of a controlled substance. Justice of the Peace Radulovic found that a majority of the convictions on the accused's record relate to theft of motor vehicles or possession of stolen motor vehicles, being offences of the same or similar nature as the charges which he is currently facing.

[12] The evidence on the original application indicated that, at the time of his arrest, the accused and his family denied entry by the police to their residence under warrant, requiring the police to effect a forced entry, and the accused was found attempting to destroy evidence consisting of documentation relating to motor vehicles and motor vehicle keys. Significantly one of the documents which the accused was found attempting to destroy was an instruction manual on how to override security systems on motor vehicles.

[13] On cross examination, the accused's mother, Surinder Binag, admitted having very little knowledge of the accused's activities and habits and where he gets his money. She testified that she had, on numerous occasions, prevailed upon the accused to stop his criminal behaviour, but admitted that he repeatedly broke promises to her to do so, and that she cannot rely upon what he tells her.

Analysis

[14] On the basis of the evidence, I agree with the conclusion reached by Justice of the Peace Radulovic that there is a substantial likelihood that, if the accused is released, he will commit further criminal offenses or interfere with the administration of justice. I also agree with the observations which supported her conclusion in that respect, namely that the accused's lengthy criminal record is a good indicator of his future behaviour and presents a pattern of behaviour to repeatedly commit the same type of offense.

[15] The conclusion reached by Justice of the Peace Radulovic that the plan proposing supervision of the accused by his mother, as surety, was inadequate to address the concerns under the secondary ground was amply supported by the evidence on the original application. This conclusion is substantially bolstered by the additional evidence presented by the Crown on the hearing of the present Application relating to the accused’s commission of criminal offences while on interim release under his mother’s supervision.

Issue

[16] The question for determination is therefore whether the new plan providing for a substantial increase in the monetary pledge to be provided by his mother, and the addition of a condition requiring electronic monitoring, is sufficient to address the concerns under the secondary ground and to support a finding that the Crown has not satisfied the onus on it to demonstrate that the continued detention of the accused is justified.

Proposed Increase in Security

[17] With respect to the proposal to increase the amount of the recognizance, it is to be observed that the accused has already demonstrated a willingness to put his mother’s financial welfare at risk by committing serious criminal offenses while under her supervision as surety. It is also observed that forfeiture of the amount pledged by a surety, upon breach of a bail condition by an accused, is not automatic and that a number of factors are required to be taken into account, including the level of control the surety had over the accused's behaviour, and whether the surety assisted the accused in defaulting (see United States of America v. Le (2010), 2010 BCSC 1653, 264 C.C.C. (3d) 544 (B.C. S.C.) at para. 17). Presumably, a lack of control of the surety over the accused will be a factor weighing against the imposition of an order of forfeiture following a breach.

[18] In my view, the ability and authority of the proposed surety to discharge the obligations and exercise the powers of a surety are more important than the amount of the monetary pledge. The accused has demonstrated, by his conduct, that his mother has no influence or control over him and has no ability to curtail his criminal activities. By any measure, a pledge of $10,000 or $17,500 would be considered to be a substantial amount for any but the most well-off in our society. There is no evidence that the lack of control of the proposed surety over the accused is due to an inadequate financial incentive on her to exercise such control. Rather, her lack of control appears to derive from the nature of the relationship between them. Moreover, the accused has demonstrated, by his previous conduct, a willingness to put his mother's financial well-being at risk. There is nothing to suggest that he would be less inclined to do so if the amount of her pledge were increased. In short, if he cannot be trusted for a smaller amount, how can he be trusted for a larger amount? I would not give effect to the cost/benefit argument advanced by counsel for the accused that a substantial increase in the pledge amount would mean a corresponding increase in the number of car thefts which the accused would have to commit in order to justify imposing a risk of forfeiture on his mother, and would thus act as a disincentive to him committing such offenses.

Electronic Monitoring

[19] As indicated above, the accused has proposed that his interim release be subject to a condition of house arrest supported by the wearing of an electronic monitoring device supplied by Jemtec Inc., a leading provider of electronic monitoring services approved by various courts across Canada, including Ontario.

[20] The case law appears to indicate that electronic monitoring is most often considered in the context of extradition proceedings where the primary ground under section 515(10) of the Code is most relevant. There appears to be little guidance in the authorities on any specific principles respecting electronic monitoring which may be relevant where the secondary ground is in issue.

[21] In the case of United States of America v. Pannell, [2004] O.J. No. 5715 (SCJ), upheld on review [2005] O.J. No. 10 (C.A.), Nordheimer, J. made the following observations at paras/ 37 and 38:

Two aspects of this electronic monitoring system must be emphasized. One is that, as JEMTEC itself is at pains to point out, the monitoring system does not restrict the subject's movements in any way. In other words, the monitoring system does not restrict the subject from breaching any conditions of his or her release. It merely alerts JEMTEC if the subject moves beyond a designated area. The other is that the system does not assist in locating the person, if he or she leaves the monitored area without permission. In other words, there is no global positioning component to the system that would permit JEMTEC to be able to immediately pinpoint the exact location of the person if a violation of the monitored requirement occurs.

In this regard, therefore, the electronic monitoring is not appreciably different than a capable surety who is designated to monitor a person's compliance with a condition of house arrest as a term of his or her release and to report a breach of that condition. The surety, however, has a couple of advantages to the electronic monitoring. One is that the surety can distinguish between advertent and inadvertent breaches of the monitoring area. Another is that the surety can contact the appropriate authorities directly in case of a breach whereas the electronic system notifies JEMTEC who must then notify the authorities after following the procedures I have described.

[22] On review of the ruling by Nordheimer, J. at the Court of Appeal, MacPherson J.A., at para. 33, emphasized that each case involves a “constellation of factors”, which may include a proposal for electronic monitoring. Therefore the role which electronic monitoring may play in addressing concerns relating to the grounds under section 515(10) will depend upon the circumstances of each case.

[23] Implicit in Justice Nordheimer’s observations is the fact that electronic monitoring, which has acknowledged limitations, is no substitute for a capable surety who would have the ability and authority to adequately supervise the accused while on interim release.

[24] In this case, all that an electronic monitoring device is capable of doing is to alert the service provider Jemtec Inc. should the accused leave the residence. It does not otherwise provide the degree of supervision and control which a capable surety is obliged to exercise over the activities of the accused. Given the degree of sophistication involved in the offenses alleged against the accused in this case, including the use of accomplices, it is not difficult to see that the accused would have the ability to engage in criminal activity through the use of various modes of communication, including personal attendance of accomplices at his residence and by cell phone communication, in spite of the existence of electronic monitoring. The offer to disable the family’s internet service does not ameliorate this risk. On cross-examination on the original application, the accused's mother indicated that she retires at 8 PM each evening and is hard of hearing, and accordingly she is not in a position to be aware of the accused's activities in the late evening and throughout the night.

[25] In my view, having found that the proposed surety lacks the authority and ability to adequately supervise the activities of the accused, and in the face of the substantial risk that the accused will commit criminal offenses while on interim release, the proposal for electronic monitoring does little, in consideration of the "constellation of factors" in this case, to address the real and substantial concerns relating to the secondary ground.

Disposition

[26] The Application of the accused for an order releasing him from custody is therefore dismissed.

D.A. Broad J.

Date: June 25, 2013