COURT FILE AND PARTIES

COURT FILE NO.: 9-13 BR

DATE: 2013-01-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Chad Barber

Applicant

G. Romano, for the Crown

D. Paquette, for the Applicant

HEARD: January 25, 2013

THE HONOURABLE MR. JUSTICE P.B. Hambly

reasons for judgment

Reasons for Judgment

[1] This is an application for review of a detention order issued against Chad Barber by Justice of the Peace Woron on December 14, 2012, after a bail hearing on December 10, 2012. I heard evidence and submissions on January 25, 2013.

The Facts

[2] Chad Barber (Chad) was in a relationship with a woman named Amanda Taylor (Amanda), for about one year. They lived together in a farmhouse, which was owned jointly by Amanda and her mother, Joan Taylor (Joan). Chad has custody of a three-year-old boy named Tristan from another relationship. Chad and Amanda have a baby girl who is about one-year-old. In June 2012, Chad and Amanda separated. Chad's parents, Mac Barber (Mac) and Beverly Barber (Beverly), live close to where Chad and Amanda had been residing. They live in a house on the Grand River north of Cayuga. Chad's parents had assisted Chad for some time in the care of Tristan. Chad and Tristan began residing with Mac and Beverly when Chad separated from Amanda. Amanda and the baby girl moved to Alberta to reside with Joan.

[3] Joan and Amanda listed their farmhouse for sale. The real estate agent noticed what appeared to be an assault rifle in a closet of the house. She reported this to her superior who reported it to the police. The police obtained a search warrant for the residence, which they executed on July 24, 2012. The rifle turned out to be an imitation. However, the police located a stolen, loaded sawed off shotgun under a mattress of a bed located in Chad's bedroom. The police arrested Chad on various charges related to the shotgun including possession of a prohibited firearm, together with readily accessible ammunition capable of being discharged in the firearm and not being the holder of a licence under which he may possess the firearm contrary to section 95(a) of the Criminal Code. Upon conviction, this offence carries a minimum penalty of three years in prison. Chad was released by the officer in charge on a promise to appear on terms that he not be in possession of a firearm.

[4] On November 17, 2012, Chad was driving his father's Volvo station wagon. Jason Arnold (Arnold) was a passenger in the vehicle. He was stopped by the police in a ride program. Upon checking his driver’s licence the police learned that his driver’s licence was suspended for unpaid fines. He was arrested for driving while under suspension. The police searched Chad and the vehicle. In Chad's jacket, the police located a loaded revolver, 14.7 grams of cocaine and over $1,000 in cash. The serial number of the revolver was partially scratched off. Upon searching the vehicle they located zip ties, a crowbar, a debt list, dime baggies, a MAG light, duct tape, two pairs of black latex gloves, a black expandable baton with a rubber grip, brass knuckles, two balaclavas, a ratchet, cutters, binoculars, lock picks, various cell phones, a baseball bat and two knives. Arnold appeared to be extremely nervous. On his person the police located a plastic bag with a white powder like substance resembling cocaine.

[5] The police laid various charges against Chad, including possession of cocaine for the purpose of trafficking, alone and jointly with Arnold, breach of an undertaking and possession of a loaded restricted firearm without being the holder of a licence under which he may possess the firearm contrary to section 95(a) of the Criminal Code. Like the gun charge on July 24, this offence, upon conviction, attracts a minimum sentence of three years. He is charged with additional related offences on July 24 and November 17. The drug charge carries a minimum penalty upon conviction of one year. If Chad was convicted of all the offences related to the events on July 24 and November 17, he would be subject to a minimum sentence of seven years, assuming the sentences were made consecutive and no Charter relief was available to him. Arnold was released.

The Evidence and the Plan for Release

[6] Chad proposes that he be released to reside with his parents and that they be sureties. At the bail hearing he called his parents and his friend Charles Gee as witnesses. Mr. Gee was prepared to employ him and to be a surety. At the bail review, he filed his own affidavit and affidavits from his parents. Each of his parents testified.

[7] Chad is 31 years of age. He completed grade 12 at Cayuga Secondary School. He has always resided in the Cayuga area. His business is the installation of security systems in homes and businesses. He worked for Charles West alarms for one year. The past eight years he has had his own business. Mac and Beverly have been married for 35 years. They have three children. Chad is the oldest. They have a daughter aged 28 and a son age 24. The other two children live in the Cayuga area. Their daughter is married and is an architectural technologist. Their son is a paramedic and a boilermaker.

[8] Mac is 54. He worked for Siemens for 35 years. He retired in July 2011. In his last year of employment with Siemens he earned $65,000. He operated a laser. He has had a computer repair business since 1981. He has an income from this business of about $15,000 per year. He has a LIRA which he values at $175,000. Beverly is 53 years of age. She is a homemaker. She also has an income from the computer repair business of $15,000 per year. Mac and Beverly have owned a house on the Grand River for 34 years. They estimate the value at $320,000. They have a mortgage of $224,000.

[9] Mac and Beverly have assisted Chad in the care of Tristan for some time. They testified that Tristan is close to Chad. Chad and Tristan have lived with them since Chad separated from Amanda from about the middle of June 2012 until Chad's arrest on November 17, 2012. Mac and Beverly are prepared to have Chad live with them and to be sureties for Chad. They are prepared to pledge their entire equity in their house. This would appear to be about $96,000, subject to deduction for the cost of a sale.

The Reasons of Justice of the Peace Woron

[10] The crown did not seek the detention of Chad on the primary ground. Justice of the Peace Woron expressed no concern about the accused’s release on the primary ground. She pointed out Chad's ties to the community. Most important of these ties was his relationship with Tristan.

[11] She was not impressed with the evidence of Charles Gee. She found him to be arrogant. She also found that he did not understand the seriousness of the charges and was disinterested in their seriousness. She found that Mac and Beverly were well-meaning. However, she found that they too did not have sufficient appreciation of the seriousness of the charges. She was concerned that they did not know enough about what was taking place in their son's life. There was a discrepancy in their evidence about the equity in their house. This concerned her. From the breach on November 17 of his undertaking on his release on July 24 not to be in possession of firearms and his driving while his licence was suspended on November 17, she concluded that “there exists a substantial likelihood he would reoffend if released and that that poses a danger to the public”. She held that the tertiary ground also applied. She noted that the evidence satisfied all of the four factors in s. 515(10)(c) of the Criminal Code. She found that in the circumstances, the release of the accused into the custody of his parents, whom she did not regard as "strong sureties", met the tertiary ground.

Analysis

Relevant sections of the Criminal Code

[12] 515 (6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused's detention in custody is not justified, the justice shall order, … that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

(a) with an indictable offence, …

(i) that is alleged to have been committed while at large after being released in respect of another indictable offence …

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution's case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Review of order

Evidence and powers of judge on review

(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.

Standard of Review

[13] In my view, a review of a detention order made at a bail hearing is essentially a trial de novo giving due consideration to the decision of the Justice of the Peace and any changes in circumstances that have taken place. Justice Salhany in R. v. McCue (1996), 1997 10835 (BC CA), 119 C.C.C. (3d) 269 explained the approach that should be followed as follows:

5 This section indicates to me that the review procedure contemplated by section 520 (and by 521 where the application is by the prosecutor) is really a hybrid one in the nature of a fresh hearing as well as a review of the record before the justice: Powers supra; Lebel (1989) 1989 9937 (QC CS), 70 C.R. (3d) 83 (Que. S.C.). Since there is an obligation on the accused to "show cause", the reviewing judge must give due consideration to the discretion of the justice and not substitute his discretion for that of the justice unless it appears that he exceeded his jurisdiction, made an error in law or erred in his appreciation of the facts or the proper inferences to be drawn from the proven facts. However, because the reviewing judge is entitled to hear "such additional evidence or exhibits as may be tendered" by the accused or the prosecutor, it would appear that the decision of the justice should be examined in the light of any new evidence, and in this sense becomes a hearing de novo.

6 In my view, the words "may consider" do not give the reviewing judge discretion to refuse to hear evidence which the accused may wish to tender on the review. The words are not "may accept" but "may consider". Whether the additional evidence or exhibits tendered by the accused or prosecutor will affect the judge's decision to vacate the order of the Justice of the Peace or dismiss the application will depend upon the merits of that application.

[14] Justice Hill, who asserted a more stringent standard in R. v. Ferguson, [2002] O.J. No. 1969 also stated in that case at para. 14 “the material change in circumstances paradigm is not to be so narrowly applied as to foreclose any periodic review of the detention status." In R. v. Saracina (1989), 1989 7197 (ON SC), 47 C.C.C. (3d) 185 (Ont.C.A.) Justice Doherty, as he then was, held that the bail review provisions "favour flexibility and re-evaluation of the accused's bail status over finality of any particular order made affecting that status." See also the decision of Justice McIsaac in R. v. McFarlane, [2003] O.J. No. 5327 where he stated at para. 1 “I remind myself that a review under s. 520 involves an exercise by me of an independent discretion” and the analysis of Justice Durno in R. v. Budge, [2012] O.J. N. 2538 at paras. 22, 31, 32 and 33.

Errors in Reasoning in Bail Decision

[15] In my view, respectfully, the Justice of the Peace erred in not distinguishing the factors that might be applied to release of the accused on bail from the factors that would apply on sentence after conviction for very serious offences. This concept was well articulated by Chief Justice McEachern of the British Columbia Court of Appeal in R. v. Nguyen (1996), 1997 10835 (BC CA), 119 C.C.C. (3d) 269 as follows:

16 Considering bail applications with the public in mind can mean different things in different contexts. In some cases, it may require concern for further offences. In other cases, it may refer more particularly to public respect for the administration of justice. It is clear, however, that the denial of bail is not a means of punishment. Bail is distinct from the sentence imposed for the offence and it is necessary to recognize its different purpose which, in the context of this case, is largely to ensure that convicted persons will not serve sentences for convictions not properly entered against them.

[16] It is also my view, respectfully, that she erred in invoking the tertiary ground to detain the accused. She had already held that it was necessary to detain him on the secondary ground. There was no need to go to the tertiary ground. She made no reference to the principle that the tertiary ground is to be used “sparingly” and then only when there is no need to detain the accused on either the primary or the secondary ground. She also made no reference to the principle that before the tertiary ground is invoked the court must be satisfied that a reasonable member of the community would think that it was necessary to do so.

[17] In R. v. Hall (2002), 119 C.C.C. 93d) 269 the Supreme Court of Canada, by a majority judgment of 5 to 4, struck down a portion of section 515 (10)(c) which permitted detention of an accused “on any other just cause being shown” but upheld the remainder. In the majority decision Chief Justice McLachlan stated the following:

41 This, then, is Parliament's purpose: to maintain public confidence in the bail system and the justice system as a whole. The question is whether the means it has chosen go further than necessary to achieve that purpose. In my view, they do not. Parliament has hedged this provision for bail with important safeguards. The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), 1997 10835 (BC CA), 119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about "the philosophy of the legislative provisions, Charter values and the actual circumstances of the case" (p. 274). For these reasons, the provision does not authorize a "standardless sweep" nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad.

[18] The Court of Appeal in the judgment of Justice Rosenberg in R. v. R. D., 2010 ONCA 899 explained these concepts further as follows:

51 Beginning with Hall, courts considering the tertiary ground have held that it is to be used sparingly. This is hardly surprising given the fact that it is invoked only where the accused has already been considered a suitable candidate for release on the usual considerations of attendance in court and likelihood of commission of further offences. After adopting, at para. 27, a statement from an earlier case that detention is justified on the tertiary ground only in "relatively rare" cases, McLachlin C.J. said, at para. 31 of Hall:

• While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available. [Emphasis added.]

52 It is unnecessary to review at length the various ways in which courts since Hall have attempted to implement this principle of sparing use of the tertiary ground. Application of this principle has proved most problematic in murder cases because such cases by definition meet the second and fourth criteria set out in s. 515(10)(c), gravity of the offence and potential liability to a lengthy prison term. Thus, application of the tertiary ground in murder cases will turn on the apparent strength of the Crown's case and the circumstances surrounding the commission of the offence. As to the latter factor, some courts have employed the idea of "something more" than the fact of the killing. The "something more" language originates in a helpful pre-Hall decision of the Saskatchewan Court of Appeal, in R. v. Blind (1999), 1999 12305 (SK CA), 139 C.C.C. (3d) 87. Jackson J.A. said, at para. 13, that it is not enough that the crime is extremely grave, that there is potential for a lengthy term of imprisonment and that the offence has the features of any violent crime - "More is required." The idea of something more is consistent with Hall itself where McLachlin C.J. referred to the high level of concern in the community and the horrific nature of the crime. In Hall, the accused was charged with first degree murder of a relative. The perpetrator had slashed the victim 37 times and attempted to cut her head off. The "something more" language has been picked up by Cronk J.A. of this court in R. v. LaFramboise (2005), 2005 63758 (ON CA), 203 C.C.C. (3d) 492. Yet even where the circumstances of the offence are particularly egregious, as they were in LaFramboise, other factors may be consistent with release because, as in LaFramboise, the Crown's case was not particularly strong and the accused had limited involvement in the offence.

53 It must be recognized, however, that the "something more" language is simply a way of emphasizing the need for sparing use of the tertiary ground as a basis for detention. The tertiary ground is not limited to what a court can imagine to be the most heinous of offences and can be invoked where the circumstances fall short of the horror and community concern noted in Hall: (citations omitted)

Loaded Guns and Drugs

[19] The combination of evidence of an accused trafficking in cocaine and possession of a loaded firearm is clearly of grave concern for harm to innocent members of the public going about their daily business. However, there is no rule that this combination must automatically lead to the denial of bail. An accused is entitled to the presumption of innocence and reasonable bail as guaranteed by sections 11(d) and (e) of the Charter. He is entitled to be released if he satisfies the onus placed upon him by the Criminal Code as interpreted by the leading cases. Cases where an accused was released on a bail review by a Superior Court Judge where there was evidence of him being in possession of a loaded firearm or with ammunition readily accessible and cocaine for the purpose of trafficking in support of charges against him are the following: R. v. A.B., 2006 2765 (ON SC), [2006] O.J. No. 394, (guns only) a decision of T. Ducharme J.; R. v. Barnes, [2006] O.J. No. 2828, a decision of G. Trotter J. and R. v. Budge, [2012] O.J. No. 2538, a decision of S.B. Durno J.

Duties of a Surety

[20] Justice Ewaschuk in R. v. Kevork, [1984] O.J. No. 928 (Ont. S.C.J.) outlined the duty of a surety in ensuring compliance by the accused with the first two grounds on which an accused can be detained. He stated the following:

The obligations of a "civilian jailer" obviously involve strict supervision of the released, both in the sense of ensuring that the accused commits no further crime while released and that he appears in Court when required ...

... A surety must be a friend or neighbour of the accused who is willing to place his trust and risk his property in his belief that the accused will comply with his release conditions (see s. 705 re forfeiture of recognizance and surety becoming judgment debtor of the Crown). Being a surety, moreover, involves the notion of strict supervision over the accused in the sense that the surety is entitled, pursuant to ss. 700-701, to render the accused in custody when the surety is of the opinion that he has lost confidence in the ability and desire of the accused to honour his release conditions.

Material Change in Circumstances

[21] In my view there has been a material change in circumstances. If Mac and Beverly did not realize the full extent of the seriousness of the charges against their son at the time of the bail hearing they certainly do now. To secure the release of their son, they are still prepared to pledge the entire equity in their house. They are in their mid-50s. Mac is retired. This consists of their entire life savings. These people are hard-working, law-abiding and responsible citizens. According to them, their other two children are as well. Charles Gee is no longer being proposed as a surety. He was found to be unsuitable as a surety by the Justice of the Peace. On the basis of the transcript of his evidence, I agree with her. Without Charles Gee, as Mr. Paquette put it, “less is more". I am satisfied that Mac and Beverly understand their obligations as sureties as explained in Kevork.

[22] Chad has no criminal record. He has had no prior experience in the penal system. Detention at the Wentworth Detention Center in Hamilton, which is where he has been for over three months, for someone who was never previously been incarcerated would be a grim experience. He has been away from his family, his son and his daughter throughout this time. Denial of contact with family for this length of time and the prospect of a much longer period of denial in the event of a breach of a term of his release will have a substantial deterrent effect.

Result

[23] It is agreed that the primary ground does not apply. On the secondary ground, Chad has satisfied me that his detention is not necessary for the protection or safety of the public, including any substantial likelihood that he will, if released from custody, commit a criminal offence or interfere with the administration of justice if he is released with his parents as sureties in substantial penal amounts without deposit. In my view in this case it is not necessary to consider the tertiary ground.

[24] Although I am confident that Chad will abide by the terms of his release, I am not going to permit Mac and Beverly to pledge their entire life savings. The amount that I will set will be substantial, but less than the entire equity in their house.

[25] Chad Barber will be released on the following terms:

That he enter into a personal recognizance in the amount of $10,000 without deposit.
That there be two sureties, namely, Mac Barber and Beverly Barber, jointly and severally in the amount of $35,000, without deposit.
That he reside at the residence of Mac and Beverly Barber at 910 Haldimand, Hwy 54 Cayuga N0A 1E0.
That he abide by the rules and regulations of their household.
That he report every second day to the nearest police station between the hours of 8 a.m. and 10 a.m.
That he not be out of his residence other than in the company of Mac or Beverly Barber or a person designated by one of them in writing.
That he not be in the possession of a cell phone or weapons.
That he work with Mac Barber as directed by him at his residence and with anyone else away from his residence as authorized by Mac Barber in writing.
That he be in his residence between the hours of 8 p.m. and 8 a.m. unless at a place of employment or going to and from a place of employment as authorized by Mac Barber or Beverly Barber in writing.
That he attend court as required.

[26] I will receive submissions in writing on any modification of these terms or any additional terms that counsel believe to be appropriate. Counsel may provide these submissions by email with a copy to the opposing side at the following email address:

Peter.Hambly@scj-csj.ca.

Justice Peter B. Hambly

Released: January 28, 2013

COURT FILE NO.: 9-13BR