ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO: 13-07890 and 13-07891

DATE: 20140219

BETWEEN:

Her Majesty the Queen

Applicant

– and –

Benjamin Bonsu

Respondent

Robert Scott, for the Applicant

Susan Von Achten, for the Respondent

HEARD: February 3, 2014

REASONS FOR Decision

DOUGLAS J.:

[1] This is an Application by the Crown for an order pursuant to Section 521 of the Criminal Code cancelling a Judicial Interim Release Order made by Justice of the Peace D. Clark on October 27, 2013 and ordering that the Respondent be detained in custody.

Facts

[2] The Respondent is charged with the following offences:

(a) possess substance for purpose of trafficking contrary to Section 5(2) CDSA;

(b) possess substance contrary to Section 4(1) CDSA,

(c) possess firearm with altered serial number contrary to Section 108(2) Criminal Code of Canada;

(d) possess firearm in a motor vehicle contrary to Section 95(2) of the Criminal Code of Canada;and

(e) possess prohibited loaded firearm contrary to Section 94(2) of the Criminal Code of Canada.

[3] It is alleged that on October 26, 2013 the Respondent was in possession of a loaded handgun, 14 bags of cocaine (7.1 grams) and a very small amount of marijuana (.4 grams).

[4] The Respondent appeared in Bail Court on October 27, 2013 and after a contested bail hearing he was released on a recognizance in the amount of $40,000.00 without deposit with sureties Manuela-Maria Rosanova in the amount of $5,000.00 without deposit and Osei Bonsu in the amount of $35,000.00 without deposit and subject to the following additional terms:

(a) Reside at 30 Deforest Drive, Brampton, with your fiancé.

(b) Notify Officer Turner #738 or designate at 4 District of York Regional Police of any change of address, employment or occupation in writing, at least 48 hours prior to such change.

(c) Observe a curfew: be in your place of residence at all times except while with one of your sureties and for purpose of travel directly to and from and while at employment at Thyssen Krupp at 255 Orenda Road, Brampton.

(d) Abstain from communicating, directly or indirectly with Anthony Denroy Black and Maxwell Imoh except through legal counsel.

(e) Not attend at or within 100 metres of the known place of residence, employment or education of Anthony Denroy Black and Maxwell Imoh.

(f) Abstain from the consumption or possession of non-medically prescribed drugs or narcotics.

(g) Not possess, until dealt with according to law, any firearm, cross-bow prohibited weapons, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, according to law.

(h) Not possess or apply for any authorization, licence or registration certificate relating to the above named items.

(i) The weapons referred to above that are in possession of the accused and every authorization, licence and registration certificate held by the accused relating thereto shall be: none declared.

[5] During the bail hearing the Respondent testified as follows:

(a) On October 26, 2013 he attended a funeral.

(b) He knew the brother of the deceased but not the deceased himself.

(c) The deceased had been murdered by gunshot.

(d) He was concerned about the people who would be attending the funeral so he wore a bullet proof vest to the funeral.

(e) He was arrested driving away from the funeral still wearing the bulletproof vest.

(f) The vehicle that he was driving belonged to his fiancé. Only she and he had keys to the car and only they used the car. No one else had access to the car to his knowledge. The car was not used by others and they have owned it for about 2 years.

(g) He denied any knowledge of the gun or drugs found in his car. He could not explain how a loaded firearm and drugs ended up in his car and more specifically in his Samsung case under the car seat.

[6] Information from the police, provided on consent at the bail hearing was as follows:

(a) The police were monitoring the funeral.

(b) An employee of the cemetery told one of the police officers that he saw a man that the funeral who had a gun in his waistband. The cemetery worker gave a description of the gunman to the police officer.

(c) After the funeral concluded, police officers stopped a vehicle as it left the cemetery. It was being driven by the Respondent who fit the description provided. Additional passengers were Anthony Black, Maxwell Imoh and Imoh’s five-year-old son.

(d) In the trunk of the car police found a loaded handgun. The serial number on the gun had been removed or altered.

(e) Under the seat in the car the police found cocaine packages that appeared ready for sale in a Samsung Galaxy case that the Respondent admitted belonged to him.

(f) In the centre console of the car the police found a small amount of marijuana and a grinder (for marijuana).

(g) In the Respondent’s pocket was about $600.00 in cash.

[7] The Respondent has a criminal record as follows:

(a) 2004 possession of a scheduled substance, 30 days after pre-trial custody;

(b) 2006 possession of a schedule 2 substance, fined;

(c) 2007 robbery, after 15 and a half months of pre-trial custody he was sentenced to an additional 13 months and received his first weapons prohibition order pursuant to Section 109 of the Criminal Code;

(d) 2007 robbery, 60 days in jail and a further Section 109 order;

(e) 2008 obstructing police.

[8] There are no outstanding charges apart from those that are the subject of the recognizance of bail in this Application.

[9] This was a reverse onus bail hearing and the onus was on the Respondent to establish why he should be released as required by Section 515(6)(d) of the Criminal Code.

[10] The witnesses at the bail hearing consisted of the Respondent, the Respondent’s father as proposed surety and the Respondent’s fiancé as proposed surety.

[11] The Crown sought detention on the secondary and tertiary grounds.

The Crown’s Position

[12] It is the Crown’s position that:

(a) The justice of the peace erred in concluding that the Respondent’s detention was not necessary for the protection or safety of the public. He did not apply the tests set out in Section 515(10)(b) to the evidence presented at the bail hearing and failed to give adequate reasons.

(b) The justice of the peace erred in concluding the proposed plan of supervision was sufficient to satisfy the secondary grounds. The plan that was accepted and put into the bail order allows the Respondent to be out of his residence, unsupervised for up to 11 hours a day 6 days a week so that he can continue to work.

(c) Regarding the tertiary grounds, the justice of the peace:

(i) Failed to give adequate reasons for releasing the Respondent.

(ii) Erred in principle in his application of the tertiary grounds as set out in Section 515(10)(c) of the Criminal Code.

(iii) Failed to consider the special nature of a loaded firearm.

The Respondent’s Position

[13] The Respondent submits that:

(a) There is no evidence to support detention on the primary or secondary grounds.

(b) The Respondent has no convictions for breach of recognizance.

(c) Regarding the tertiary grounds, detentions are to be based upon the tertiary grounds only in the rarest of cases.

(d) The involvement of a firearm in the allegation does not necessarily preclude bail.

(e) There are weaknesses in the Crown’s case including an illegal stop and illegal search of the Respondent’s vehicle followed by failure to give rights to counsel at the earliest opportunity and the possibility that the police or other third party planted the evidence in the Respondent’s vehicle.

The Law

[14] Section 515(1) provides as follows:

...where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.

[15] Section 515(2)(c) provides as follows:

When the justice does not make an order under subsection (1) he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security.

[16] The reverse onus is established by virtue of Section 515(6).

[17] Section 515(10) provides in essence as follows:

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, 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) On any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

[18] Pursuant to 521 of the Criminal Code the prosecutor may, at any time before the trial of the charges, apply to a judge of review an Order made under Section 515(1) or (2).

[19] A bail review must be conducted with due consideration for the initial order but with an independent discretion to be exercised by the review court. (See R. v. Xaysy [2006] OJ 1817 SCJ). Bail can be denied under the tertiary ground only in limited circumstances. (See R. v. Hall 2002 SCC 64, [2002] 3 SCR 309).

[20] At the end of the day the judge can only deny bail if satisfied that in view of [the factors listed in Section 515(10)(c)] and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. (See Hall).

[21] The accused must show that his detention is not necessary to maintain confidence in the administration of justice. It is the confidence of a reasonable, informed and dispassionate public that provides the measure of this ground.

Analysis

[22] As indicated above, while this review must be conducted with due consideration for the initial order, it must also be conducted with independent discretion to be exercised by the review court. It is not necessary for me to conclude that the learned justice of the peace erred in his decision at the original bail hearing.

[23] The submissions upon this Application have focused on the tertiary grounds under Section 515(10)(c) and accordingly I will similarly restrict my reasons.

[24] I should also note that my initial review of the terms of the recognizance of bail outlined above in respect of curfew led me to the initial conclusion that the Respondent was prohibited from being outside his place of residence at any time and essentially for any purpose except while accompanied by one of his sureties, including while at his place of employment. This I believe is a fair reading of the wording contained in the recognizance of bail. I raised this point with counsel during submissions on this Application and I am advised that it is common ground between counsel that this term of the recognizance arises from the reasons of the learned justice of the peace at page 123 of the transcript of the bail hearing which, confirms that it was the Court’s intention of the court’s to allow the Respondent to be away from home if accompanied by a surety or while he was at work, and while at work the attendance of a surety was not required. I accept this agreement for the purposes of this Application.

[25] I have reviewed the evidence contained in the transcript at the bail hearing and conclude that the Judicial Interim Release Order is largely consonant with the evidence and law described above; however, the evidence at the bail hearing which suggests that the Respondent was in possession of a firearm “in his waistband” at a funeral of a murdered gang member while the Respondent was wearing a bullet proof vest suggests that the Respondent had prepared himself to engage in a gun fight. It is not particularly important whether his actions were designed to be defensive in nature, as he suggested in his evidence at the bail hearing. The readiness to participate in such behaviour, whether defensive or offensive, is extremely concerning and may well in some circumstances be sufficient in justifying serious consideration of a denial of bail on the tertiary grounds.

[26] Having said that, I cannot conclude in light of the authorities that the tertiary grounds require that bail be denied in circumstances where a firearm is involved, notwithstanding the observations of the Supreme Court regarding firearms in R. v. Felawka (1993) 1993 36 (SCC), 85 C.C.C. (3d) 248 (cited at paragraph 34 of the Applicant’s Factum).

[27] In my view, the Crown’s concerns can be addressed, and the public’s confidence in the administration of justice can be maintained, by the Respondent entering into a recognizance of bail upon the same terms and conditions as previously ordered but he will also be required to wear an electronic monitoring device (such as that provided by Recovery Science Corporation) with his residence at 30 Deforest Drive, Brampton, and his place of employment at Thyssen Krupp at 255 Orenda Road, Brampton, being designated included zones, with leave to travel between his residence and place of employment solely for the purpose of engaging in employment.

[28] The Respondent shall forthwith attend court to enter into a recognizance of bail as directed herein.

[29] If necessary, I may be spoken to should there be any need to clarify the terms of this Ruling.

________________________________________ Justice P. Douglas

Released: February 19, 2014