CITATION: R. v. Land 2015 ONSC 2030
COURT FILE NO.: CR-15-004-BR
DATE: 2015-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Williams, for the Crown
- and -
Merrill Land
R. Amy, for the Defendant
Accused
HEARD: March 27, 2015 at Kenora, Ontario
Mr. Justice J.S. Fregeau
ENDORSEMENT ON BAIL REVIEW
INTRODUCTION
[1] This is an application by Mr. Land (the “applicant”), pursuant to s. 520 of the Criminal Code, for a review of the detention order made by His Worship, Justice of the Peace R. McNally, at a judicial interim release hearing on November 28, 2014. At this hearing, the Crown sought a detention order based on the secondary ground. The Justice of the Peace detained Mr. Land in custody, based primarily on his assessment of the strength of the Crown’s case against Mr. Land and his criminal record.
NATURE OF THIS REVIEW
[2] It is well established that what is referred to as the “hybrid model” is the proper approach to follow on a s. 520 bail review application. The principles of review were stated as follows by Hill J. in R. v. Reid, [2000] O.J. No. 3603 (S.C.J.), at paragraph 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 reasons of the show cause justice and/or a material change in circumstances since the original proceedings.
BACKGROUND
[3] Mr. Land is charged with robbery, contrary to s. 344(1)(b) of the Code, breach of probation, contrary to s. 733.1(1) of the Code and possession of a controlled substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act. All charges relate to a single incident. Mr. Land, together with three co-accused, is alleged to have physically assaulted a Mr. Dhine and stolen money from him. The incident is alleged to have occurred on November 5, 2014 at approximately 10:00 p.m. on a footbridge which serves as a pedestrian overpass of the C.P.R. tracks in downtown Kenora.
[4] The essence of Mr. Land’s bail plan at the bail hearing was that he would reside with his mother in the Minto area of Kenora. His mother was prepared to act as a surety. He did not have employment or employment prospects at the bail hearing. Mr. Land proposed that he be required to abide by a strict curfew and be subject to curfew checks at his mother’s residence.
[5] The Justice of the Peace expressed concern that Mr. Land was to reside in the Minto area, an area recognized to be a high crime area in Kenora. The Justice of the Peace also expressed concern that Mr. Land had no employment and no alcohol and/or drug treatment plan, despite having testified to having both a drug and alcohol dependency problem. The Justice of the Peace found the Crown’s case against Mr. Land to be “sufficiently strong”, identifying blood found on Mr. Land upon arrest and video evidence confirming his presence at the scene as two elements of the Crown’s case.
[6] The court rejected Mr. Land’s mother as an acceptable surety. The Justice of the Peace held that “the strongest argument against release” was Mr. Land’s “criminal record of convictions for numerous cases of disobeying court orders.
THE POSITION OF THE APPLICANT
[7] The applicant submits that the Justice of the Peace erred in finding that the Crown had a strong case against Mr. Land. The applicant further submits that there has been a change in circumstances regarding Mr. Land since the original bail application. It is submitted that the bail plan proposed today differs in a material respect from that proposed on November 28, 2014. Specifically it is proposed that Mr. Land be released from custody and be required to reside with his grandfather and brother in the First Nation community of Grassy Narrows and be subject to a curfew and curfew checks.
[8] A trial date of May 7, 2015 has now been set. Counsel submits that the proposed plan of release is sufficient to address any concerns the court may have regarding the secondary ground for the short period of time between now and the trial date.
THE POSITION OF THE CROWN
[9] The Crown submits that the Justice of the Peace did not err in finding the Crown’s case against Mr. Land to be strong. The Crown advises the court that forensic DNA analysis has now confirmed that blood on the cuff of Mr. Land’s “hoodie” at the time of arrest is that of the robbery complainant. This is conceded by defence counsel. The Crown also submits that there is evidence of other blood on various locations on Mr. Land’s person, not yet analyzed or otherwise confirmed to be that of the complainant.
[10] The blood evidence, the evidence of the complainant and video evidence of the incident are suggested by the Crown to establish a strong case against the applicant, consistent with the finding of the Justice of the Peace.
[11] The Crown further submits that the bail plan proposed by the applicant on this application does not establish a change in circumstances justifying a review of the original denial of bail. The Crown submits that the only material change in the respective bail plans is that the applicant is now proposing that he be released to live with his grandfather in Grassy Narrows rather than with his mother in the Minto area of Kenora, the latter neighborhood having been identified as problematic by the Justice of the Peace.
[12] The Crown submits that this release and residence plan is tantamount to the applicant “jumping out of the frying pan into the fire”, given that the community of Grassy Narrows is known to have serious social issues, including alcohol and drug abuse and violent crime. Given same, the Crown submits that the present release plan does not represent a change in circumstances pursuant to which the applicant is entitled to a review.
DISCUSSION
[13] I am not persuaded that the Justice of the Peace made an error in his assessment of the strength of the Crown’s case against Mr. Land. The Justice of the Peace relied on the videotape evidence confirming the applicant’s presence at the scene of the alleged incident together with blood on the applicant’s clothing in finding the Crown’s case to be “sufficiently strong”. Some of this blood evidence has now been conclusively linked to the robbery complainant.
[14] In any event, the reasons of the Justice of the Peace establish that his finding of the strength of the Crown’s case was only one reason for his denial of bail. My reading of the reasons of the Justice of the Peace confirm to me that it was the strength of the Crown’s case, the record of the applicant and the weak release plan that led the Justice of the Peace to deny bail in the first instance. I find no error in this reasoning.
[15] I am persuaded that the proposed terms of release presented to me on this review application represent a change in circumstances for the applicant. As a result, I am required to consider the application for release, based on the new and present circumstances.
[16] The onus is on the applicant to show cause why his detention is not justified. The Crown relies on the secondary ground. If I am persuaded that the conditions and terms of the new release plan adequately address all concerns related to the secondary ground, the applicant is entitled to be released.
[17] The applicant submits that he be granted release on the following terms and conditions:
That he reside in the First Nations community of Grassy Narrows, Ontario with his grandfather and brother;
That his mother Sandra Neecompenace sign as his surety of $500.00 without deposit;
That he post a cash deposit of $500.00;
That he be subject to a curfew and be required to abstain from the purchase, possession or consumption of alcohol or drugs;
That he report to the Treaty 3 Police Services in Grassy Narrows;
That he have no contact with the complainant or any witnesses.
[18] The applicant has a very serious criminal record. That record is as follows:
Assault (Youth Court) August 21, 2007 – 30 days custody;
Robbery with Violence January 11, 2010 – 6 month conditional discharge;
Trafficking x 2 February 2, 2012 – 30 days PTC plus one day;
Breach of Recognizance x 2 February 2, 2012 – 15 days;
Robbery with Violence x 2 June 26, 2012 – 78 days PTC plus 3 months;
Assault June 26, 2012 – 21 days PTC plus 5 months custody;
Breach of Probation x 2 February 8, 2013 – 16 days PTC plus 29 days;
Breach of Probation x 2 March 28, 2013 – 19 days PTC plus 70 days;
Breach of Probation May 29, 2013 – 60 days;
Breach of Recognizance August 29, 2013 – 45 days;
Breach of Probation August 29, 2013 – 52 days consecutive;
Breach of Probation December 19, 2013 – 30 days PTC plus 5 months.
[19] In the five years since the applicant first appeared in court as an adult, he has accumulated 16 convictions, including three convictions for robbery, seven convictions for breach of probation and three convictions for breach of recognizance. In my opinion, this is a very serious criminal record for a 26 year old man.
[20] The applicant testified at his bail hearing. He told the court that he had dependency issues with both drugs and alcohol and that he was desirous of obtaining treatment to help him deal with these issues. There is nothing in his affidavit of February 19, 2015 to suggest that he has done anything while incarcerated to address these issues. There is no evidence in this affidavit or otherwise before this court that the applicant is willing or able to address these issues as part of his proposed plan of release.
[21] The applicant has no employment waiting for him upon release. He suggested at his bail hearing that he has worked in the past as a fishing guide. Given the time of year, no such employment would be available to him upon release.
[22] The applicant proposes that he reside with his brother and his 69 year old grandfather in Grassy Narrows. Neither has provided evidence on this application. I therefore have no information as to the circumstances of either the grandfather or the applicant’s brother. I have no information as to whether the grandfather’s residence is or is not a “dry” residence.
[23] I reject summarily the suggestion that the applicant’s mother, who resides in Kenora, is a suitable surety for the applicant. She testified at the bail hearing and was rejected as a surety by the Justice of the Peace. The suggestion that she could now, while residing in Kenora, exercise any degree of effective control or monitoring of the applicant, who would be residing 60 miles away in Grassy Narrows, is simply not credible.
[24] The applicant’s criminal record, as accumulated over only the past five years, is very serious. It is my conclusion that the applicant has neither respect nor regard for orders of the court. The First Nations community of Grassy Narrows grapples with chronic and serious social issues, including substance abuse, unemployment, poverty and violent crime. To release the applicant and require that he reside in this community, without employment and without immediate supervision, even on strict terms and conditions, would be inappropriate.
[25] The applicant has failed to persuade me that his detention is not justified. I find that the applicant’s continued detention is justified for the protection and safety of the public having regard to all the circumstances discussed herein, including a substantial likelihood that if he were released on the conditions proposed he would nonetheless commit further criminal offences.
[26] The application for judicial interim release is denied.
The Hon. Mr. Justice J.S. Fregeau
Released: March 27, 2015
CITATION: R. v. Land 2015 ONSC 2030
COURT FILE NO.: CR-15-004-BR
DATE: 2015-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Merrill Land
ENDORSEMENT ON BAIL REVIEW
Fregeau J.
Released: March 27, 2015
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