R. v. Wynter, 2015 ONSC 2426

CITATION: R. v. Wynter, 2015 ONSC 2426

COURT FILE NO.: CRIMJ(P) 626/14

DATE: 20150413

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Earl Wynter

BEFORE: Justice Hill

COUNSEL: T. Powell, for the Respondent

D. Zekavica, for the Applicant

HEARD: April 10, 2015

ENDORSEMENT

[1] On April 10, 2015, this court ordered the applicant released on bail on a recognizance with conditions under the supervision of three identified approved sureties with these additional reasons to follow.

[2] The applicant was arrested on June 25, 2013, and charged with crimes relating to three firearms, a quantity of ammunition and breach of a weapons prohibition order.

[3] After a contested bail hearing, the applicant was granted judicial interim release on July 18, 2013 with two approved sureties (Philicia McClacken and Tanisha Crawford) and a number of conditions including that he reside with one of his sureties.

[4] When Ms. McClacken withdrew as a surety, the applicant was taken into custody and held for a further bail hearing on the original charges and a charge of breach of recognizance which was ultimately held on December 20, 27 and 30, 2013. The Crown opposed release on the secondary ground in s. 515(10)(b) of the Code relating to an alleged substantial likelihood of the commission of further criminal offences if released.

[5] In this successive 2013 application for release, the applicant advanced as proposed sureties T. McDermott, A. Sinclair and Marjorie Wynter, the applicant’s mother. The justice of the peace heard evidence from an investigating police officer, the three proposed sureties and two other witnesses.

[6] In her December 30, 2013, reasons, the presiding justice of the peace granted a s. 524 revocation of the prior bail order and dismissed the application for bail. There is no dispute between the parties here that the justice of the peace considered the correct test relating to the s. 515(10)(b) public safety consideration, that in the circumstances the applicant had the onus of demonstrating why his continued detention was not justified, and that the court did not fail to consider or misapprehend the evidence before her relating to the alleged circumstances of the offences and the Crown’s case. The court considered the firearm charges to be “very serious”. As well, she noted the applicant’s prior criminal record which included a last conviction in April of 2001.

[7] In the course of her reasons, the justice of the peace stated:

Analysis – Secondary Ground

This court must determine whether the accused should be detained on the secondary ground and whether the proposed sureties and plan of release can reduce the substantial likelihood that the accused will commit a criminal offence or interfere with the administration of justice if he is released. (emphasis added)

[8] Following analysis of those factors relevant to the secondary ground, the court concluded:

In respect to the secondary ground, I am satisfied that absent substantial supervision by a surety or sureties, that there is a substantial likelihood that the accused will offend due to the number of serious outstanding charges, especially as the accused is subject to two weapons prohibitions, the alleged breach and the criminal convictions. However, having said that, the court finds Earl Wynter is releasable.

In determining that the accused is releasable, the court has taken into consideration…

(emphasis added)

[9] The court then proceeded to summarize relevant factors before stating:

The next question then becomes does the proposed plan address the secondary ground concerns or does the plan reduce the substantial likelihood that, if released, the accused will commit offences or interfere with the administration of justice.

[10] After finding that the proposed sureties McDermott and Sinclair were unsuitable for the surety role, the court turned to Ms. Wynter:

As the court has found the other proposed sureties unsuitable, the only remaining option is that the accused would reside with his mother.

In the end, while the court believes Ms. Wynter would be a good surety, she cannot be the only surety or the residential surety. The accused needs, at the very least, a very strong residential surety. The court does not feel it can put a release in place at this time…

[11] In light of this conclusion regarding the release plan, the court stated:

Thus, the court finds that the accused has not met his onus, and he will be detained on the secondary ground.

[12] It is evident on the record here that the justice of the peace misdirected herself in law by concluding that the applicant was “releasable” on an order pursuant to s. 515(2) of the Code and then proceeding to order him detained. While correctly starting out to state two distinct questions, the court then conflated the test for release (ss. 515(1)(2)(3)(6)(10)) with the adequacy of the proposed plan to enforce such a release order in terms of whether fit, good and sufficient sureties existed. Put differently, given her factual findings, the justice was obliged to order the applicant released on a recognizance with set conditions and an identified number of sureties and pledge amounts. The court ordering release need not name or approve sureties within a s. 515 show cause hearing (s. 515(2.1); see also: R. v. Brooks (2001), 2001 28401 (ON SC), 153 C.C.C. (3d) 533 (Ont. S.C.J.), at paras. 33-38; R. v. J.V. (2002), 2002 49650 (ON SC), 163 C.C.C. (3d) 507 (Ont. S.C.J.), at paras. 62-75).

[13] All arrested persons are theoretically and presumptively entitled to be released on bail. However, a judicial conclusion that a particular individual is releasable, after considering the onus and circumstances of the allegations and his/her antecedents, means that continued detention has been found to be unnecessary in the particular base because a release on some form of identifiable order described in s. 515(2) will serve to reduce any risks described in s. 515(10) to a tolerable level. Simply because a detained person’s proposed sureties are not considered by the judicial officer in-hearing to be equal to the task of adequately supervising such a release order does not eliminate the appropriateness of making the release order with the approval of suitable sureties, if and when presented, to be the subject of a subsequent assessment on surety affidavit, Crown consent, bail in-take interview by a justice of the peace, or an in-court hearing as directed by justice of the peace.

[14] Accepting this legal error to have occurred, Mr. Powell sought to persuade the court that in any event continued detention is justified on the basis that the justice of the peace erred in finding the applicant to be releasable. Counsel argued that:

(1) having found that the applicant likely breached the residency condition of the July 18, 2013 recognizance, the court could not reasonably conclude that the applicant was releasable

(2) the court erred in considering that the applicant had met the secondary ground concerns considering not only the alleged breach of recognizance but also the applicant’s criminal record and the serious circumstances of the firearms allegations.

[15] On the first point, engaging consideration as to whether the applicant knew that Philicia McClacken was moving out of the 6025 Glen Erin address where she had been residing with the applicant and whether in fact Ms. McClacken had moved out, the justice of the peace concluded that the Crown had a very strong case on the breach recognizance allegation. That said, the court further noted as part of its reasoning that the applicant could be released that:

As well, the court has taken into consideration that Mr. Wynter was still residing at the Glen Erin address and seemed to be following the house arrest terms, even though his surety was allegedly not residing at that address.

[16] This observation, I am satisfied, was intended to blunt the probative force of any breach such as it may have existed. This was a reasonable conclusion the court was entitled to – not eliminating the alleged breach as a factor but reducing its weight in the secondary ground calculus.

[17] There was conflicting evidence between the witnesses Denise and Philicia McClacken who testified before the justice of the peace. Ultimately, when the prosecution witness Philicia McClacken failed to appear at the applicant’s breach recognizance trial, the Crown withdrew the charge on May 9, 2014.

[18] I am also unpersuaded by the second submission of the Crown. The court, in its twenty-four pages of reasons, did consider all relevant factors including the serious nature of the firearms charges, the applicant’s criminal record, and potential weaknesses in the strength of the Crown’s circumstantial case. The court also observed that in the five months (July 18 to December 16, 2013) the accused had been on bail, he appeared to have obeyed the house arrest condition of his recognizance:

In determining that the accused is releasable, the court has taken into consideration that since the accused’s initial release in July, the police have conducted a number of compliance checks and the accused has been where he was required to be each and every time.

[19] There is nothing unreasonable in the justice of the peace’s assessment of all factors properly relevant to the public safety ground.

[20] This court has no reason to intervene in the conclusion that the applicant was releasable and deserving of an order for judicial interim release. The 38-year-old father of five children faces serious charges. Be that as it may, the applicant’s trial on the 20-count indictment yet to be amended to comply with R. v. Robinson (2001), 2001 24059 (ON CA), 153 C.C.C.(3d) 398 (Ont. C.A.) in terms of elimination of identically-worded counts, none of which carry a mandatory minimum term of imprisonment, is scheduled for the sittings of September 21, 2015, some 2 1/3 years after his arrest and therefore approaching 3 ½ years of presentence custody on a 1.5:1 credit as described in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[21] As a distinct inquiry conducted today by this court, because the parties and proposed sureties (M. Wynter, E. Calder, N. Forsythe) were otherwise present, the court determined with the consent of the Crown that these individuals were fit, good and sufficient sureties to be named as approved sureties to supervise the recognizance with terms ordered by the court last week.

Hill J.

Date:April 13, 2015