CITATION: R. v. Andrade, 2015 ONSC 428
COURT FILE NO.: CR-15-90000020-00BR
DATE: 20150128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER ANDRADE
Applicant
Elizabeth Jackson, for the Crown
Leora Shemesh, for the Applicant
HEARD: January 22, 2015
SPIES J.
Introduction
[1] Mr. Andrade brings this application pursuant to s. 520 of the Criminal Code of Canada for a review of the detention order made by Justice of the Peace Baum on January 7, 2015 and for an order granting his release on terms. It is submitted that the Justice of the Peace erred in her application of the law both on the secondary and tertiary grounds and that there has been a material change in the circumstances since that bail hearing.
The Charges
[2] Mr. Andrade is facing two sets of charges; one where is he charged alone and the other where he and his father have been charged. The first set arises from a search of his residence on Royal York Road, on January 2, 2015, at which time police seized 12.58 grams of cocaine and 73.12 grams of marijuana. The total street value of the narcotics seized at that time is alleged to be $1,930. A quantity of currency was located in Mr. Andrade’s residence and on his person when he was arrested on January 3, 2015, totaling $14,737.00. A search of his vehicle was also conducted with negative results.
[3] Also on January 2, 2015, a search warrant was executed at the home of Mr. Andrade’s father; Jose Andrade. Keys in Christopher Andrade’s possession unlocked the door to the apartment but inside police found a locked closet door. None of the keys in Christopher Andrade’s possession opened that door and Mr. Andrade’s father advised police that he did not have a key for this locked closet. Police removed the hinges of the door and searched the closet finding 170.78 grams of cocaine with a street value alleged to be $17,000. In addition a .40 calibre semi-automatic handgun with ten rounds of .40 calibre ammunition suitable for use in that firearm was found in a sock in the closet. It is also alleged in the police synopsis that documents in the name of Christopher Andrade were located in the closet “area”. It is not clear from the synopsis what those documents were and where they were found. A further search of the kitchen revealed a scale with what the police allege appears to be cocaine residue on it as well as some small drug baggies. These items were also seized.
[4] As a result of these searches, Christopher Andrade was charged with possession for the purpose of trafficking in cocaine and in marijuana and possession of proceeds of crime. He is charged jointly with his father with various possession of firearm charges and possession for the purpose of trafficking in cocaine.
[5] I am advised that Jose Andrade is still in custody and that will not likely change as he has no family here and, as a result, no one to act as a surety.
The Bail Hearings
[6] The first bail hearing was before Justice of the Peace Khan on January 8, 2015. The Crown sought Mr. Andrade’s detention on the secondary and tertiary grounds. Although the synopsis makes no mention of this, before the Justice of the Peace and before me, the Crown alleged that Jose Andrade’s son; who is seven years old and who is Christopher Andrade’s step-brother, was present while the warrant was being executed and he stated that Christopher was the only one who had the key and was the only one who had access to this closet. He proceeded to give a more fulsome and detailed account of Mr. Andrade’s access to the closet to one of the detectives on the scene. Although it was stated that this would be forthcoming in disclosure to Ms. Shemesh when the notes were provided, this piece of disclosure has not yet been provided to her despite its clear importance to the Crown’s case.
[7] At this bail hearing it was proposed that Max Valenzuela, Mr. Andrade’s first cousin, whom he calls “Uncle Max,” be his surety and he testified. This bail hearing was abandoned by the Defence for reasons I will come to. Although it is no longer proposed that Max Valenzuela be a surety, before me Ms. Jackson for the Crown relied on some of this evidence. She did not agree, however, that I proceed with the review on a de novo basis.
[8] In the circumstances there is not much relevance now to the evidence of Mr. Valenzuela save that he was Mr. Andrade’s surety before for a period of two years or so which I understand was in the years 2010 to 2012, when Mr. Andrade was facing drug charges. Those charges were withdrawn in 2012. Mr. Valenzuela testified that as a term of his bail Mr. Andrade lived with him and he did not have any trouble with Mr. Andrade while he was on bail. Mr. Valenzuela and his mother live within walking distance of Mr. Andrade’s employer; Nestle Canada where Mr. Andrade now works full time. Mr. Valenzuela thought Mr. Andrade was earning somewhere between $18 and $22 an hour. He does not know Mr. Andrade to use cocaine.
[9] Mr. Valenzuela testified that he was prepared to ensure that Mr. Andrade gets to work every day and that he comes home from work every day. He works in the building where he lives as Assistant Superintendent and testified that he has a lot of flexibility in his work and can step out for an hour or so. He was prepared to secure his entire savings which at that time was $8,000. He was also prepared to be on the hook for a further sum of money which would include the monies he makes annually of $63,000.
[10] It seems that the bail hearing went off the rails once it was determined that when Mr. Valenzuela was asked whether or not he had a criminal record he answered that he did but he only disclosed one conviction for possession of stolen goods about 20 years ago, for which he said that he got a fine and probation. After the Crown obtained Mr. Valenzuela’s criminal record, it was determined that Mr. Valenzuela had in fact been before the courts on two occasions, one in 1999 and one in 1996. The first entry is from May 1996 for theft under $5,000 for which Mr. Valenzuela received a $5,000 fine and probation for one year. The second entry is January 1999 and the conviction was for possession of property obtained by crime under $5,000. He received a suspended sentence, probation for 18 months and time served of two days. Mr. Valenzuela was adamant that he was not trying to deceive the court. When cross-examined further he testified that he remembered the one time when he was arrested but on the other occasion he was not handcuffed and was just given a date to appear.
[11] Following this evidence and before submissions, the Justice of the Peace repeatedly pressed Ms. Shemesh as to whether or not she wanted to continue with the bail hearing given the record of her proposed surety and that his evidence about his record turned out to be inaccurate. Having read the transcript it was pretty clear that the Justice of the Peace was not happy with the proposed surety and ultimately Ms. Shemesh asked that in light of what had transpired that the bail hearing be struck and the matter be adjourned to the following day.
[12] It is no longer suggested that Mr. Valenzuela act as a surety and so I do not have to consider his explanation for not disclosing both sets of charges. However, to the extent he may have contact with Mr. Andrade, I must say that I do not find his evidence surprising given the time that has passed. Given that he readily admitted the one conviction I see no reason why Mr. Valenzuela would have withheld the other had he remembered it.
[13] The following day the bail proceedings proceeded anew before Justice of the Peace Baum. At this time it was proposed only that Mr. Andrade’s aunt and godmother, Maria Valenzuela, Mr. Valenzuela’s mother, be his surety. Her deceased husband was the brother of Mr. Andrade’s mother. She is 64 and is not related to nor does she have a relationship with Mr. Andrade’s father or his seven year old son. She is currently retired and on disability support and is home all day, seven days a week. She has only $10,000 saved for her own funeral costs but was willing to risk it to obtain the release of her nephew.
[14] Ms. Valenzuela testified that she has always been close to Mr. Andrade and that she was prepared to have him live with her and her son and take him to work and pick him up from work if required. In cross-examination Ms. Valenzuela testified that her son Max had lived with her for around five years, since he had separated from his wife and that Mr. Andrade had never lived with her before. Ms. Jackson relies on this evidence and argued before me that this evidence means that Mr. Andrade breached his prior bail because he was required to live with his Uncle Max. Ms. Valenzuela also testified that she did not know until recently that her nephew had been arrested before or that her son Max was his surety in 2010 through 2012. In answer to questions from the court Ms. Valenzuela testified that she was there because she wanted to help her nephew. She always looked at him as a good young man and she trusted him and she believes that he respects her a lot.
The Submissions of Counsel at the Bail Hearing
[15] I will review the submissions of Crown counsel at the bail hearing, who was not Ms. Jackson, because before me, Ms. Shemesh submitted that without minimizing the serious nature of these offences, it is her position that before the Justice of the Peace, the Crown exaggerated the nexus between firearms and drug trafficking and the facts of this case to have the case pigeonholed into other cases relied upon by the Crown such as R. v. Smikle, 2010 ONSC 5311, [2010] O.J. No. 4514 (S.C.J.). She submitted this led the Justice of the Peace to err in coming to her decision.
[16] The position taken by the Crown at the bail hearing in summary was that firearms and drugs in Toronto have been a toxic combination for some time. He referred to the Court of Appeal’s decision in R. v. Danvers, (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490, a case of murder committed with a handgun and quoted from that decision: “firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Society must be protected from criminals armed with deadly handguns”. Although the Crown no doubt referred to this case to reinforce the seriousness of firearms offences, the facts of that case of course were dramatically different from the facts alleged in the case at bar.
[17] In summarizing the Crown’s case, the Crown advised the Justice of the Peace that Mr. Andrade’s I.D. and his clothing were found in the closet, which I note is not part of the synopsis. This error was not picked up but unfortunately is significant as it suggests a much stronger link between Mr. Andrade to the closet than the facts alleged in the synopsis. The Crown also referred to the evidence in the kitchen in support of his position that Mr. Andrade is involved in ongoing drug trafficking with the use of firearms yet the substance on the scales, that looks like cocaine, in my experience, could as easily be baking. On this basis the Crown submitted that the case against Mr. Andrade, looking at the four sub-grounds of the tertiary grounds, is “extremely strong”.
[18] The Crown repeatedly suggested to the Justice of the Peace that the firearm found was loaded; at one point he even submitted: “what we have is a loaded firearm in a room where there’s a seven year old,” which is an exaggeration/misstatement in two respects. There is no evidence that the seven year old could gain access to the firearm. Furthermore, it was only later in his submissions that the Crown argued that the fact there was ammunition accessible next to the firearm made it a “loaded” under the Criminal Code. He acknowledged, however, that Mr. Andrade had been charged with possession of an unloaded firearm. Although the Crown submitted there is authority in support of this argument, the cases referred to that speak to loaded firearms are all cases where the ordinary English language meaning is ascribed to that term; i.e. a bullet was found in the chamber of the firearm. This is an important distinction in the cases.
[19] The Crown made a number of references in his submissions to the earlier drug charges that had been withdrawn. Although he stated that the earlier charges were relevant because the proposed surety was not aware of them, he clearly used them for more; at one point stating that: “it was only in 2012 that the charges against Mr. Andrade were withdrawn and he’s back before you in two and a half years facing extremely similar but even more toxic[sic]; there’s now a handgun.”
[20] In the course of submissions on the secondary ground the Crown asked the Justice of the Peace to adopt the comments of Justice Wein from paragraph 12 of the Smikle decision where she states:
However on the secondary ground, and notwithstanding the level of supervision offered, I am not satisfied that there would not still exist the significant likelihood of the commission of further offences.
[21] The Crown went on to characterize the evidence in the kitchen, combined with the evidence in the closet and the evidence in Mr. Andrade’s apartment, as that of “mid to high level drug trafficking”. He then went on to refer to paragraph 13 of Smikle and suggested that the Justice of the Peace simply substitute Mr. Andrade’s name for Mr. Smikle. As I will come to, this was significant because Wein J. found in that paragraph that for drug trafficking at the mid to high level pretrial incarceration will often be required.
[22] The Crown referred as well to the decision of Justice Trotter in R. v. Baba, [2006] O.J. No. 5387 and a decision of Justice Hamilton; R. v. Beason, [2005] O.J. No. 5706, when he referred to people laying roses at Dundas Square on figures that had been outlined on the pavement of young people that had been shot. He submitted that Justice Hamilton detained on the tertiary ground, “much like I’m asking you to consider detaining Mr. Andrade today.”
[23] At the outset of her submissions, counsel for Mr. Andrade reminded the Justice of the Peace that Mr. Andrade has no criminal record and no outstanding charges and she raised a concern with the Justice of the Peace about the fact that the Crown had repeatedly emphasized the drug charges that had been withdrawn. As counsel for Mr. Andrade properly submitted, what was important about the prior charges was that Mr. Andrade had been supervised before and there had been no issue with his compliance with the terms of bail. She also stated that she did not want to give evidence but that her office had acted for Mr. Andrade with respect to his prior charges and that his bail had been varied to permit him to live alone at some point. She pointed out that the fact that Mr. Andrade would be supervised as well by Max Valenzuela was a positive thing as he had been previously approved by the courts as a surety and had been successful in the supervision of Mr. Andrade for two years and that if the court felt it appropriate, house arrest was available. She pointed out that there was no surveillance of Mr. Andrade suggesting his involvement in drug trafficking or any information from confidential informants or contact with undercover officers. She submitted that a trial on charges like this could be one, two or maybe even three years away.
The Reasons of the Justice of the Peace
[24] The Justice of the Peace gave her decision on January 9, 2015. She correctly referred to the split onus; the reverse onus on Mr. Andrade for the drug charges and the Crown onus for the gun charges. She noted that Mr. Andrade’s aunt and godmother had testified that if he was released she would be like a police officer to him. She found that she presented as an honest, responsible and trustworthy individual. She held that there was no doubt that if convicted Mr. Andrade was facing a lengthy incarceration.
[25] With respect to the secondary ground, the Justice of the Peace noted that no evidence was presented as a “pattern of behaviour, no criminal record, no evidence of breaches on a bail that lasted two years where charges were withdrawn, no fail to comply of a court order.” She went on, however, to rely on Smikle and the only difference that the Justice of the Peace expressly acknowledged from Smikle was that a different number of firearms were seized in that case. She accepted the Crown’s primary submission and found that the underlying combination of the dangerous nature of the drugs found with a firearm in a locked closet was toxic and, based on the evidence of the seven year old, indicated a “high level of involvement.” In my view that choice of language which was repeated suggests that the Justice of the Peace accepted the Crown’s submission that this is a case of mid to high level drug trafficking.
[26] The distinction that unlike Smikle only one weapon was found was repeated but the Justice of the Peace held that “like Smikle the court finds that is a factor suggesting continuing danger if you were to be released”. She also interpreted Smikle as standing for the proposition that it was the “toxic and dangerous nature of drugs found with a firearm that meant even the strictest release of … virtual house arrest, and a committed number of …sureties” would not adequately protect the public. The Justice of the Peace found that the evidence suggested that Mr. Andrade had access to the gun and readily accessible ammunition and with the drugs and the cash seized in both his home and his father’s home “there is a substantial likelihood you would reoffend if released from custody and would commit a further criminal offence, thereby putting the public at risk.”
[27] As for the tertiary grounds, the Justice of the Peace agreed with the Crown that an accused person charged with firearm offences and drug offences is a combination that is “toxic in Toronto”. Again she relied upon Smikle. She concluded that the gravity of the offences was at the “higher end of the scale involving a significant amount of drugs”; again in my view a reference to mid to high level drug trafficking, the cash seized as well as a firearm and readily available ammunition. The Justice of the Peace held that on the totality of the evidence Mr. Andrade is allegedly involved in ongoing drug dealing and the trade of narcotics and that the dangerous combination of drugs, a gun with readily accessible ammunition and cash required detention for maintenance of confidence in the administration of justice. As a result, the Justice of the Peace ordered detention on both the secondary and tertiary grounds.
The Evidence on the Bail Review Hearing
[28] Mr. Andrade filed an affidavit in support of his application. He did testify. He is 36 years old and a Canadian citizen. He admitted that he was living alone at the Royal York Road address. He does not have a criminal record and is not facing any other criminal charges. In 2010 he was charged with drug offences and his “Uncle Max” acted as his surety and supervised him for a period of some two years. Mr. Andrade testified that in 2012 he was tried and his charges were dismissed but the Crown had advised the Justice of the Peace that they had been withdrawn. In any event he has no criminal record. Mr. Andrade deposed that he always listened to Uncle Max and abided by the conditions of his release and that he intends to do the same now if released.
[29] Mr. Andrade prefers to live with his Uncle Max as his uncle’s home is very close to his current employment with Nestle Canada. He is also prepared to live with his mother if this court determines that he be released but finds that his Uncle Max is not a suitable surety.
[30] Counsel agreed to rely on Max Valenzuela’s evidence before the Justice of the Peace. In addition, he filed an affidavit in support of the application. Mr. Andrade’s mother, Lorena Valenzuela, also filed an affidavit and testified on the bail review application. She immigrated to Canada when she was 19. She is a Canadian citizen, has never been in trouble with the law and has never acted as a surety in the past. She resides with her husband and 24 year old daughter, Mr. Andrade’s sister, in a four bedroom home in Bradford, Ontario. She qualified as a mortgage broker in 2009 and has been employed in that capacity ever since. Her hours are flexible and she does 70% of her work from home. She is able to set her own hours allowing her to constantly supervise her son if required.
[31] Ms. Valenzuela and her husband, Manuel Avila, Mr. Andrade’s stepfather, are willing to be sureties and have their son reside with them. They are willing to pledge jointly $10,000 for their son’s release. Mr. Avila, also filed an affidavit in support of the application. He was not required to testify. He is a permanent resident having immigrated to Canada in 2005. He is very close to Mr. Andrade but would not be able to supervise him during the day as he is an Assistant Superintendent for a housing co-op located in Toronto and works there from 8 a.m. to 4 p.m. In fact based on the address it seems that Max Valenzuela; “Uncle Max” resides with his mother at the same housing co-op where Mr. Avila works.
[32] Ms. Valenzuela testified that she knew that her son had gotten into trouble with the law five years ago but did not know the details. Mr. Andrade told her that the case had involved fighting and that drugs were involved and she didn’t ask anything more. She was not asked to be a surety for him at that time and she never went to court. She knows her son as a “good son who works and goes to the gym”. All she knew was that he went to live with his cousin Max.
[33] Ms. Valenzuela was not aware of the circumstances of the current offences until after the bail hearing before Justice of the Peace Baum. She knows the charges are serious and was aware of the fact that a gun and ammunition were found at her son’s father’s property. She did not know that drugs were found in her son’s residence. She said that she didn’t ask that many questions and “didn’t want to hear it”.
[34] Ms. Valenzuela was firm, however, that she wants to make sure that her son behaves properly and that she does not want him to do any illegal drugs. She testified that she has worked hard bringing him up and she expects him to be a good citizen and have respect for the law. She characterized herself as a very strong person and suggested that her son was probably more afraid of her knowing than not knowing about these charges. Ms. Valenzuela was clear that the minute her son did something wrong she would not put up with it that. As long as she knows what she has to do, she will do it. She would ensure her son remained in the house except for the purpose of employment.
[35] Ms. Valenzuela testified that her son works different shifts at Nestle Canada. She said that she could drive him to work and pick him up if necessary but that would be a sacrifice as they only have one car and she is the only one who drives. It may be that her 24 year old daughter drives as well but her ability to drive Mr. Andrade to work was not clear from the evidence.
The Proposed Plan of Release and the Submissions of Counsel
[36] Ms. Shemesh proposed that Ms. Valenzuela and her husband be joint sureties and that Mr. Andrade live with them and follow the routine and discipline of the household. His mother would supervise him with the assistance of her husband. Ms. Shemesh proposed that Mr. Andrade be under house arrest save for his employment and that, since he has a car, he be permitted to be out of the home for the purpose of travelling to and from work or being out with his surety.
[37] Ms. Jackson submitted that the proposed plan is merely a shuffling of sureties and does not constitute a material change warranting a review. She also submitted that a crucial issue is whether or not the relationship between the surety and the accused is open. She relied on the fact that Mr. Andrade concealed that aspect of his life from his mother and called every other possible surety before going to her. He clearly didn’t want his mother to know. To that Ms. Shemesh responded that it is not necessary for a surety to know all the ins and outs of the case. She relies on the fact that Mr. Andrade’s mother knows that drugs and firearms are illegal and are serious.
[38] It is significant that Ms. Jackson very fairly conceded that based on the quantity of cocaine and marijuana found in Mr. Andrade’s residence, the evidence does not suggest that Mr. Andrade is involved in mid to high level drug trafficking. She submitted, however, that it would be a mistake to look at these charges as two separate transactions. Mr. Andrade had keys to his father’s apartment and the drugs found in his apartment and in his father’s apartment are of the same nature; namely cocaine. She also argued that the large amount of cash cannot be explained by Mr. Andrade’s income of $40,000 per year. Ms. Jackson advised that police did not find the key to the closet in either residence or in Mr. Andrade’s possession. She characterized her case as “reasonably strong” but one at the lower end of mid-level trafficking. It is her position that it is not clear that the Justice of the Peace found that this case represented a higher level of drug dealing. As I have already reviewed, I disagree given the submissions of the Crown before the Justice of the Peace and the language used by the Justice of the Peace in her reasons.
[39] On the secondary ground Ms. Jackson submitted that the court should consider that there is some evidence that Mr. Andrade breached his prior bail even though he was never charged with that; relying on his aunt’s evidence that her son Max lived with her the entire period that Mr. Andrade would have been on bail and that he never lived with her. Ms. Jackson fairly conceded that on the tertiary ground her position is not as strong but there was a basis for that finding and that the Justice of the Peace was not in error. Ms. Jackson did not argue that detention was necessary on the secondary ground because if released Mr. Andrade would interfere with the administration of justice. In any event any concern in this regard can be dealt with in conditions for release.
[40] After hearing the Crown’s submissions Ms. Shemesh suggested that I consider what Ms. Jackson was submitting as compared to what the Crown submitted before the Justice of the Peace. I must agree with her that there was a dramatic difference in those submissions. Ms. Jackson’s submissions were more consistent with the facts of the case and did not exaggerate any aspect of the Crown’s case.
Analysis
[41] A bail review is not a de novo hearing allowing unfettered substitution of views by the Superior Court. Ordinarily an error in principle or law or jurisdiction or a material change in circumstances is necessary to found interventionist scrutiny. See Re Brooks and the Queen (2001), 2001 CanLII 28401 (ON SC), 153 C.C.C. (3d) 533 (Ont. S.C.) at p. 544.
[42] As Justice Hill found in R. v. Ferguson, [2002] O.J. No. 1969 (S.C.J.) at para. 17, simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.
[43] I have concluded that the learned Justice of the Peace fell into error by adopting the submissions of Crown counsel and relied too heavily on what was, in my view, an exaggeration of the facts and the strength of the Crown’s case and the application of the cases such as Smikle. As a result she erred in a material way in ordering the detention of Mr. Andrade. I am also concerned about the fairness of the hearing before the Justice of the Peace given the repeated references to Mr. Andrade’s prior charges that were withdrawn. I am also of the view that although there has been a shuffling of sureties, the commitment of Mr. Andrade’s mother, who has been asked to act as his surety for the first time, calls into question the continued validity of the reasons for detention such that there has been a material change.
[44] Accordingly I consider this matter de novo and turn first to the secondary ground. Although the Justice of the Peace stated in her reasons that Mr. Andrade has no criminal record and no breaches while on bail that lasted two years, she mistakenly considered that the Smikle decision applied, distinguishing it only on the basis that in that case there were two firearms. I am not surprised by this given the submissions of the Crown but having found that no evidence was presented as a “pattern of behaviour”, had the Justice of the Peace more closely examined the Smikle decision, she would have appreciated that there were a number of other distinguishing facts.
[45] In Smikle, like the case at bar, the accused had no criminal record and a solid work record. However, the evidence in Smikle was that Mr. Smikle owned two high-rise condominium apartments and surveillance evidence showed that he attended each for short periods of time, that he was involved in hand to hand transactions and was apparently using one of the apartment buildings as a storage place for drugs. He used several different names in relation to phone numbers and condominium ownership documents. In one apartment, two loaded handguns, one with a magazine containing twelve rounds and a second with six rounds was found as well as a suitcase containing 1,350 grams of crack cocaine, 195 grams of powdered cocaine, a digital scale and debt lists along with identification relating to Mr. Smikle. Cooking pots with crack residue and packaging material was found in the kitchen. In the other apartment debt lists, 245 grams of marijuana and a bra with built in hidden compartments was found. Cell phones and a key fob in the vehicle linked Mr. Smikle to one of the apartments.
[46] Wein J. observed at paragraphs 4 and 5 that:
Cases where the evidence against an accused is strong and suggestive of ongoing involvement in drug trafficking at a level where weapons are present will certainly bring the tertiary ground into play. Even a person without a criminal record who is involved in those circumstances, certainly where the evidence is cogent, should expect that the application of the tertiary ground will often convince the Court that release pending trial is not appropriate.
The same factors will bear on the secondary ground, since even close supervision by sureties may be inadequate, realistically, to prevent the ongoing communication element involved in multi-level drug trafficking.
[47] It was on these facts and principles that Justice Wein made the findings relied upon by the Crown before the Justice of the Peace when he referenced paragraphs 12 and 13 of her decision and her finding that detention was warranted on the secondary and tertiary grounds.
[48] Significantly in paragraph 13, Justice Wein found the evidence before her suggested drug trafficking at a “mid to high level” and after referring to the use of cell phones, false names and debt lists she found that this evidence suggested that contacts could continue to be directed or involved if Mr. Smikle were able to contact them. She concluded that:
Even close supervision cannot at all times prevent cell phone, internet, or other communications. For that reason alone, in this type of situation, of drug trafficking at this level, pre-trial incarceration will often be required. The involvement of weapons is a significantly aggravating feature, regardless of the fact they were not located on the street or in a public place. It is a factor suggestive of continuing danger if Mr. Smikle were to be released. [Emphasis added]
[49] Clearly the concern for ongoing communication for the purpose of drug trafficking, which could not be prevented even with close supervision, was what drove Justice Wein’s conclusion that there was a continuing danger if Mr. Smikle were to be released. Furthermore, the quantity of drugs seized in Smikle was significantly more than the case at bar and the evidence directly implicated the accused in drug trafficking. It was cogent evidence.
[50] In the case at bar, the Crown’s case appears to be strong on the charges where Mr. Andrade is charged alone. Although there is a question in my mind about the quantity of cash found on Mr. Andrade and in his apartment, it must be kept in mind that at this stage no disclosure has been made and he is presumed innocent of the charges.
[51] The Crown’s case with respect to the other charges, where cocaine was found in a much larger quantity with the firearm and accessible ammunition, is not as strong; there are triable issues. The only connection to Mr. Andrade is that he had a key to the apartment which is not surprising since the apartment belongs to his father. The only connection to the locked closet is the spontaneous utterance of a seven year old child. Based on the synopsis, the documents found with Mr. Andrade’s name in the “closet area” could be anything from identification documents to old report cards being kept by his father for sentimental reasons. The Crown misspoke when he said that his ID was found in the locked closet and no key to that closet was found in his possession. The kitchen scale could be used legitimately for baking. There is no evidence of any drugs or drug paraphernalia in plain view in the apartment save for what is described as small drug baggies.
[52] Ms. Shemesh accepted that the statement from the seven year old exists but without seeing it she cannot comment on it further. Accepting that such a statement was made, there are no doubt going to be reliability issues and the case is clearly not as strong on the question of Mr. Andrade’s ongoing involvement in drug trafficking as the Smikle decision. Unlike Smikle, there is no surveillance evidence or evidence of a firearm in his residence, let alone a loaded firearm. There is no evidence such as fingerprints connecting Mr. Andrade to the firearm. Furthermore, it is clear that Justice Wein was concerned about multiple false names, cell phones, debt lists and other means of possible ongoing communication for the purpose of drug trafficking. We have no evidence of that here. The Justice of the Peace did not consider any of these distinguishing features.
[53] In coming to her decision Justice Wein observed that there have been different expressions of the weight to be given to cases where a firearm is involved when considering the tertiary ground. She referred on the one hand to R. v. A.B., 2006 CanLII 2765 (ON SC), [2006] O.J. No. 394 (S.C.J.), where Justice Ducharme reviewed a detention order of a Justice of the Ontario Court of Justice which was made solely on the basis of the tertiary ground where the accused had been found in possession of a semi-automatic handgun. He found that “public clamour” on the basis of society’s overall concerns about possession of a firearm standing alone cannot justify the detention of an accused on the tertiary ground.
[54] Justice Wein appeared to favour the approach taken in cases such as R. v. Whervin, [2006] O.J. No. 443,(S.C.J.) which is also relied upon by Ms. Jackson. In that case Justice Hill dealt with a review of a detention order where the applicant/accused was 20 years old with no prior criminal record or outstanding charges and had a history of employment. He was driving a vehicle with a female passenger and a search of his vehicle revealed 6.7 grams of crack cocaine, a loaded handgun in the trunk and nine bullets in the magazine and one in the chamber. Found on Mr. Whervin’s person was a marijuana pipe and some rolling papers, three cell phones and a quantity of cash was seized from both parties.
[55] Justice Hill found at para. 13 that he was satisfied on the totality of the evidence that the profile of Mr. Whervin as involved in ongoing drug dealing which emerged from the evidence at that time justified the conclusion that he was involved in the possession of cocaine for the purposes of trafficking and that the weapon was related to that ongoing illegal activity. As such he was satisfied that the Crown had established there was a substantial likelihood that if he were released from custody he would commit a further criminal offence. Justice Hill held that detention on the secondary and tertiary grounds was warranted. He did, however, make it very clear that his expectation was that the case be fast tracked.
[56] Again, in my view, the Whervin decision is distinguishable from the case at bar as the evidence connecting Mr. Andrade to the firearm, which was not loaded and not out in the public, is not as strong.
[57] Ms. Jackson also relies on R. v. Fetterly, 2013 ONSC 2517; a decision that was not referred to before the Justice of the Peace. In that case the quantity of crack cocaine and marijuana is not stated in the reasons; however, a loaded semi-automatic handgun with the serial number removed and a prohibited high capacity magazine was found in the backpack that Ms. Fetterly was carrying when she left her apartment, apparently in a hurry. Cash, scales, cell phones and a prescription pad were found in her apartment. Ammunition for another handgun was found together with scales in her car. Benotto J., as she then was, found that there was strong evidence that Ms. Fetterly knew what was in the backpack and that she was trying to hide the contents. Ms. Fetterly had no criminal record but was detained on the secondary and tertiary grounds both separately and combined. Again, in my view, that case is distinguishable as the firearm was loaded, found in the public and was found in a backpack being carried by the accused.
[58] Ms. Jackson also relies on R. v. Baba, [2006] O.J. No. 5387 (S.C.J.) and that case was also put before the Justice of the Peace. In that case police executed a search warrant at a hotel room that was rented by another individual but Mr. Baba and his co-accused were observed to be around the hotel room coming and going. The Crown alleged that Mr. Baba and his co-accused were exercising control over the room and the contents. In the room two kilograms of cocaine, 482 grams of marijuana and almost 1,000 ecstasy pills were found in a duffle bag. Also found in the bag was a loaded Glock handgun with a high capacity magazine clip. When Mr. Baba was searched police found another loaded handgun with a high capacity magazine and a further 99 grams of cocaine.
[59] Mr. Baba was 20 years old, had no criminal record and no legitimate job. Trotter J. found that the Crown’s case was seemingly strong at this point and extremely strong on the second set of charges related to the drugs and loaded gun found on Mr. Baba’s person. Justice Trotter found that while the evidence was less strong on Mr. Baba’s connection to the hotel room there was a reasonably cogent case that he was involved in significant drug trafficking with the use of firearms. It was also of concern that Mr. Baba was arrested in a public place with a loaded firearm. The court also found that if convicted Mr. Baba would face a substantial term of imprisonment. Justice Trotter noted that the onus made a difference in this case and that he was not satisfied that Mr. Baba’s parents had such a good connection with their son and sufficient understanding of his present life such that they would be effective sureties. Ms. Jackson referred in particular to this portion of the reasons, which I will come back to.
[60] Justice Trotter also noted that judges of this court have struggled to determine what is meant by the term “rare” cases as used by the Chief Justice in R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 (S.C.C.) in dealing with the tertiary ground. He chose to follow the approach of Justice Hill in Whervin. Bail was denied on both the secondary and tertiary grounds.
[61] Again this case is distinguishable from the case at bar in that there were two loaded firearms, in the context of significant drug trafficking with significantly more drugs than the case at bar, and both a loaded firearm and cocaine were found on the accused’s person. I note as well that the accused in that case had no legitimate job.
[62] The most recent case that I was provided with is a decision of Justice Then; R. v. Muhammed, [2014] O.J. No. 4438 (S.C.J.). Justice Then concluded that the Justice of the Peace, who had ordered the release of the accused, did not err in law in considering either the secondary or tertiary ground and so refused to substitute an order of detention. However, he was persuaded that the conditions of release were inadequate and modified those conditions. In that case a hotel room, to which Mr. Muhammed had a key, was found to contain a bulletproof vest, a quantity of marijuana and heroin as well as a fully loaded Glock handgun and a Smith & Wesson bodyguard 389 gun with a laser sight. The serial numbers on both handguns had been drilled out and a silencer for one was found and additional ammunition. Seven cell phones and $432 in Canadian currency was also found.
[63] Mr. Muhammed had also been previously charged with possession of marijuana and while on bail breached a condition of his recognizance by possessing three cell phones. A co-accused, Mr. Saleh, had a criminal record for a conviction for conspiracy to commit thefts of trailer loads of merchandise while armed. He had also breached the house arrest component of a prior bail. Justice Then noted that possession of all of the items fairly gave rise to anticipated violence and that the Justice of the Peace was bound to seriously consider whether there was a continuing threat of further crimes. He noted, however, that as pointed out by the Justice of the Peace, the strength of the Crown’s case was uncertain. He also referred to the fact that there had been a breach of bail conditions by both Mr. Saleh and Mr. Muhammed which raised a concern with respect to the commission of further crimes while on bail. Justice Then was satisfied, however, that the Justice of the Peace was of the view that prevention of further criminal conduct would be accomplished through the plan of release and the imposition of stringent conditions in view of the uncertain strength of the Crown’s case. With respect to the tertiary ground Justice Then conclude that the cumulative effect of all four factors did not yield a clear conclusion as to whether it was necessary to deny bail in order to maintain public confidence in the administration of justice. He considered it a borderline case. In the case of Mr. Muhammed, he was released on house arrest and was permitted to go to work but otherwise had to be in the presence of his surety.
[64] For the reasons stated, in my view Ms. Shemesh is correct that the Crown exaggerated the facts of this case in order to pigeonhole it into cases like Smikle and the Justice of the Peace erred when she accepted that submission without examining the particular facts of that case. I agree that these are serious charges but Mr. Andrade comes to this court with no criminal record and a positive work record. He was on bail on the prior charges for two years or so and there is no evidence that he was ever charged with breaching those conditions and he certainly was never convicted of breaching those conditions. The Crown’s case on the second set of charges raises triable issues and the evidence of ongoing drug trafficking found in other cases such as multiple cell phones and debt lists is not present.
[65] Chief Justice Lamer in R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.) at 107 observed:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose “a substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.
[66] I have considered the fact that Mr. Andrade’s primary proposed surety, his mother, was not aware of her son’s prior charges or the current charges until after his bail was refused. Mr. Andrade only disclosed these offences after the failed bail hearing and his mother does not want to think about her son as anything but a “good son”.
[67] I recognize the concerns in this regard referred to by Justice Trotter in Baba (at para.7) but in my view, on the evidence of this case, Mr. Andrade’s mother can be an effective surety. She now knows enough about the charges and I was impressed by her evidence. She has been a single mother for some time and has raised two children. She is clearly disappointed by what she has now learned about Mr. Andrade’s alleged criminal behaviour and I am satisfied that she understands what she must do as a responsible surety and that she will not hesitate to use what she aptly described as “tough love” and turn him in to police if he breaches any conditions that are imposed as a term of his release. In all of the circumstances I find that there is no substantial likelihood that Mr. Andrade will reoffend if he is released on conditions of strict supervision. As such, having regard to all the circumstances, on the secondary ground set out in s. 515(10) (b) of the Criminal Code, detention is not necessary for the protection or safety of the public or in the public interest.
[68] I turn then to whether or not detention is required on the tertiary ground. I have already set out why the cases relied upon by the Crown before the Justice of the Peace, to justify detention on the tertiary ground, are distinguishable.
[69] In Hall, McLachlin CJC stated at p. 456 that the factors set out in s. 515(10)(c) of the Criminal Code “delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice.” She went on to say that in order to rely on the tertiary ground the judge “must be satisfied that detention is not only advisable but necessary … to maintain confidence in the administration of justice.” This has also been made clear in cases from our Court of Appeal such as R. v. Laframboise, [2005] O.J. No. 575 at para. 30, where Cronk J.A. stated that the tertiary ground can only be used “sparingly” to deny bail.
[70] In my view the approach taken by Justice Ducharme in A.B., supra is consistent with these authorities. At para. 26 of A.B., Justice Ducharme noted that it cannot be seriously maintained that today’s climate of public opinion requires that every person charged with the commission of an offence involving handguns must be denied bail pending their trial. Justice Ducharme found that at most A.B. had constructive possession of the handgun that was found in a vehicle he exited which was being driven by another. He noted there was no physical evidence such as fingerprints, fibers, or DNA linking A.B. to the handgun, and that the gun was not loaded. It had not been used that night and there was no evidence that suggested it had been used in any other criminal offences. There was also evidence suggesting that the driver was the person in possession of the gun. At para. 32 Justice Ducharme found that even with the heightened public concern about gun violence in Toronto, releasing A.B. would not in any way undermine public confidence in the administration of justice.
[71] As Ducharme J. stated in R. v. B.C., 2011 ONSC 5241, at para. 18, this is not the same as saying that the tertiary ground never justifies detention. As he stated at para. 9 of B.C.:
The rising alarm over gun violence has also had an impact on bail. Consequently, even when there are no concerns on the primary or secondary grounds, people accused of gun crimes …have been detained on the tertiary ground. However, I reiterate that while all handgun offences are matters of serious concern, there still remains a vast spectrum of gun offences. Thus, I expect that the tertiary ground will most often be invoked as firearms offences approach the serious end of the spectrum. (Emphasis added)
[72] I agree with these observations. Considering the four factors in s. 515(10) (c) of the Criminal Code, the case against Mr. Andrade on the second set of charges, even if proven, does not approach the serious end of the spectrum. There was one firearm, it is not alleged that the serial number was removed, it was not loaded, although there was ammunition nearby, there is no evidence it had been used, and it was in a locked closet in his father’s house. Mr. Andrade was in possession of a key to the residence but not the closet and no key to that closet was found in his residence. The Crown’s case depends to a large part on the credibility and reliability of a statement given by a seven year old step-brother. Furthermore, given that the statutory minimum sentence of three years has been struck as unconstitutional, impacts on the fourth factor.
[73] I also think it is significant to recognize that there are, as far as I am aware, no fast track courts dealing with firearm charges. Although Mr. Andrade would face a significant sentence if convicted of all the current charges, if he is not released he would spend his time in a remand centre where programs are limited and after credit for dead time he could end up serving most if not all of what he might be sentenced to. Mr. Andrade is presumed innocent of these charges and the right not to be denied reasonable bail recognizes the right to a fair trial before punishment; see Laframboise, supra at para. 26.
[74] For these reasons I find that detention of Mr. Andrade on the tertiary ground is not warranted. In my view a reasonably informed public would not lose respect or confidence in the administration of justice if Mr. Andrade is released on strict terms of supervision.
[75] Mr. Andrade has met his burden to demonstrate that his continued detention pending trial is not necessary on either the secondary or tertiary ground.
Disposition
[76] For these reasons I grant the application and set aside the detention order made by Justice of the Peace Baum on January 9, 2015 and order that Christopher Andrade be released upon his entering into a recognizance with the following sureties in the amounts as follows without deposit of money or other valuable security, pending his trial and on the following conditions:
- Lorena Elisa Valenzuela (the Mother) jointly with Manual Sala Avila (the Stepfather) in the amount of $10,000 shall act as his sureties.
[77] The conditions are as follows, that Christopher Andrade:
(a) keep the peace and be of good behaviour;
(b) reside at 2306 10th Sideroad, Bradford, Ontario with his parents (“parents’ residence”) and be amenable to the supervision of his sureties and the routine and discipline of this household;
(c) remain in his parents’ residence 24 hours a day, 7 days a week unless in the company of a surety or for the purpose of travelling directly by car to and from his employment at Nestle Canada at 72 Sterling Road, Toronto;
(d) not communicate, directly or indirectly, with his co-accused, Jose Andrade, except in the presence of counsel for the preparation of his defence;
(e) not communicate directly or indirectly with Lito Andrade;
(f) not communicate directly or indirectly with anyone known to have a criminal record;
(g) not consume and/or possess substances listed in the Schedules to the Controlled Drugs and Substances Act, and non-medically prescribed drugs and not associate with anyone known by Mr. Andrade to possess, traffic in, import, export or produce such substances;
(h) not possess or use any cellular telephones or pagers or any other form of wireless communication device;
(i) deposit his passport(s) and all travel documents with the officer in charge of this investigation, Officer Miles, Badge #8489, as soon as this can be arranged and not apply for other passports;
(j) not possess a weapon, as defined in the Criminal Code and not apply for nor possess a firearms acquisition certificate or other form of gun licence;
(k) attend all court proceedings as and when required in the company of one of your sureties;
(l) have a copy of his conditions of release on his person at all times while outside of his parents’ residence and produce them to any police officer if requested; and
(m) upon the attendance of the police at his parents’ residence present himself at the door forthwith for the purpose of ensuring his compliance with this order.
SPIES J.
Released: January 28, 2015
Final edited decision released: February 5, 2015
CITATION: R. v. Andrade, 2015 ONSC 428
COURT FILE NO.: CR-15-90000020-00BR
DATE: 20150128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER ANDRADE
Applicant
REASONS FOR JUDGMENT
SPIES J.
Released: January 28, 2015