ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-1540000156-00BR
DATE: 20150709

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DWIGHT HUTCHINSON

Applicant

Emily Marrocco, for the Crown

Dirk Dirstein, for the Applicant

HEARD: July 6, 2015 at Toronto

REASONS FOR BAIL REVIEW RULING

M. G. Quigley, J.

Introduction

[1] This is an application for judicial interim release for Dwight Hutchinson. The accused, Dwight Hutchinson, is 28 years old and charged with possession of a firearm, possession of a loaded prohibited firearm, possession of a firearm knowing it was obtained by crime, possession of a prohibited weapon, and possession of a firearm while prohibited from doing so.

[2] These offences arise out of an execution of a Criminal Code search warrant for 2015 Sheppard Ave. E. in the city of Toronto, for apartment 323. While officers were preparing to execute the search warrant at that location, Mr. Hutchinson exited the apartment with a female in his company and entered the elevator. He exited the elevator to the parking garage area and was placed under arrest at that time. When he was searched incident to arrest, he was found to be in possession of a small semi-automatic Browning Arms Company .25 caliber firearm loaded with ammunition, located in his rear right pants pocket. The serial number for the firearm is 246952.

[3] Apparently, when he was searched and the firearm was located, Mr. Hutchinson responded "Oh, that's not mine, and I've been through this before!" That was an accurate statement since Mr. Hutchinson has prior illegal firearms possession convictions, and at the time he was arrested here, was subject to s. 109, lifetime firearms prohibition order.

[4] A further search of his apartment under the terms of the search warrant did not reveal the presence of any other contraband at his residence. However, neither was there any documentation of any kind to refer to lawful ownership of that or any other firearm. Importantly, however, Mr. Hutchinson is also charged with and was arrested as part of the execution of search warrants against Mr. Joel Alexander. He stands charged with 31 offences, including numerous firearms related offences, possession of unauthorized firearms, possession of firearms contrary to prohibition orders, possession of marijuana and cocaine for the purposes of trafficking, as well as possession of proceeds of crime. The warrant to search Mr. Alexander's residence at 223 Lakeshore Blvd. W., apartment 2402, was executed at the same time as officers proceeded against Mr. Hutchinson. There are several other accused also involved in the matter.

[5] It will suffice for present purposes to say that very substantial quantities of illegal drugs were located at that residence, together with drug-related paraphernalia, equipment that would be used for the purposes of cooking crack cocaine, several vacuum sealed bags of marijuana, and two Glock handguns were located in the glovebox of Mr. Alexander's Mercedes vehicle. In fairness to Mr. Hutchinson, however, he is not charged with all those same offences as Mr. Alexander. While the ITO sworn to obtain the warrants described to him as Mr. Alexander’s drug dealing partner, defence counsel says that is a totally conclusory statement made without the benefit of supporting evidence. Indeed, Mr. Dirstein, who represented him on this bail review described Dwight Hutchinson as a “not so bad person” associated with a very bad person.

[6] At the time of his arrest, and subsequent appearance and show cause bail hearing held before His Worship, J.P. Kowalski on January 19, 2015, Mr. Hutchinson consented to his detention at that time. Crown counsel was asked by the Justice whether Mr. Hutchinson understood the ramifications of making that decision. The Crown also noted at that time that it was her view that the offences were Crown onus involving a loaded firearm, but she confirmed that she was satisfied that the Crown would be able to show cause in response to questions asked by the Justice of the Peace.

[7] Subsequent to that time, Mr. Dirstein was retained as counsel for Mr. Hutchinson, and he has now seen fit to bring this application for judicial review and to put forward a plan involving two sureties. The proposed sureties are the applicant's mother, Hyacinth Stephenson and his employer Stephen Murray. Initially there was a plan for the accused to live with another female surety, but at the last minute this was changed; that surety was abandoned and the matter proceeded with the two.

[8] Initially, at the time of his show cause hearing in January 2015, he understood that in order to be granted judicial interim release he would be required to enter into a recognizance with sureties and at that time, he did not know of anyone who would be able to act for him as a surety, which resulted in his consent to a detention order being made at that time. But now, since his mother Hyacinth and former employer Mr. Murray have volunteered to collectively take on the responsibilities of acting as his surety, Mr. Hutchinson now seeks judicial interim release on entering into a recognizance with conditions that he reside with his mother at her residence, and leave that address only under the supervision of one of the two sureties, or to attend court. It was also contemplated in the plan of release that he would be allowed to leave the residence for employment purposes under the direct supervision of Mr. Murray, and finally, if the court required, Mr. Dirstein indicated that Mr. Hutchinson would be prepared to wear an ankle monitoring bracelet in order to ensure that he complies with the conditions of his recognizance, and provided materials from The Recovery Science firm about electronic surveillance using electronic tracking bracelets.

[9] The Crown, however, is opposed to this application and contends that the accused needs to continue to be detained in custody pending his trial on two grounds. First, the Crown contends that the proposed plan of supervision put forward by the sureties is inadequate to actually ensuring that the accused stays out of trouble pending trial, and in particular, the Crown alleges that gaps in that plan, either on weekends or during periods when the accused would be transported from his mother's residence to the location in Scarborough or Durham where Mr. Murray is carrying on his construction projects, means that it is far from a case of the full supervision that defence counsel claims it to be.

[10] Further, the Crown submitted that those deficiencies do not address the public’s risk that the accused will commit another offence while on bail. In particular, the concern is that he would go and buy another handgun. The Crown also opposes the granting of judicial interim release on the basis of the tertiary ground. So, in summary, the Crown is opposed to this application, and contends that the accused has not “shown cause” as to why the detention order should be vacated, arguing that the continued detention of the accused in custody is justified on both the secondary and tertiary grounds. The Crown argues that the bail review application should be dismissed.

The Governing Legal Principles

[11] Section 515(10) of the Criminal Code spells out the only statutory grounds for the pre-trial detention of an accused. It states:

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.

[12] As to the legal character of bail “review” applications, they are often described as something of a “hybrid” proceeding, and an effective cross between: (1) and appeal on the record which involves a review of the legal propriety of the proceedings at first instance; and (2) a hearing de novo where fresh evidence may be adduced and new determinations reached.

[13] Mr. Justice Gary Trotter, in the third edition of his authoritative text on The Law of Bail in Canada, after carefully reviewing the different perspectives on the nature of bail reviews, as reflected in the jurisprudence, drew these conclusions, at p. 8-16, as to broad scope of review permitted by s. 520 of the Code:

On the basis of these considerations, a broad scope of review, one that is faithful to the constitutional features of the bail decision, is desirable. It is also sustainable under ss. 520 and 521. The moving party on a review ought to be able to have a previous order vacated: 1. on the basis of a material change of circumstances; and/or 2. by persuading the reviewing judge that a different result ought to have been reached by the justice. Given the preferred standard of review (i.e “correctness”), considerations relating to the reasonableness of the justice’s conclusions on fact and law become superfluous. This is not to say that no importance ought to be attached to the conclusions reached at first instance. Findings of fact and determinations of credibility, features of first-instance decision-making which normally attract some measure of deference on appeal or review, ought to be afforded similar treatment under ss. 520 and 521. Of course, it is open to either party to adduce evidence which displaces the wisdom of relying on these types of findings.

The Personal Circumstances of the Accused

[14] As to the personal circumstances of the accused, he is now 28 years old. As noted, he has a significant previous criminal record. While it is true that his last period of significant offending was in 2006, convictions were entered on February 16, 2007 for possession of a firearm or ammunition contrary to a prohibition order, possession of a prohibited or restricted firearm with ammunition, and possession of a firearm knowing the serial number has been tampered with. This was eight and a half years ago. It was then that, in addition to his other sentences, he was issued a lifetime firearm prohibition order. His youth offences go back to 2003. The accumulated convictions include robbery, breaking and entering with intent, carrying a concealed weapon, possession of break in tools, possession of a weapon and the more recent firearms offences. This means this is now the third time Mr. Hutchinson faces a charge for breach of a prohibition order, and substantively for the casual possession of prohibited weapons.

[15] In previous years the accused has been employed as a construction worker, and his former employer stands up for him as surety on this proceeding.

The Release Plan

[16] Ms. Hyacinth Stephenson, the mother of the accused, testified on this bail review. To her credit she courageously agreed to pledge $20,000 in support of her position as a surety for her son. She was strong and adamant in the assurance she tried to provide to the court that she would not have been willing to put that amount at risk, an amount which if lost could also result in her losing her home, just to have her son come home and then violate the terms of his bail. She was adamant that she would pick up the phone and call the police if her son was released to her as a surety to live at her residence and did not abide by her rules and regulations and live in the house in the manner that she directed. I accepted her evidence as credible and heartfelt.

[17] However, I did have concern as she was cross-examined about the extent to which she actually knew her son. Questions asked by Crown counsel about her familiarity with where he was living, how frequently he visited with her, whether she had ever visited his residence, and her level of knowledge of where her other adult children worked, individuals who would also be called upon to effectively exercise a semi-surety type of role, caused me discomfort about her ability to actually follow through with controlling the conduct of the accused as she claims that she would. I do not doubt her sincerity for a second, but as noted below, I fear that her son's background may cause him to be less compliant in adhering to the rules of her household then a release to live with her as surety would encompass.

[18] As for Mr. Murray, his former employer, he has also testified and was willing to pledge the very significant sum for him of $40,000. He testified it would take him a long time to regain those savings if his trust in Mr. Hutchinson proved to be misplaced and he were to violate his bail conditions. He thought he would be able to keep Mr. Hutchinson pretty much fully employed and expressed willingness to go out of his way to try to make the plan work. Again, I was impressed by his trust and faith in Mr. Hutchinson and willingness to make such a significant, for him, pledge in support of his role as surety.

[19] Nevertheless, the evidence showed that time gaps would be present in the plan of release, on the weekends at particular times, and essentially, that there would be no supervision of the accused as whichever unnamed person designated took on the task of driving him from his mother’s residence to meet up with Mr. Murray every work morning.

Analysis and Conclusions

[20] The accused presently faces very serious criminal charges. They involve the possession of a prohibited firearm and ammunition. These are repeat gun possession allegations which necessarily would entail a likely term of incarceration in the penitentiary of 5 to 6 years were he to be convicted, even if the mandatory minimum for a second firearms possession offence continues to be ruled unconstitutional.

[21] Further, on the evidence that is acknowledged, the unregistered loaded and restricted firearm that was found in the back right pocket of Mr. Hutchinson's jeans when he exited the elevator in the parking garage of his apartment building seems plainly to have been in his possession. Consequently it would seem that the Crown's case is a strong one. While the accused is presumed to be innocent of these charges, the Crown’s case against the accused appears to be formidable.

[22] From my perspective, that may well be true, but defence counsel plans to attack the search warrants that were granted relative to Mr. Hutchinson's residence on the basis of allegedly conclusory statements contained within the affidavit to obtain that search warrant, conclusory statements that describe Mr. Hutchinson as a drug dealer when Mr. Dirstein alleges there is no evidence to support that conclusion, and thus, that those conclusory statements, to the extent that they caused the Justice of the Peace to conclude that the warrant should issue, did not provide adequate legal grounds, and consequently, the warrant relative to Mr. Hutchinson should be quashed on the basis that the search and seizure of his residence and his person violated his section 7 Charter rights.

[23] It seems to me that this bail review is not the time to litigate the likelihood of success of this avenue of attack being brought by Mr. Hutchinson against the charges laid against him, and it would be inappropriate for me to comment on oral nude to any likelihood of success that the defence may achieve in that endeavor. While the full search warrant, as very heavily redacted, was put before me in the materials provided on the application for judicial interim release, it seems inappropriate and essentially impossible to gauge the likelihood of success on such a Charter motion. In my view it would effectively require me to engage in a kind of pseudo-garofoli application. It is not plain to me how an ITO as heavily redacted to deal with confidential informant privilege as this ITO was can realistically be reviewed or how I could fairly assess the sufficiency of the warrant or the information sworn to obtain it on this application. Absent success on that Charter application, however, plainly the Crown has a very strong case that Mr. Hutchinson was once again in possession of firearms. It was found on his person, in his back pocket.

[24] In these circumstances, where the accused bears the onus of having to “show cause” justifying his release, the accused must satisfy the court that his detention is not justified. In relation to the secondary ground, more particularly, the accused must establish that his detention is not necessary for the protection or safety of the public, and that there is no substantial likelihood that, if released from custody, the accused will commit a criminal offence or interfere with the administration of justice. The release plan devised by the accused must persuasively address these issues.

[25] In my view, in light of all of the circumstances of this case, the accused has not shown cause as to why his detention was not justified on the secondary ground. I am similarly of the view that, on this bail review, notwithstanding the elements of the release plan proposed on behalf of the accused, there are too many gaps when the accused will not be under the supervision of his sureties, and those gaps inform my continued fear that there is an opportunity for him to re-offend that presents a substantial risk given his prior conduct, and thus that the accused has still not shown cause as to why his consent detention order should now be vacated. In my opinion, his detention remains justified on the secondary ground.

[26] I appreciate that this plan of release may be the best one that can realistically be put together for the accused at the present time, and again, I would emphasize that my remarks as to its suitability or adequacy are not meant to reflect negatively upon the proposed sureties, or others who may have offered their voluntary assistance. But, in my view, in all of the circumstances of this case, it just does not “show cause” justifying the release of the accused on the secondary ground.

[27] The core reason is simple. It is that the accused’s prior failure to obey court orders prohibiting him from possessing firearms demonstrates to me that I cannot be certain, given his prior conduct and the gaps that exist when he will not be under the direct supervision and watchful eye of his sureties, that he will not again feel the need to be in possession of a handgun. There are time gaps when there will be no one governing his conduct to ensure that cannot happen.

[28] Mr. Dirstein observed correctly that there is no release plan that is perfect and I agree with that. It is not about the perfection of the release plan, because no doubt some might argue that the perfect release plan is one that effectively amounts to incarceration, but with a different set of gaolers. But as I observed to him, it will never be about the perfection of the release plan, but rather the courts’ ability to have confidence that the accused can be trusted to abide by the plan at all times, whether within eyesight of his sureties or not, and whether supervised or not. In this case, notwithstanding the sincerity of the plan and the best wishes of the sureties, I fear that they are putting themselves at inordinate risk in this plan. The prior offences and continuing violation of firearms possession prohibition orders imposed by the court suggests that Mr. Hutchinson is more likely to be ungovernable and I cannot be assured to the extent I require that the plan will succeed.

[29] In addition, while it is perhaps unnecessary to draw any final conclusions in this regard, I must say that I am also of the opinion that the detention of the accused is justified as well on the tertiary ground outlined in s. 515(10)(c) of the Criminal Code, in that his detention is necessary to “maintain confidence in the administration of justice.” In this regard, I note that: (1) the Crown’s case against the accused appears to be very strong apart from the uncertainty of a seemingly uncertain Charter application; (2) the firearms possession crimes allegedly committed by the accused are very serious; (3) the circumstances surrounding the commission of the alleged offences, including the accused’s apparent possession of a firearm and ammunition as he was heading out into the public domain for an evening with the woman who was accompanying him, means there would have been a loaded restricted and prohibited handgun walking around on the streets of Toronto with the extreme risk that poses for unsuspecting members of the public; and (4) if convicted, the accused is liable to be sentenced to a lengthy term of imprisonment, seemingly of at least 4 or more years duration and involving penitentiary incarceration. See: R. v. Whervin, [2006] O.J. No. 443 (S.C.J.); R. v. Baba, [2006] O.J. No. 5387 (C.J.); R. v. Wilson, [2009] O,J, No. 3644 (S.C.J.); R. v. David, [2006] O.J. No. 3833 (S.C.J.).

Conclusion

[30] For these reasons, the application is dismissed. The detention order will remain in place. Of course, as time passes, and as more is learned about the case, if it becomes apparent that the strength of the Crown’s case changes significantly or a greater appearance develops of the potential Charter challenge or facts emerge which suggest that it has a reasonable chance of success, such a change in the circumstances may permit a further bail review application pursuant to s. 520(8) of the Code. But, for the time being, the detention order will remain in place.

Michael G. Quigley, J.

Released: July 9, 2015