ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-10000187-00BR
DATE: 20150908
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW BONITO
Applicant
Scott Clarke, for the Crown
Adele Monaco, for the Applicant
HEARD: July 30, 2015 at Toronto
REASONS FOR BAIL REVIEW RULING
M. G. Quigley, J.
Introduction
[1] This is an application for judicial interim release following the March 26, 2015 decision of Her Worship Justice of the Peace K. Dresher to deny bail to the accused, Andrew Bonito, on both the secondary and the tertiary grounds set out in ss. 515(10)(b) and (c) of the Criminal Code. The applicant is presently detained at the Toronto South Detention Centre. It is now claimed that there has been a material change in circumstances since the time of the applicant’s initial show cause hearing, in that a new plan of supervision is being proposed.
[2] The accused is 25 years old, single and unemployed with a Grade 12 education. Prior to his arrest on these charges, he lived with his parents at 1976 Victoria Park Avenue, Unit 14. He has previously been convicted of other offences. He has a criminal record for assault, theft and failure to comply. Aside from these present obviously serious charges, however, Mr. Bonito has no other outstanding charges.
[3] At about 7:30 a.m. on March 18 of this year, police with the Guns and Gangs Task Force attended at that location to execute a Criminal Code search warrant. The accused was present when the warrant was executed; he was arrested on scene and was charged with five counts of drug related offences, i.e. three counts of possession of a controlled Schedule I substance under the Controlled Drugs and Substances Act for the purposes of trafficking (cocaine x 2 and MDMA x 1), one count of possession of a controlled Schedule II substance for the purposes of trafficking, and possession of over $5,000 alleged to have been obtained by the commission of a crime. Moreover, he was also charged with possession of a loaded restricted firearm and eight firearms or weapons-related charges.
[4] Now, Mr. Bonito has retained new counsel and she brings this application for judicial review and puts forward a new plan involving two new sureties. She says this plan constitutes a material change in circumstances that permits me to review and overrule J.P. Dresher’s decision rendered four months ago and to consider now granting release to Mr. Bonito on the strict terms embodied in the new plan of release. The proposed sureties are Ms. Melissa Dodson, a person who is well known and close to Mr. Bonito’s family, and his uncle, Brahnanand Khelawan. The new plan is discussed below. On this application, the onus of proof rests with the accused.
The Show Cause Hearing
[5] At the time of his show cause hearing in March, Mr. Bonito put forward a plan of release involving two sureties. They were his mother, Karen McIntosh, and his father, Andrew Bonito, senior, and together they pledged a surety of $5,000.
[6] Ms. McIntosh worked as a customer service agent from 10:00 a.m. until 5:00 p.m. on workdays at a Pizza Nova outlet 30 minutes from her home. She did not have ready transportation access between her home and workplace. Without a ride, it would take her about 30 minutes to get home taking the bus. The Justice concluded that the mother was not suitable as the primary surety on these very serious charges since she was “not home a lot.” Further, Ms. McIntosh had failed to honour her obligations when the accused breached restrictive bail terms on an earlier charge when she was acting as his surety, since she did not call the police when that breach occurred.
[7] The second surety, Andrew Bonito Sr., was even less suitable. He was to be the primary supervisory caretaker of his son, a surprising proposal given that Mr. Bonito Sr. had a criminal record that involved firearms charges, and the incidence of violence and assaults, less serious but not unlike some of the charges that Mr. Bonito Jr. is facing. The father had pleaded guilty at the time, "out of convenience so he could get the matter behind him." Nevertheless, it left the Justice of the Peace with the impression that he would be an unreliable surety. Plainly, the Justice of the Peace was concerned that the two individuals proposed as surety were not the kind of persons the court could rely upon in terms of providing moral guidance to or control over the accused.
[8] Moreover, neither of them seemed to have been interested in what was going on in his room, where a Ruger semi-automatic handgun, a taser, a set of brass knuckles, and a significant quantity of marijuana and other drugs and drug paraphernalia and weigh scales were found, right under their noses. They had no idea, nor evidently did they have any interest in what Mr. Bonito Jr. may have been doing in his bedroom. They naïvely protested shock and surprise at the allegations he now faces.
[9] Against those plain and evident deficiencies in the plan put forward at that time, J.P. Dresher found that they would not be suitable sureties and that the plan would not meet the requirements of the secondary ground set out in s. 515(10)(b) of the Code. It was not a plan that could give the court confidence that the safety of the public would be protected or that there was no substantial likelihood that the accused would re-offend if released on those terms.
[10] The Justice of the Peace then considered the tertiary ground. Notwithstanding the presumption of innocence that remains in Mr. Bonito’s favour, she concluded that the contraband items were all found in his room and that no one else had occupied that room except him. As such, she found the Crown's case to be “ample.” Further, the offences, if established, would also call for the imposition of a mandatory minimum term of imprisonment.
[11] Moreover, the items found in that room indicated the existence of a substantial drug operation in the J.P.’s view. There was extensive drug-related paraphernalia, a set of weigh scales, and a very substantial amount of cash, over $6,000, even though the accused was unemployed. In her view, what put this case into the realm of the tertiary ground was not only the nature of the charges and the amount of drugs found plus the weapons, but also the fact there was a loaded gun with eight rounds in the chamber located nearby in the same location as the illicit drugs. That firearm was nearby, ready and available for immediate use. It plainly seems to be associated with the drugs, suggesting a significant illicit retail drug operation, backed up by considerable firepower and other enforcement tools. She found the readiness of the weapons to be “disturbing.”
[12] These background findings led to the double-barreled conclusion, addressing both the secondary and the tertiary ground, found at the heart of her decision on page 74:
And I do find, given the circumstances, given the fact that what's being proposed, in my view, is simply not a suitable, or stringent enough surety, plan of supervision, I should say, with suitable sureties. I find that the, not only is there a substantial likelihood that the accused would reoffend, given all the circumstances, but, on the tertiary ground, I, I also find that detention is necessary to maintain the confidence in the administration of justice.
The New Plan of Release
[13] A new plan of release is now proposed under which the accused would live with Ms. Melissa Dodson at her house on house arrest. Ms. Dodson is a single mother. She has a six-year-old daughter who lives with her. She works as a bartender at a local pub and has worked there for nine years. She works two days a week, on Wednesdays and Thursdays, from 6:00 p.m. to 2:00 a.m. She receives sufficient other income from tenants who rent the basement apartment in her home to support her two-day-per-week work schedule. She knows the applicant and his family from their regular attendance at McGradies pub, where she works, and at annual barbecues. She is prepared to offer a surety of $10,000 as bail for Mr. Bonito and acknowledges that these are savings that she has amassed over the course of nine years and put aside for her daughter and herself. Those monies are important to her and she cannot afford to lose them.
[14] The second surety is Mr. Bonito's uncle, Mr. Brahnanand Khelawan. He is 43 years old and single, and he lives in Scarborough in a bungalow which he has owned for seven years. He has $250,000 of equity in the home. However, his mother also resides with him and she has Parkinson's disease and requires significant care. Mr. Khelawan has reliable employment with a multifaceted catering company. Not only is he prepared to offer $50,000 of the surety of bail for Mr. Bonito, but he is prepared to offer Mr. Bonito employment whereby the accused would be under his direct supervision at all times.
[15] The sureties have communicated carefully with each other relative to the proposed plan of release that would apply to this accused if the court saw fit to release him. Because of the problems associated with the equipment needed to assist his mother with her Parkinson's condition, Mr. Khelawan was practically unable to have Mr. Bonito live with him. As such, Ms. Dodson and Mr. Khelawan agreed that it would be in Mr. Bonito's best interest to have him reside with her, given the circumstances involving Mr. Khelawan’s mother, but they were willing to offer themselves as sureties only on the condition that Mr. Bonito remains on full house arrest so that they could effect full control over Mr. Bonito and his conduct.
[16] Both Ms. Dodson and Mr. Khelawan understand their obligations if accepted as sureties by the court. Their affidavits reflect that they understand their responsibilities. Both acknowledge that they have done their own independent research to be fully cognizant of their duties. Both confirmed that if the accused did not fully comply with the conditions of his release or was not fully amenable to the rules set out by either of them relative to his conduct while on house arrest, they would both immediately recuse themselves as sureties, and contact the police. Both are also plainly aware that any breach of bail that occurs while Mr. Bonito is in the care of either of them will also put their own monies at risk.
The Issue On This Review
[17] That leads to the central issue that is in dispute on this review application and that relates principally to the tertiary ground. It is Crown counsel's position that the Justice of the Peace declined to grant judicial interim release to Mr. Bonito both on the secondary and on the tertiary ground. Indeed the language referred to above in paragraph 12 makes plain that she reached findings relative to both the secondary ground and the inadequacy of the two sureties that were proposed at that time, but also relative to the need for Mr. Bonito to be detained in custody on the tertiary ground. She reached that conclusion having regard to the four factors, in order to ensure that public confidence in the administration of justice would be maintained having regard to the circumstances of the offence and the related factors.
[18] Crown counsel does not accept that the proposed new plan of sureties put forward by Mr. Bonito amounts to a material change of circumstances, but even if it does, relative to the secondary ground, it was his position that there is nothing new that has changed relative to the tertiary ground and as such, that it is not open to me to vary the detention order to the extent that it was made by J.P. Dresher on the basis of the tertiary ground.
[19] In contrast, defence counsel claims that the plan of release that is put forward is materially different. But beyond that, she also says that the tertiary ground should not be the foundation for the continuing detention of the accused where a completely reliable plan of release that addresses secondary ground concerns is being advanced and thus, where there are "factors" beyond what were present at the initial show cause hearing which ought to be taken into account by me as the review judge in determining whether or not to release Mr. Bonito on the tertiary ground as well.
The Governing Legal Principles
[20] 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.
[21] As to the legal character of bail “review” applications, they have often been described as something of a “hybrid” proceeding, and an effective cross between: (i) an appeal on the record which involves a review of the legal propriety of the proceedings at first instance; and (ii) a hearing de novo where fresh evidence may be adduced and new determinations reached.
[22] However, recent jurisprudence from the Supreme Court of Canada provides new clarity relative to the nature of a bail review and the tests that must be met for the initial decision of the Justice to be varied. Equally importantly, the court describes the hybrid nature of a bail review, clarifies the role of the reviewing judge, and describes the circumstances where an initial bail decision may be varied and those where it may not.
[23] In R. v. St-Cloud[^1], the accused and two others were charged with aggravated assault of a bus driver. He was left with serious long-term injuries. The events were captured on videotape. Initially, the Justice of the Peace who presided at the show cause hearing denied bail on both the secondary and the tertiary grounds. The Justice concluded not only that the detention was necessary for the protection of the safety of the public, but also to preserve the public’s confidence in the administration of justice. At the end of the preliminary inquiry, a judge of the Cour du Quebec who heard his application for release concluded that the accused’s detention continued to be necessary under the tertiary ground described in ss. 515(10)(c) of the Code to maintain confidence in the administration of justice. However, on a later review conducted under s. 520 of the Code, the Superior Court judge ordered the accused to be released. On the Crown’s appeal of that order and release to the Supreme Court, the appeal was allowed and the release decision was overturned.
[24] It is important, however, that notwithstanding that the Crown’s appeal was allowed, Wagner J. rejected the Crown’s contention that a detention order must be made when the four factors or circumstances described in s. 515(10)(c) weigh in favour of detention absent other “circumstances” that might justify the release order. At paras. 68-70 he states in part as follows:
68 Section 515(10)(c) could not be worded more clearly: it refers to "all the circumstances, including ... ." In my opinion, Parliament would have worded this provision differently...if it had intended a detention order to be automatic where the four listed circumstances weigh in favour of such an order. In fact, Parliament intended the opposite…
69 … [T]he test to be met under s. 515(10)(c) is whether the detention of the accused is necessary to maintain confidence in the administration of justice. The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision's purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination. The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.
70 Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728…
[25] Wagner J. noted that automatic orders of detention where the four factors in s. 515(10)(c) are present would be contrary to the "basic entitlement to be granted reasonable bail unless there is just cause to do otherwise" that is guaranteed in s. 11(e) of the Charter[^2] and grounded in the presumption of innocence that is guaranteed by s. 11(d) of the Charter (R. v. Hall, at para. 13). Those fundamental rights require the Justice to ensure that interim detention is truly justified having regard to all of the relevant circumstances of the case, not just the four enumerated categories of circumstance.
[26] I find it ironic and counter-intuitive that St-Cloud seems to be viewed by some as a high-water mark of an “automatic detention” school of thought in egregious circumstances where it is considered that the sensibilities of reasonable members of the public would be offended if the accused were to be released. It is ironic given the emphasis of Wagner J. on a tertiary ground detention order being justified only where justified having regard to all of the relevant circumstances, and given his specific rejection of the notion that the denial of bail could ever be an automatic matter.
[27] At para. 87, Wagner J. summarizes ten essential principles that should guide justices in determining whether or not to grant bail under s. 515(10)(c), but two are of specific importance in the context of this application. The first is that s. 515(10)(c) does not create a residual ground for detention to be resorted to only where the detention of the accused is not justified on the primary or the secondary grounds. Rather it is a distinct ground that provides a basis on its own, or in conjunction or aggregate with the other grounds, for ordering the pre-trial detention of the accused. Second, no single circumstance will be determinative of the question and all relevant circumstances need to be balanced. At the end of the day, however, the ultimate question that s. 515(10)(c) calls upon the Justice to answer will be whether, on balance, detention is necessary to maintain confidence in the administration of justice.
[28] Nevertheless, St-Cloud is equally clear and forceful relative to the nature of the detention review hearing and the powers of the reviewing judge. Wagner J. concludes that the review processes set out in ss. 520 and 521 of the Code do not confer open ended discretion on a reviewing judge to vary the initial decision whether to detain or release the accused, but rather, as noted above, provide a hybrid process and remedy. In the absence of new evidence, a reviewing justice is in no better position than the original justice on the show cause hearing to evaluate the need to detain the accused.
[29] This then calls upon the reviewing judge to first consider and determine whether the power of review is appropriate to exercise in the circumstances of the particular case. Those circumstances are threefold:
121 It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. (my emphasis)
Analysis and Conclusions
[30] I begin this analysis by observing that there is no obvious factual or legal error in the reasons of J.P. Dresher denying bail to Mr. Bonito. She considered all relevant matters, and explained why she reached the conclusions she did. I see no basis to conclude that her original decision to detain Mr. Bonito was clearly inappropriate.
[31] The Justice carefully reviewed the proposed terms of the plan of release and suitability of the sureties relative to the secondary ground. She found both to be wanting and inadequate to protect the safety of the public.
[32] The Justice also reviewed the circumstances of the offences relative to the tertiary ground, taking specific account of the four factors enumerated in s. 515(10)(c). She noted that the offences involve the possession of a significant quantity of several types of illicit drugs and possession of a significant amount of money that the accused’s unemployed state suggested could not be assumed to be anything other than proceeds from crime. Moreover, those factors were combined with his evident possession of a loaded and readily available prohibited firearm and ammunition, not to mention other tools of potential intimidation. The Justice could think of no other reason for the possession of those weapons than for the purpose of killing or intimidating someone. She found that all four factors described in the tertiary ground were satisfied: (i) that the Crown’s case was “ample”, (ii) that the offences were grave, (iii) the presence of loaded guns, and (iv), the prospect of a significant term of incarceration.
[33] Thus, where the Justice of the Peace ordered detention on both the secondary and the tertiary ground at the show cause hearing, the question on this review becomes whether the accused has discharged the onus that rests upon him. He must show that there has been a material change in circumstances or new evidence that can justify my interference as the reviewing judge in that initial detention order made by the Justice of the Peace. In the absence of legal error or a clearly inappropriate decision, the prior detention order can be changed only if the accused shows that there has been a material change in circumstances.
[34] In St-Cloud, the necessary elements of material change are addressed at paras. 122-139. There are two central points. First, the Code stipulates in ss. 520(7) and 521(8) that new evidence may be tendered on a bail review application. Thus, on a review such as this, I am permitted to consider the transcript of the earlier proceedings, the exhibits, if any, filed at that time, and “such additional evidence or exhibits as may be tendered by the accused or the prosecutor.” However, in determining what constitutes new evidence for this purpose, with such modifications as the circumstances require in the context of a bail review, the Supreme Court instructs that the evidence tendered must meet the new evidence criteria established in R. v. Palmer[^3]:
- The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial... .
- The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
- The evidence must be credible in the sense that it is reasonably capable of belief, and
- It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[35] Those criteria, applied in this context of a bail review rather than a trial, permit me to consider evidence that is truly new, or that existed at the time of the initial detention but that was not tendered for some reason that is legitimate and reasonable, that in this context is relevant to such a review and that is credible, that is, reasonably capable of belief. Further, and most importantly in this context, the new evidence must be significant and of a nature and quality to lead to the conclusion that it could reasonably have affected the balancing exercise required by s. 515(10) and that was engaged in by the Justice of the Peace.
[36] Dealing first with the secondary ground, it will suffice for present purposes to say that I find that the plan of release that has been put forward by the accused and these two sureties on this review is a credible and reasonable one. Unlike the plan put before the J.P., this plan is comprehensive. It involves a substantial surety totaling $60,000; twelve times what was offered on the original plan. It involves house arrest conditions, with a coordinated plan of supervision by two seemingly reliable sureties, Ms. Dodson and Mr. Khelawan. Mr. Bonito would work for and under the direct supervision of Mr. Khelawan who would also fill in on those occasions when Ms. Dodson was at work to ensure that Mr. Bonito was never unsupervised.
[37] I note that the two affidavits sworn by each of the sureties were sufficiently complete relative to the terms of release and the sureties’ obligations, and that their contents satisfied Crown counsel that there was no need to cross-examine either of the proposed sureties on those affidavits. Although Crown counsel had some concern that there might be a period of time when Ms. Dodson was at work when Mr. Bonito would not be supervised, I accept the explanation of defence counsel that this was a misunderstanding of the two affidavits. Mr. Bonito cannot stay at Mr. Khelawan’s house, but Mr. Khelawan can and would go to Ms. Dodson’s house to cover for her while she is at work. As such, the plan of release that has been put forward does amount to house arrest, with 24-hour supervision of the accused.
[38] In my view, the new plan of release does constitute new evidence tendered by the accused that is credible, that bears upon the question of release and that was not available or contemplated at the initial show cause hearing, arguably due to poor judgment by prior counsel in thinking such a flawed “plan” could succeed. The new plan is one that could reasonably have affected the balancing exercise engaged in by the Justice of the Peace had such a plan of release been tendered on the initial show cause hearing. I find that does amount to a material change of circumstances. In my view, it is one that could have resulted in the granting of release to this accused, at least relative to the secondary ground criteria, on the basis that the plan of house arrest and 24/7 supervision arguably avoids a “substantial likelihood” that the accused will commit a criminal offence or interfere with the administration of justice if released from custody under the proposed plan.
[39] However, whether the accused was properly releasable was also the subject of assessment of the tertiary ground criteria by the Justice. Therefore, that requires consideration whether the proposed new plan of release affects that assessment as well. It also seems plain that merely because an accused person may put forward a plan of release that satisfies secondary ground concerns will not be determinative of whether the detention may be ended or must nevertheless continue owing to the weight of tertiary ground concerns in the context of the balancing exercise that the Code requires.
[40] Defence counsel argues that the new plan constitutes a material change for the purposes of both the secondary and the tertiary grounds. She argues that tertiary ground considerations are not limited to the four factors stipulated in s. 515(1)(c), but that they must take account of other factors and all of the circumstances. Thus, had this plan been presented at that time, counsel claims it would have been an additional “circumstance” or “factor” which would or could have affected the Justice’s determination whether to keep the accused in detention to maintain public confidence in the administration of justice.
[41] I agree with that proposition. However, she goes on to argue that the plainly unsuitable plan that was proposed at the show cause hearing not only affected the determination that secondary ground concerns were not satisfied, but more importantly in this context, also informed and weighed on the Justice’s thinking relative to the need to detain the accused on the tertiary ground. I disagree with that proposition having regard to the Justice’s Reasons. While I do acknowledge that a consideration of whether detention is justified on the tertiary ground cannot be limited simply to the four factors that are enumerated there, as noted above and as Wagner J. makes plain in the Supreme Court’s Reasons, that does not necessarily mean that a proposed new plan of release constitutes new evidence that informs a new determination relative to detention on that ground. The question on the tertiary ground remains whether the detention of the accused is necessary to maintain public confidence in the administration of justice, in all of the circumstances.
[42] Plainly, the new evidence of a release plan does not relate to any of the four factors enumerated in ss. 515(10)(c)(i), (ii), (iii) or (iv). Is not evidence that goes to the apparent strength of the prosecution’s case, does not affect the gravity of the offences, does not affect the circumstances surrounding the commission of the offence, including whether a firearm was used, and it will have no impact on whether a lengthy term of imprisonment will be imposed if the accused is found guilty of one or more of the offences charged. Nevertheless, it is a new circumstance or factor that needs to be taken into account in the balancing exercise, and had it been known at that time, it is new evidence relative to a release plan that would certainly have been taken into account by the Justice in considering the detention of Mr. Bonito.
[43] The question is whether it would have altered the decision she reached. In my view, the answer is that it would not. It is not a case here of me being entitled to substitute my view for those of the Justice of the Peace. Rather, this review exercise calls upon me to consider whether the material change in circumstances put before the court in the form of a new release plan would, at the end of the day, have caused the Justice of the Peace to release the accused. In my view it would not.
[44] J.P. Dresher is clear in her Reasons relative to the circumstances that cause the tertiary grounds to come into play and to require the detention of the accused. The particular facts were the nature of the charges, the quantity of drugs found, the presence of the weapons, including a loaded gun with eight rounds in the chamber. She specifically acknowledged that the result might have been different if the firearm was located in a place where it was safely stored and not available for immediate use, but as she stated, the fact that the firearm found in Mr. Bonito’s room was close at hand, loaded with eight rounds in the chamber, and at the ready, “adds to the circumstances surrounding this offence, just the readiness of that, of the weapons is disturbing.”
[45] In my view, this is what caused J.P. Dresher to reach the conclusion that she did on the tertiary ground that “detention is necessary to maintain the confidence in the administration of justice.” Our case law is replete with decisions that admonish the courts of the need to protect the safety of the public and its confidence in judicial administration in circumstances where both drugs and firearms are found to be in the possession of an accused. J.P. Dresher was plainly alive to that jurisprudence, and had it firmly in mind in determining that the detention of Mr. Bonito on the tertiary ground was necessary in order to maintain public confidence in the administration of justice.
[46] The introduction of the proposed new plan of release on this bail review is a factor that informs whether the secondary ground concerns are met. It is also one factor or circumstance that must be taken into account in determining whether the detention of the accused is required in order to maintain public confidence under the tertiary ground. It must be taken into account together with all the circumstances and the four specific factors in s. 515(10)(c).
[47] In my view, however, this new evidence alone would not have altered the decision of the Justice to order Mr. Bonito detained on the tertiary ground. It could well have caused her to conclude that the secondary ground concerns were met, but I am not persuaded that it would have been the “game changer” to her analysis, or that it would have been the material change in circumstances that would have caused the Justice, after balancing all the factors, to release the accused rather than detaining him, having regard to the concerns she expressed relative to the tertiary ground. As such, it is not open to me to alter that decision.
Conclusion
[48] 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 other 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. For the time being, the detention order will remain in place.
Michael G. Quigley, J.
Released: September 8, 2015
COURT FILE NO.: CR-15-10000187-00BR
DATE: 20150908
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW BONITO
Applicant
REASONS FOR BAIL REVIEW RULING
M.G. Quigley, J.
Released: September 8, 2015
[^1]: [2015] S.C.J. No. 27, <https://www.minicounsel.ca/scc/2015/27
[^2]: Pearson, at p. 691.
[^3]: https://www.canlii.org/en/ca/scc/doc/1979/1979canlii8/1979canlii8.html, [1980] 1 S.C.R. 759 at p. 775, as reproduced in R. v. Warsing, https://www.canlii.org/en/ca/scc/doc/1998/1998canlii775/1998canlii775.html, [1998] 3 S.C.R. 579 at para https://www.canlii.org/en/ca/scc/doc/1998/1998canlii775/1998canlii775.html#par50.