Court File and Parties
COURT FILE NO.: 15-15017347-03 DATE: 20150918 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Regina v Romaine Samuels
BEFORE: E.M. Morgan J.
COUNSEL: Darryl Singer, for the Applicant (Defendant) Barb Glendenning, for the Respondent (Crown)
HEARD: September 17, 2015
REASONS FOR DECISION – APPLICATION FOR DETENTION ORDER REVIEW
[1] The Applicant seeks review of the decision of His Worship Justice of the Peace J. Rosenfield rendered June 16, 2015, in which he was denied interim release and a detention order was made. The Justice held that the secondary ground for detention as set out in section 515(10)(b) of the Criminal Code applies, and that there is a “substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”.
[2] In R v St-Cloud, 2015 SCC 27, [2015] SCJ No 27, at para 121, the Supreme Court set out the basis on which a person in the position of the Applicant can seek review of the decision to detain him pending trial:
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… Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521, the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[3] Counsel for the Applicant made it clear that he does not contend that the Justice erred in law, or that he exercised his discretion inappropriately or otherwise made an incorrect decision based on the record that was before him. He concedes that the Justice put proper emphasis on the presumption of innocence enjoyed by the Applicant, and that he generally applied the law in a correct fashion. Applicant’s counsel submits, however, that there is now new evidence that shows a material and relevant change; and that evidence is a new set of sureties and a new plan of release.
[4] The new plan contains what counsel for the Applicant says are two essential differences from the one submitted to the Justice of the Peace: a) the Applicant will not reside in the Mount Olive area of the Rexdale neighbourhood where he had been living, but rather will move to Brampton to live with one of the new sureties; and b) the Applicant will agree to wear an ankle bracelet so that his comings and goings from the house can be electronically followed. According to the Applicant, these factors are significant in that they ensure that the sureties will be able to properly control him during his period of judicial interim release.
[5] Applicant’s counsel points out that the Justice expressed concern that the sureties would be hampered by the fact that the Applicant was to reside in the same area as many of the members of the criminal organization to which he is accused of belonging; in fact, the house in which he had proposed spending his release time is adjacent to the dwelling in which the police found much of the evidence of trafficking and other offences connecting him to the alleged criminal organization. The new proposal to live in an altogether different part of the Greater Toronto Area is presented as remedial evidence that addresses the Justice’s concern in this regard. Applicant’s counsel also submits that an ankle bracelet provides additional comfort in that it will allow the Applicant’s movements to be constantly monitored.
[6] In St-Cloud, at para 128, the Court made reference to its own prior decision in R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, at 775, in setting out criteria for rendering new evidence “material and relevant” for the purposes of an application of this nature:
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.
[7] At the opening of the hearing before me, counsel for the Crown submitted that the Applicant has not met these fundamental criteria. She argues that the Palmer factors constitute a threshold that the Applicant must cross before the court can consider whether the new evidence is credible or whether it addresses the concerns under section 515(10)(b). Crown counsel states that under the circumstances there is no need for an evidentiary hearing, as the Applicant has not satisfied the Palmer criteria.
[8] Counsel for the Applicant disagrees with the Crown on the merits and argues that the Palmer criteria have all been met. However, he takes no issue with the Crown’s proposed sequence for the hearing. He is content to proceed with this argument about the Palmer factors as a preliminary matter, and agrees that this is a logical and efficient way to address the issues.
[9] By way of background, the Applicant is 21 years old and has a criminal record as a young offender for sexual assault and assault. In addition, a warrant for his arrest was issued in Winnipeg, Manitoba on March 10, 2013 for breaking and entering contrary to s. 348(1)(b) of the Criminal Code, which is still outstanding.
[10] Further, on July 16, 2014, the Applicant was charged with unlawfully taking a motor vehicle without consent, failure to remain at the scene of a motor vehicle accident, and obstructing a peace officer by giving a false name during a police investigation. The Applicant was released on a Recognizance of Bail with respect to this series of charges, and was still on bail when he was arrested on the charges currently before the court.
[11] As for the charges which the Applicant currently faces, he was arrested on June 1, 2015. At that time he was charged with four counts of breaking and entering a dwelling house and committing theft, two counts of breaking and entering a dwelling house with intent, one count of attempting to break and enter a dwelling house, and one count of failure to comply with a probation order contrary to s. 733.1(1) of the Criminal Code. The break-ins were investigated by the police as part of a wider investigation dubbed Project Pharoah, conducted under Part VI of the Criminal Code.
[12] In a supplementary affidavit, the Applicant deposes that he retained his current counsel at the last moment prior to appearing before the Justice of the Peace on June 11, 2015. Apparently, his previous lawyer who had prepared the application for interim release was suspended by the Law Society just prior to that hearing date. Applicant’s present counsel advises that he proceeded with the hearing on June 11th in reliance on the written record and plan of release which were prepared by the previous lawyer in the context of the break and enter charges the Applicant thought he was facing.
[13] Counsel for the Applicant further explains that during the morning of the first day of the hearing on June 11th, he was informed by the Crown that a series of further charges were being brought against the Applicant. These further charges include weapons trafficking, heroin and cocaine trafficking, conspiracy to traffic in both of those substances, and several counts of participating in a criminal organization for the purpose of drug and weapons trafficking.
[14] According to Applicant’s counsel, the additional charges changed the tenor of the hearing. He explains that he proceeded with the matter because the Applicant was anxious to obtain his release, but in point of fact the sureties that were arranged and the plan of release that was prepared by the previous lawyer in respect of the break and enter charges were not appropriate given the new charges that the Applicant turned out to be facing.
[15] Counsel for the Crown responds to this by explaining that there were numerous other suspects being investigated in Project Pharoah (apparently some 80 persons are in one way or another involved). As the investigation was ongoing, the existence of the wiretaps and the overall project could not be revealed to the Applicant on the date of his arrest. It was determined that because of a string of break-ins across the GTA and a suspicion that more were being planned for the near future, the Applicant should be arrested and charged at the earliest possible time. Crown counsel went on to explain that it then took another week or so before the rest of the Project Pharoah suspects were arrested. Accordingly, the new charges were only brought forward on June 11th, which was the first day of the hearing.
[16] Crown counsel further points out that the application before the Justice was brought by the Applicant, not by the Crown. She correctly points out that since the Applicant was already out on bail for the July 2014 charges when he was arrested on June 1, 2015, the hearing was a show cause hearing pursuant to s. 515(6) of the Criminal Code – i.e. the onus was on the Applicant to show that his release was justified. Procedurally, it was for the Applicant and his counsel to schedule the hearing when they were satisfied that they had put together a sufficient evidentiary record and plan of release.
[17] She also notes that when the Applicant and his counsel learned of the additional charges on June 11, 2015, the hearing was promptly adjourned and did not reconvene again until four days later on June 15th. No new record or plan of release was produced by the Applicant during that four day gap, no new sureties were proposed, and no further requests for an adjournment were made by his counsel. The Applicant was not forced to proceed on June 15th, but rather did so out of choice.
[18] As indicated, the Crown contends that the Palmer criteria have not been met here. Specifically, Crown counsel submits that there is no explanation as to why the new evidence could not have been submitted in the previous hearing before the Justice of the Peace. Furthermore, she submits that in any case the new proposal does not address the real concerns expressed by the Justice, and so there is no reason to believe that the new proposal would have impacted on the decision not to release the Applicant.
[19] I agree that no real explanation has been provided as to why the sureties being proposed here were not put forward last time around. Applicant’s counsel says that this is not a case where the Applicant had the sureties available but chose not to ask them to do him this favour. What he says is that the sureties proposed here had not come forward at the time of the hearing on June 15th, and so therefore were not available at all to the Applicant. Absent these strong sureties, the Applicant put forward the somewhat weaker sureties that were rejected by the Justice.
[20] In my view, the explanation that these sureties had not stepped forward last time around is really no explanation at all. The sureties now put forward by the Applicant are his godmother, his sister, and two long time family friends who state in their affidavits that they have known and looked after the Applicant most of his life. To say that these close relations had not stepped forward to help the Applicant at the time of his June 15th hearing is not exactly to say that they were not available; his sister was still his sister and his godmother was still his godmother, and had been since his birth. The more likely explanation is that they had not been approached, but that is just speculation; no actual explanation has been provided by the Applicant.
[21] The Applicant opted to present two other individuals as sureties at his hearing on June 15, 2015, and that proved unsuccessful. I hasten to add, however, that the Justice was not unimpressed with the two sureties with whom he was presented. He expressly found them to be honest and credible individuals.
[22] The present group of four proposed sureties may or may not be just as honest and credible as the last two, but given the positive observations about the previous sureties articulated by the Justice below, the change in sureties here appears to be little more than change for its own sake. As Hill J. commented in R v Ferguson, [2002] OJ No 1969, at para 17, “[s]imply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances.”
[23] Applicant’s counsel submits that what is significant here is the fact that the new sureties represent not just different individuals, but a new milieu for the Applicant. The plan being proposed here will take the Applicant away from the negative influences in his old neighbourhood. While the original sureties were his neighbours in his old gang territory, the new sureties will force a change in scenery, which will in turn make it more difficult for the Applicant to return to criminality.
[24] Crown counsel argues forcefully that the problem that the Justice had with the previous proposal was not that the sureties could not be relied upon to enforce the bail conditions, but rather that the Applicant could not be trusted to adhere to the restrictions imposed on him regardless of who the sureties might be. If that is the case, of course, then a change in proposed sureties will be a meaningless change.
[25] The proof of the Crown’s point is found in the very submissions made by Applicant’s counsel on June 15, 2015. At the time, counsel went out of his way to compare the two sureties that he was then proposing with the youthful surety – the Applicant’s girlfriend – that was put in place upon the Applicant’s release from detention following his prior arrest on July 16, 2014. The explanation given for the Applicant having re-offended while still out on bail is telling. As counsel for the Applicant explained it to the Justice:
[I]n addition to the proposed sureties any plan requires, for the lack of a better term, buy-in from the accused… The previous bail, quite frankly, it simply did not have, for whatever reason, a serious enough surety and strict enough conditions. And so Mr. Samuels was left in a situation where he fell in with people he was in with. He was unable to avoid it. However, what’s being proposed before Your Worship today is a very different form of release. It is a release, not with a surety being a 20 year old girl, but rather with sureties who, as my friend concedes are clearly upstanding, decent church going members of the community. [emphasis added].
[26] In other words, the problem was not with the sureties but with the Applicant. After all, the proposed individuals were to be his sureties, not his private jailers. The Justice concluded that if the Applicant could not be trusted with one surety, he likewise could not be trusted with two. In the present hearing, he now proposes four. These four sureties, however, will have to contend with the same person who the court has been told could not help but to re-offend when he had only one surety.
[27] This court commented in R v Hassan, [2015] OJ No 3749, at para 12, that, “…whether to grant release will never be about the perfection of the release plan, but rather about 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.” [emphasis added]. According to Applicant’s counsel’s own description, the Applicant has not met this standard.
[28] I note that the Applicant has deposed that his girlfriend, who, as indicated above, was his surety for his release on the July 2014 charges, is now pregnant, and that this development has changed his attitude. He says that he now wants to be a responsible father to the child. Needless to say, I commend that sentiment. However, the Applicant has conceded that the same girlfriend was unable to control his impulse to criminality when she was his sworn surety, and the recently discovered pregnancy gives me little to go on in coming to any different conclusion.
[29] The Applicant seeks to counter his own lack of trustworthiness by offering to wear an ankle bracelet that will track his whereabouts while on interim release. The Crown objects to this proposal, and indicates that there is no affidavit or other evidence as to how the bracelet works, whether it has fully operational GPS functions and can follow a person anywhere, and whether the technology can be worked around by a knowledgeable person such that it will be used to obscure the Applicant’s breach of bail conditions more than it to monitor and enforce those conditions.
[30] Applicant’s counsel says that the private company that supplies the ankle bracelet was not willing to provide any such affidavit or other evidentiary support. Counsel advises that he was told that if the court approves the bracelet proposal, the company will provide a letter to the Applicant’s sureties explaining how the bracelet works. According to Applicant’s counsel, that is all that the court needs in this regard.
[31] With due respect, I cannot assess the merits of the ankle bracelet proposal without knowing a bit more about the device. Crown counsel is correct that certain fundamental information about how the bracelet works and how it will assist in monitoring the Applicant are called for. Although I can generally observe that GPS technology appears to be commonplace in the market today, I cannot simply take judicial notice of how a device with which I am not intimately familiar works, and am hampered by the fact that the supplier of that device will apparently provide no explanation.
[32] Applicant’s counsel puts some weight on the fact that the new plan of release entails a change of venue for the Applicant. As indicated above, he contends that changing neighbourhoods will get the Applicant away from his familiar territory and criminal influences. He notes that the Justice emphasized in his reasons of June 16, 2015 that the plan presented to him proposed that the Applicant continue living right next door to a dwelling where other members of the same criminal organization lived and gathered, and that this proximity was a serious concern.
[33] Counsel for the Crown responds to this by pointing out that the Applicant’s July 2014 offense was in Brampton (the very township where it is proposed that the Applicant will now reside), the break and enter offenses for which the Applicant was initially charged on June 1, 2015 were in Willowdale and Scarborough, and the trafficking offenses were all over the GTA and in Hamilton. She contends that location simply is not an important ingredient in countering the criminal conduct at issue here. The Applicant is alleged to have been operating across large swaths of southern Ontario, and within that context the change from Mount Olive to Brampton is not particularly relevant or helpful.
[34] I agree with the Crown that the change in the Applicant’s location is not alone a significant change. His newly proposed sureties will not be able to imprison him in Brampton, regardless of how honest and reliable they turn out to be.
[35] The Justice saw that the Applicant had been charged with new offences when he was released with one surety, and determined that there was reason to believe he will commit more offences if he is released with two sureties. That has not changed now that the Applicant has proposed four sureties and a new area of suburban Toronto.
[36] I am cognizant of the negative impact of pre-trial detention and of the Supreme Court’s observation that, “positive steps should be taken to ensure that detention before trial is kept to a minimum”: Ell v Alberta, 2003 SCC 35, [2003]1 SCR 857, at para 24, citing M.L. Friedland, Detention Before Trial (University of Toronto Press, 1965), at p. 17; see also G.T. Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Carswell, 2010), at pp. 1-46. Nevertheless, the public must have confidence “that persons charged with serious crimes will not be able to…harm others or interfere with the administration of justice while awaiting trial”: St-Cloud, at para 4.
[37] The Applicant shall continue to be detained under section 515(10)(b) of the Criminal Code.
[38] The application is dismissed.
Morgan J.
Date: September 18, 2015