COURT FILE NO.: Crim J(F) 2113/12

DATE: 20151130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PETER IFEJUNA UKWUABA Defendant

COUNSEL: J. Leising, for the Crown S. Von Achten, for Mr. Ukwuaba

HEARD: November 25, 2015

ENDORSEMENT ON s. 524 BAIL HEARING

RICCHETTI, J.:

Contents

BACKGROUND.. 3 2015 CHARGES. 4 THE EVIDENCE ON THE S. 524 BAIL HEARING.. 5 THE MISTRIAL APPLICATION.. 6 THE PROPOSED PLAN OF RELEASE.. 7 THE POSITION OF THE PARTIES. 10 THE LAW... 10 Secondary Ground. 11 Tertiary Ground. 12 ANALYSIS. 13 The Use to be made of the Outstanding Mistrial Application. 13 Analysis and Conclusion on the use of the Mistrial Application. 15 Secondary Ground. 16 The Surrounding Circumstances. 16 The 2015 Charges. 17 The Proposed Plan of Release. 17 Conclusion on the Secondary Ground. 18 Tertiary Ground. 18 Strength of the Crown’s Case. 18 Gravity of the offence. 18 Circumstances Surrounding the Offence. 18 Length of Potential Prison Term if Convicted. 18 Other relevant considerations. 19 Conclusion on the Tertiary Ground. 19 CONCLUSION.. 20

[1] For the reasons that follow, the Defence has failed to meet its onus that the continued detention of Mr. Ukwuaba is not justified under s. 515(10) of the Criminal Code.

[2] Mr. Ukwuaba will remain in custody pending further order of this court.

BACKGROUND

[3] Mr. Ukwuaba was charged with: i. importing heroin into Canada on July 18, 2011; ii. conspiring to import heroin into Canada between July 1, 2011 and July 25, 2011; and iii. possession of heroin for the purpose of trafficking on July 25, 2011. ("2011 Charges")

[4] On March 5, 2013 Mr. Ukwuaba was released on a Recognizance of Bail with surety.

[5] Mr. Ukwuaba, represented by counsel, elected to proceed to trial without a jury. The trial was heard before Justice C. Hill on February 24, 25, 26, 27 and April 29, 2015. Mr. Ukwuaba was represented by Ms. McCabe-Lokos of Mess Zaduk and Kostopoulos at the trial.

[6] Justice Hill released written reasons for judgment on May 11, 2015 and found Mr. Ukwuaba guilty on all three counts. The Recognizance of Bail continued pending sentencing by virtue of s. 523(1) (b) of the Criminal Code. A sentencing hearing was scheduled for June 22, 2015 before Justice Hill.

[7] On June 5, 2015, Ms. McCabe-Lokos was removed as counsel of record and on June 9, 2015, Ms. Von Achten became solicitor of record for Mr. Ukwuaba.

[8] On June 15, 2015, the Defence brought a mistrial application ("Mistrial Application"). The sentencing hearing did not proceed as scheduled to permit the Mistrial Application to be dealt with. On September 21, 2015, Justice Hill scheduled December 10 and 11, 2015 for the hearing of the Mistrial Application.

[9] On November 6, 2015, Mr. Ukwuaba was arrested for importing and conspiring to import heroin into Canada ("2015 Charges"). Mr. Ukwuaba was detained in custody on the 2015 Charges pending a bail hearing.

[10] On November 11, 2015, Mr. Ukwuaba was arrested under s. 524 of the Criminal Code on the 2011 Charges pending a bail application.

[11] On November 24, 2015, the Recognizance of Bail on the 2011 Charges was revoked. Justice Hill delegated the s. 524 of the Criminal Code bail hearing to me.

2015 CHARGES

[12] The summary of the 2015 Charges is as follows:

a) In 2013 the police determined that mail boxes at the Envoy Business Service store, a provider of mail boxes for rental, appeared to have a connection with the importation of heroin into Canada. In October 2013 the police had observed that a package being picked up in an unusual manner: one male person would attend and sign for the package but not leave with the package; another male person would attend later at the same location and pick up the package. Photographs of one of the individuals involved bears a striking resemblance to Mr. Ukwuaba but this has not yet been verified;

b) Shortly before and after March 2015 CBSA seized two packages containing heroin addressed to mail boxes at the Envoy store;

c) In early 2015, the police commenced an investigation regarding the delivery of packages containing heroin to the Envoy store. During its investigation, the police discovered the suspected use of five mail boxes as shipment destinations for packages containing heroin;

d) In September 2015 the police observed Mr. Ukwuaba exiting the Envoy store. Mr. Ukwuaba has no mailboxes rented in his name at the Envoy store. The police suspected Mr. Ukwuaba's involvement given the 2011 Charges;

e) In October 2015 the police again observed Mr. Ukwuaba, a number of times, at the Envoy store. On one occasion, the police observed that, after Mr. Ukwuaba had attended the store, he left with no package. Mr. Anike arrived a short time later at the Envoy store and picked up a package. The police had suspected Mr. Anike's involvement from previous importing of controlled drugs investigations;

f) As a result of observations and discussions with Envoy staff in 2015, the police determined that a common (and unusual) practice at the Envoy store for one or more of the suspected mail boxes was that one male individual would arrive at the Envoy store, sign for the package but not leave with the package. That individual would advise an employee at the Envoy that someone else with written permission would pick up the package at a later time. A second male would arrive at the Envoy store with written permission at a later time and pick up the package;

g) On November 3, 2015, another package destined for one of the mail boxes at the Envoy store was discovered to contain almost a kilogram of heroin. The consignee was Chimrri Barry. The police decided to conduct a controlled delivery of this package ("Controlled Delivery Package");

h) On November 6, 2015 Mr. Ukwuaba went to the Envoy store, signed for the Controlled Delivery Package (despite the fact it was addressed to Chimrri Barry), left without the Controlled Delivery Package and returned to his residence at 3 Rowntree Road. Mr. Anike attended at Mr. Ukwuaba’s residence. Then Mr. Anike drove to the Envoy store, picked up the Controlled Delivery Package and put it in his trunk;

i) Mr. Anike was stopped, arrested and found to be in possession of the Controlled Delivery Package;

j) Mr. Ukwuaba was arrested a short time later; and

k) The police later discovered that Mr. Anike had used approximately 18 permission letters to pick up packages from the Envoy store in 2015.

[13] The case for the Crown on the 2015 Charges against Mr. Ukwuaba appears to be a very strong case.

THE EVIDENCE ON THE S. 524 BAIL HEARING

[14] The Crown relied on:

a) the findings of fact and finding of guilt of Mr. Ukwuaba set out in Justice Hill's Reasons for Judgment of May 11, 2015;

b) the Recognizance of Bail dated March 5, 2013;

c) the Information for the 2015 Charges; and

d) Summary of the Investigation of the 2015 Charges.

[15] Defence counsel submitted that I should review the Mistrial Application record and the Crown's responding record. The Crown acceded to this submission. The Defence seeks that I draw some conclusion from the Mistrial Application record, namely, that the Mistrial Application is "not frivolous" or is "not devoid of merit".

[16] The Defence then proceeded with the viva voce evidence of two sureties: Mr. Basil Egwuonwu and Mr. Prince Ejiofor.

THE MISTRIAL APPLICATION

[17] The Mistrial application record contains the affidavit of Mr. Ukwuaba. Mr. Ukwuaba raises a number of issues in his affidavit that:

i. his trial counsel attempted to have him change his evidence for trial;

ii. there were pre-trial discussions regarding whether Mr. Ukwuaba should testify at trial. Mr. Ukwuaba stated that Ms. McCabe-Lokos told him that if he did not follow her instruction not to testify, she would not continue to represent him at trial;

iii. there were pre-trial discussions regarding the testimony of Mr. Ukwuaba 's girlfriend at trial;

iv. identified certain evidence, which Mr. Ukwuaba alleges was available at trial if his counsel had pursued obtaining the evidence and he had been permitted to testify. This evidence, the Defence submits, would have responded to some of the credibility issues expressed by Justice Hill in his Reasons for Judgment; and

v. he failed to understand his Charter rights and caution prior to the police videotaped interview.

[18] While briefly touching on the alleged Charter breach and the suggestion of unprofessional conduct by his counsel, the main thrust of Mr. Ukwuaba's affidavit is that Ms. McCabe-Lokos prevented him from testifying at the trial before Justice Hill.

[19] The Responding record to the Mistrial Application includes the affidavits of the lawyers at Messrs Zaduk and Kostopolous, namely, Ms. McCabe-Lokos, Chris Kostopoulos and Peter Zaduk, the latter lawyers being involved prior to and assisting during the trial. The lawyers disagreed with virtually all of Mr. Ukwuaba's statements in his affidavit and produced documents signed by Mr. Ukwuaba regarding their recommendations on the conduct of the matter and Mr. Ukwuaba’s decision not to testify at trial.

[20] The position of the lawyers, including Ms. McCabe-Lokos is that it was Mr. Ukwuaba's decision not to testify at the trial and the production of a document setting this out, signed by Mr. Ukwuaba, confirms their evidence.

THE PROPOSED PLAN OF RELEASE

[21] Mr. Ukwuaba's proposed plan of release is that:

a) There would be two sureties: Mr. Basil Egwuonwu and Mr. Prince Ejiofor. They are prepared to pledge approximately $350,000 and $60,000 (being the approximate equity in Mr. Ejiofor's Brampton home and a condominium) respectively;

b) Mr. Ukwuaba would be subject to house arrest except for:

i. medical/dental emergencies; and

ii. work purposes

c) Before leaving his home, Mr. Ukwuaba would call or email the sureties and advise them where he is going. Before leaving the destination, Mr. Ukwuaba would call or email the sureties to advise he was returning to his home. The same communications would be copied or provided to the Officer in Charge.

d) Mr. Ukwuaba would install a Rogers’ surveillance system in his home, with cameras in various rooms excluding the bathroom and bedrooms. The sureties could, using the cameras over the internet or cell phones, see Mr. Ukwuaba at his home. If the sureties couldn't see Mr. Ukwuaba at his home on the surveillance system, the sureties could contact Mr. Ukwuaba and require him to present himself before a camera for them to verify he was at home;

e) Mr. Ukwuaba would have one cell phone with internet capabilities so that, while away from his home, the sureties could contact him and ask him to photograph his location and send them a photograph which would permit the sureties to verify Mr. Ukwuaba's location; and

f) Mr. Ukwuaba would not attend any store, place or building where packages may be sent or received by mail, courier or otherwise.

[22] It appears that Mr. Ukwuaba operates a car and heavy vehicle dealership business where he buys the vehicles at auctions throughout Ontario and sells the vehicles to purchasers, some of whom come from outside of Canada. Mr. Ukwuaba did not testify at the bail hearing or provide an affidavit for the bail hearing. The information regarding Mr. Ukwuaba’s vehicle business is second hand information from the sureties and there is little or no additional evidence regarding Mr. Ukwuaba’s business.

[23] In my view, there are serious shortcomings with both sureties.

[24] Mr. Egwuonwu has only known Mr. Ukwuaba for the past five years primarily through an association whose members come from the same area of their native country. The association members meet every second month. Mr. Ukwuaba is a member of the association. Mr. Egwuonwu is the president of the association. Mr. Egwuonwu doesn't socialize or go to restaurants with Mr. Ukwuaba. It appears that the extent of their contact is limited to association matters, meeting at church, and the purchase of a vehicle by Mr. Ukwuaba for Mr. Egwuonwu. Mr. Egwuonwu lives approximately 30 minutes away from Mr. Ukwuaba. He doesn't know the other proposed surety very well, essentially, only through their membership in the same association. Mr. Egwuonwu hasn't spoken to Mr. Ukwuaba since his arrest but, nevertheless, is prepared to be his surety. Mr. Egwuonwu is self employed and installs furniture throughout the province. He is busy with his work. While Mr. Egwuonwu testified that he is only coming forward to be a surety because of the Rogers’ surveillance system, Mr. Egwuonwu had no experience with or knowledge about this system and proceeded based solely on the capabilities of the system described by Defence counsel. Mr. Egwuonwu admitted that he would have to rely on the honesty of Mr. Ukwuaba when he was away from his home.

[25] Mr. Ejiofor has known Mr. Ukwuaba for approximately ten years. They were roommates for a period of time which ended in 2006 and 2007. Afterwards, Mr. Ejiofor appeared to have little contact with Mr. Ukwuaba, aside from being members in the same association. For example, while Mr. Ukwuaba lived in Etobicoke, Mr. Ejiofor thinks he may have visited Mr. Ukwuaba twice but couldn't remember the name of the street. Mr. Ejiofor did not appear to have any detailed information regarding the 2011 Charges or the 2015 Charges. A serious question arose about his suitability as a surety when Mr. Ejiofor testified that, about four months ago, he purchased the condominium that Mr. Ukwuaba owned or had resided in for a number of years. The purchase of this condominium took place after Mr. Ukwuaba was found guilty on the counts by Justice Hill. Mr. Ejiofor made an approximately $48,000 down payment on the condominium. However, he also testified that he had bought a house in 2014 for himself and his family to live in for about $315,000 but was only able to put a down payment of five per cent of the purchase price. A question arises as to the source of funds as he had approximately a $50,000 down payment when he had assumed a 95 per cent mortgage on his personal home the previous year and the coincidental timing of his purchase of the condominium after Mr. Ukwuaba was found guilty. In any event, Mr. Ukwuaba is now Mr. Ejiofor's tenant! Mr. Ejiofor is not sure if Mr. Ukwuaba's rent payments are made in cash. At a minimum, Mr. Ejiofor has a financial interest to keep Mr. Ukwuaba out of jail and paying his rent to him. Mr. Ejiofor is also "not too familiar" with the proposed surveillance system and has some limitations on the use of his cell phone while driving his forklift truck at work.

[26] Neither proposed surety knew who Mr. Ukwuaba's prior surety was. This is another indication that the sureties do not know Mr. Ukwuaba very well.

[27] As a result of these concerns, I am not persuaded that the sureties are of sufficient quality to properly supervise the proposed plan of release to this court's satisfaction.

[28] What of the balance of the proposed plan of release?

[29] There are several serious shortcomings of the supervision portion of the proposed plan of release:

a) While away from his home and at work, Mr. Ukwuaba would be travelling throughout the province without his sureties. While out of his home, the level of supervision is minimal at best and, as agreed to by Mr. Egwuonwu, is dependent on the honesty of Mr. Ukwuaba. Where Mr. Ukwuaba goes and what he does in between his home and various destinations would be essentially and completely unsupervised;

b) Mr. Ukwuaba deals with the buying and selling of vehicles. The sureties testified Mr. Ukwuaba has some international customers who travel to Canada to meet with him for him to purchase their vehicles. Given both sets of charges involve the importation and conspiracy to import heroin, dealings with unknown persons from abroad leaves considerable room for potential abuse with little or no supervision;

c) There is very little evidence on the Rogers’ surveillance system, its reliability, ability to be turned on/off, impact of internet interruptions, ability to circumvent it and so on. Rogers would have no knowledge or involvement in the supervision unlike third parties who supply ankle monitoring systems currently in use. Any shortcomings in the Rogers' surveillance system would result in a lack of supervision of Mr. Ukwuaba; and

d) According to the proposed plan of release, Mr. Ukwuaba must have a cell phone and internet connection. From Justice Hill's reasons, the importation of the heroin in the 2011 Charges was facilitated through the use of a cell phone. Having access to a cell phone and internet may be more of a facilitation of an importing scheme than effective supervision.

[30] I conclude that the proposed plan of release is extremely weak.

THE POSITION OF THE PARTIES

[31] Counsel agreed that a determination on the s. 524 bail hearing before me would be accepted by counsel as the bail hearing decision on the 2015 Charges in the Ontario Court of Justice.

[32] Counsel also agreed that this was a reverse onus situation, that is, the onus is on Mr. Ukwuaba to show "cause why his detention in custody is not justified within the meaning of subsection 515(10)" of the Criminal Code.

[33] The Defence submits that it has met the onus for Mr. Ukwuaba's release from detention. The proposed plan of release is reasonable and meets the purpose and intent of the interim release provisions in the Criminal Code.

[34] The Crown submits that the Defence has failed to meet its onus on the secondary and tertiary grounds and the detention of Mr. Ukwuaba should continue.

THE LAW

[35] S. 524(4) of the Criminal Code provides as follows:

(4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or

(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

(emphasis added)

[36] S. 515(10) of the Criminal Code provides as follows:

(10) 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.

Secondary Ground

[37] The secondary ground requires detention where it is necessary to do so, having regard to all the circumstances, that there is a substantial likelihood the accused will commit a criminal offence.

[38] As set out in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711:

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.

Tertiary Ground

[39] The Supreme Court in St. Cloud sets out the approach to bail under the tertiary ground:

[55] Section 515(10)(c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decide whether detention is justified.

[56] It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case or the possibility of a lengthy term of imprisonment.

[71] Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c) Cr.C., I think it will be helpful to give a few examples. Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.

[40] The Supreme Court in St. Cloud summarized the essential principles applicable to s. 515(10)(c) bail application as follows:

[87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

• Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.

• Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

• The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.

• A court must not order detention automatically even where the four listed circumstances support such a result.

• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

• The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.

• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

• To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

• This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre‑trial detention will usually be ordered.

ANALYSIS

The Use to be made of the Outstanding Mistrial Application

[41] A number of issues arose during this bail hearing regarding the Mistrial Application.

[42] While Defence counsel submitted that the Mistrial Application was not an application for a new trial based on "ineffective assistance of counsel", I am persuaded that it is. The relief sought is a mistrial. The essence of a mistrial application is to prevent a miscarriage of justice. See R. v. Burke, 2002 SCC 55 at paras 74 and 75. The essence of an appeal on the basis of "ineffective assistance of counsel" is founded on the basis that "Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal". See R. v. Archer, (2005) 2005 CanLII 36444 (ON CA), 203 OAC 56 at para 120. In other words, both types of applications seek to prevent a miscarriage of justice.

[43] In my view, because the basis of the Mistrial Application is the "ineffective assistance of counsel", it appears to me that the principles applicable to an appeal based on "ineffective assistance of counsel" would also generally apply to the Mistrial Application, notwithstanding it is before sentencing.

[44] Counsel considered this issue to be significant to this bail hearing.

[45] The Defence counsel submitted that the test on the mistrial application is different and lower than the test on appeal based on ineffective assistance of counsel. The Defence submitted that all it has to demonstrate is that Mr. Ukwuaba was prevented from testifying. As a result, Defence counsel submitted that I should only consider the Crown's case to be a "strong one" when considering the factors in s. 515(10).

[46] On the other hand, the Crown submitted that there is a strong presumption of competence in favour of counsel and, where ineffective assistance of counsel is alleged, the onus on the accused is a "heavy" one. See Archer paras 118-121 and 139 - 144. The Crown submitted that it was highly relevant that Mr. Ukwuaba has been already found guilty and that the finding of guilt is a powerful factor for the continued incarceration notwithstanding the outstanding Mistrial Application.

[47] Mr. Ukwuaba included, in his affidavit, a considerable amount of new evidence not in evidence at trial. The purpose of the proposed new evidence was to demonstrate the availability of evidence supporting Mr. Ukwuaba's innocence but for the alleged ineffective assistance of counsel.

[48] I inquired why this bail hearing could not have taken place after Justice Hill had heard and decided the Mistrial Application, potentially only two to three weeks from this date. The Defence submitted that there was urgency that this bail application is dealt with now due to the impact of continued detention on Mr. Ukwuaba's family, particularly his young autistic child. This inquiry led to another disagreement between counsel: whether this court's s. 524 bail decision can be varied by Justice Hill pursuant to s. 523 of the Criminal Code. I made it clear to counsel that I was not and would not express any views on Justice Hill's jurisdiction to vary any order made herein.

[49] As a result I am left with the following:

i. I am asked to consider the contents of the Mistrial Application to formulate a view (even if it is only a preliminary view or a view as to whether it is frivolous or entirely devoid of merit). Any views that I might form on the Mistrial Application, would be without the benefit of viva voce evidence on the conflicting affidavits. The further issue is whether it is appropriate or necessary for me to express any view on the Mistrial Application; and

ii. the Mistrial Application contains new evidence that was not part of the evidence at trial. J.A. Cronk set out in R. v. A.A.C., 2015 ONCA 483 summarized the approach to the admission of new evidence at a bail hearing, albeit a bail hearing under s. 520 or 521:

[52] Fourth, where bail is sought on a review under ss. 520 or 521 of the Criminal Code based on new evidence that is said to constitute a material change in circumstances, the admissibility of that new evidence is to be evaluated in accordance with a modified version of the four-part test for the admission of fresh evidence set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759: St-Cloud, at paras. 128 – 29. However, “[g]iven the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end”, and in view of the relaxed approach to the rules of evidence at bail hearings mandated by s. 518 of the Criminal Code, the four Palmer criteria are to be applied in a flexible fashion: at para. 129.;

[50] It is unclear at this time whether this new evidence will be admissible as part of the Mistrial Application.

Analysis and Conclusion on the use of the Mistrial Application

[51] The Defence does not allege that Justice Hill made any errors of law or fact in his Reasons for Judgment. The sole issue is whether Mr. Ukwuaba was prevented from testifying at trial as the basis of the Mistrial Application.

[52] I agree that there are some differences between bail pending appeal and a s. 524 bail hearing. Bail pending an appeal is governed by s. 679 of the Criminal Code. A s. 524 bail application is based on a consideration of the grounds of detention found in s. 515(10). The secondary and tertiary grounds in s. 515(10) are the relevant grounds in this bail hearing.

[53] In my view, the findings of guilt must be considered. Without considering the outstanding findings of guilt would be to disregard:

a) the words: "having regard to all the circumstances in s. 515(10)(b); and

b) the words: "necessary to maintain confidence in the administration of justice" in s. 515(10)(c);

[54] Both the secondary and tertiary grounds require a broad consideration of all relevant factors and a weighing of those factors.

[55] A judicial determination of guilt is valid and enforceable until otherwise determined by a court of competent jurisdiction. In R. v. Farinacci, (1993) 1993 CanLII 3385 (ON CA), 86 CCC (3d) 32 the Ontario Court of Appeal concluded that a conviction is a conclusive finding of guilt unless and until it is reversed:

The right not to be denied reasonable bail without just cause is rooted in the presumption of innocence, which is substantially spent by the conviction. Indeed, the presumption of innocence is spent by the verdict, be it a conviction or an acquittal. A conviction does not create a presumption of guilt. It constitutes a legal, conclusive finding of guilt. Like an acquittal, it is enforceable unless and until reversed. After a conviction, there is no presump­tion left, one way or the other. There is an enforceable finding of guilt.

(emphasis added)

[56] As a result, Justice Hill's findings of guilt are valid and enforceable until such time as he grants the mistrial application or the findings of guilt are overturned by a higher court. In these circumstances, it would make little sense that the findings of guilt would not be factors, and highly relevant factors, in this bail hearing.

[57] I conclude that Justice Hill's findings of guilt are a highly relevant factor to be considered in this bail application. To be absolutely clear, this is but one of the factors to be considered and, is not and was not, the sole factor in this bail detention decision.

[58] I am mindful that bail can be revisited by this court if the Mistrial Application is granted as that would likely constitute a "material change". If the Mistrial Application is denied, Mr. Ukwuaba will be sentenced. Mr. Ukwuaba could then seek bail pending appeal from the Court of Appeal.

[59] It is not necessary and I decline to make any comment on the apparent strength or weakness of the Mistrial Application. The fact that the Mistrial Application is outstanding does not detract from the significance and relevance of the findings of guilt against Mr. Ukwuaba.

Secondary Ground

The Surrounding Circumstances

[60] Mr. Ukwuaba was found guilty of importing and conspiring to import heroin.

[61] The circumstances of the 2011 Charges on which the findings of guilt were based on findings of fact that: Mr. Ukwuaba was seen driving and waiting for a package delivery just prior to delivery of the package; Ukwuaba picked up a package containing heroin; the package was addressed to a third party; the package was signed for by Mr. Ukwuaba; the package was picked up at an address other than where Mr. Ukwuaba lived; and a cell phone in Mr. Ukwuaba's car had the tracking number of the package.

The 2015 Charges

[62] While on bail, Mr. Ukwuaba was observed by the police: attending at a parcel pickup location known to be the destination for heroin shipments; Mr. Ukwuaba had no mail box at that location; Mr. Ukwuaba entered the store and signed for a package; the package contained heroin; the package was addressed to a third party; Mr. Ukwuaba left without the package; Mr. Ukwuaba within a short time met with Mr. Anike who thereafter attended at the store and picked up the package signed by Mr. Ukwuaba with written permission to pick up the package.

[63] There are many striking similarities between the allegations in the 2015 Charges and the findings of fact in the 2011 Charges.

[64] While not necessary for a determination on the secondary ground, there is also some circumstantial evidence that Mr. Ukwuaba had attended at the same store location a number of times earlier than November 2015 and he has a connection with Mr. Anike, a taxi driver, who picked up the package containing heroin and was found to have had some 18 permission slips to pick up packages at the same location in 2015.

[65] If the 2015 Charges are proven, the outstanding Recognizance of Bail was not deterrence to Mr. Ukwuaba’s commission of a further offence(s) while on bail.

The Proposed Plan of Release

[66] For the aforementioned reasons, the weak proposed plan of release would not address the ability and likelihood that Mr. Ukwuaba would commit another offence if released.

Conclusion on the Secondary Ground

[67] Given the above, I conclude there is a substantial likelihood that Mr Ukwuaba would commit a further offence if released.

[68] The Defendant has failed to discharge his onus to establish that continued detention is not required.

Tertiary Ground

[69] Let me first review the factors set out in s. 515(10) (c).

Strength of the Crown’s Case

[70] Given the findings of guilt by Justice Hill, this is a highly significant factor in favour of continued detention.

Gravity of the offence

[71] Heroin has been described in the authorities one of the most "pernicious of the hard drugs", the "most destructive and the most dangerous" drug which "tears at the very fabric of our society".

Circumstances Surrounding the Offence

[72] This was a deliberate and sophisticated scheme to import heroin, through the use of a third party name, the use of a home other than Mr. Ukwuaba's home, the use of a courier service for international delivery of a package, and the use of tracking numbers to minimize Mr. Ukwuaba's exposure when the delivery occurred. Further, the amount of heroin imported was more than 1.1 kilogram with a value of up to $330,000, depending on the manner of distribution.

Length of Potential Prison Term if Convicted

[73] Importing of heroin has always attracted lengthy penitentiary sentences. At the one kilogram level, absent extenuating circumstances, the range of sentence will likely be incarceration in the area of 9 to 13 years.

Other relevant considerations

[74] The allegations and strength of the Crown case in the 2015 Charges are further factors to consider and, in particular, given the same type of activity, drug, and similarity in the method of importation.

[75] Does the proposed plan of release reduce or eliminate any concerns regarding the release of Mr. Ukwuaba under the tertiary ground? In my view, it would not, given the aforementioned weakness in the proposed plan of release.

[76] I am not persuaded that the unfortunate consequences to Mr. Ukwuaba’s autistic child of his continued detention, is a significant relevant factor in this bail hearing.

Conclusion on the Tertiary Ground

[77] In my view, when considering all of the factors, the confidence in the administration of justice of a reasonable person, fully aware of the principles of judicial interim release, would be undermined if this court were to release Mr. Ukwuaba.

[78] The Defence has failed to discharge its onus on the tertiary ground.

CONCLUSION

[79] The Defence has failed to satisfy the onus that Mr. Ukwuaba's detention is not justified under s. 515(10).

[80] Mr. Ukwuaba’s detention shall continue.

Ricchetti, J.

Released: November 30, 2015

CITATION: R. v. Ukwuaba, 2015 ONSC 7454 COURT FILE NO.: Crim J(F) 2113/12 DATE: 20151130

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PETER IFEJUNA UKWUABA

ENDORSEMENT ON S. 524 BAIL HEARING

RICCHETTI, J.

Released: November 30, 2015