ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM(F) 15-1274-00BR
DATE: 20151214
B E T W E E N:
HER MAJESTY THE QUEEN
Iona Jaffe, for the Crown
Applicant
- and -
DONOVAN BROWN
Deepak Paradkar, for the Respondent
Respondent
HEARD: November 27, 2015 in Brampton
REASONS FOR JUDGMENT – BAIL REVIEW
(These reasons are subject to a non-publication order pursuant to the provisions of s. 517(1) of the Criminal Code.)
F. Dawson J.
[1] The Crown applies pursuant to s. 521 of the Criminal Code to review the decision of Justice of the Peace R. Cotter dated October 14, 2015 granting judicial interim release to Donovan Brown. Mr. Brown is charged with a number of offences including two counts of importing cocaine into Canada, conspiracy to traffic in cocaine, possession of cocaine for the purpose of trafficking and conspiracy to import firearms into Canada. He was released on a recognizance in the amount of $120,000 with two named sureties and strict conditions of house arrest. The sureties are Mr. Donovan’s mother-in-law and her husband, both of whom testified on the original bail hearing.
[2] The Crown focuses its attention on the secondary and tertiary grounds on this application. In oral submissions Crown counsel attributed four errors to the justice of the peace which may be summarized as follows:
he overlooked evidence that the accused is likely to commit further offences if released on bail;
he mischaracterized the scope of the accused’s drug activities;
he underemphasized the seriousness of the firearms offences; and
he overlooked obvious concerns that arose at the hearing regarding one of the two proposed sureties.
The Offences
[3] The charges against Mr. Brown arise from two separate investigations, each of which was a project involving wiretaps. The first investigation was in Newfoundland. The second was in Ontario. The Newfoundland investigation ended first. It resulted in Mr. Brown being charged in Ontario with two counts of importing cocaine into Canada on flights from St. Lucia which landed at Pearson International Airport in Mississauga. Mr. Brown was arrested on those charges on September 2, 2015 and released on consent on September 8, 2015.
[4] During the course of the Newfoundland investigation the accused and David Blevins had been intercepted discussing the recruitment of four drug couriers. Two were utilized to bring in approximately four kilos of cocaine on February 10, 2015. Two were utilized to bring in approximately four kilos of cocaine on March 30, 2015. In each case the police arrested the couriers and seized the drugs.
[5] In the meantime the Ontario investigation had also been ongoing. The police developed evidence that the accused trafficked in one kilo of cocaine in July 2015 and that he conspired to traffic in one-half kilo of cocaine in August 2015. The police also developed evidence of a conspiracy to import firearms into Canada from Florida in the period between July 9 and August 28, 2015. However, the police notified authorities in the United States about what was occurring in regard to the firearms and they disrupted the plan by making an arrest in Florida which prevented the firearms from being imported into Canada.
[6] The existence of the Ontario investigation was not disclosed until October 6, 2015. On that date Mr. Brown was rearrested and charged with the additional offences that are before the court. However, all of the additional offences predate September 8, 2015. In other words, when the Crown consented to Mr. Brown’s release on September 8, 2015 the Crown was fully aware of the circumstances that gave rise to Mr. Brown’s rearrest on October 6, 2015, including the conspiracy to import firearms.
[7] The charge of conspiracy to import firearms into Canada relates to a plan to bring 30 to 40 handguns acquired in Florida into Canada. Intercepted communications reveal that one of Mr. Brown’s associates was purchasing and stockpiling handguns in Florida. These firearms were being acquired at gun shops and from individuals. Nine or ten semi-automatic handguns were seized by U.S. authorities. The exact origin and circumstances of acquisition are not known for some of the firearms. The wiretap evidence demonstrates that Mr. Brown had a buyer lined up in Canada for most of the firearms.
The Personal Circumstances of the Accused
[8] The accused did not testify at the bail hearing or file an affidavit in response to the Crown’s s. 521 application. However, important information about him emerged at the bail hearing.
[9] Mr. Brown is a Canadian citizen, is married and has four children, all of whom were under ten years of age at the time of the bail hearing. He and his wife live in a home they own in Oakville. There is no evidence that Mr. Brown had regular employment but there was evidence that he was involved in flipping real estate for profit, had previously owned a night club, and also worked as a basketball scout for potential NBA players.
[10] Mr. Brown has no criminal record in Canada but does have a somewhat dated conviction in 2002 in the United States related to trafficking in ecstasy. He received a custodial sentence which he completed in Canada pursuant to a prisoner exchange program. Full details of this conviction were not put before the court.
[11] Mr. Brown’s counsel questioned witnesses at the bail hearing to demonstrate that Mr. Brown had previously been charged with drug offences in Canada but was found not guilty. The evidence indicated that Mr. Brown had been on bail for those offences for extended periods of time and had never been found to be violating his bail conditions.
The Plan of Release
[12] The justice of the peace essentially accepted the accused’s proposed plan of release. Mr. Brown is required to reside at home with his wife and children in Oakville, subject to strict terms of house arrest. His mother-in-law, Elizabeth Harden, has moved into his home with her daughter and her grandchildren in order to supervise the accused. She is a named surety.
[13] Ms. Harden’s husband, David Barnik, is also a surety. He testified that he had a job available for the accused in his successful and expanding lumber business. Arrangements were in place for the sureties to transport Mr. Brown to work where he would be supervised by Mr. Barnik. The release order provides that the accused may only leave his home in the presence of a surety.
The Reasons for Release
[14] The original bail hearing took two days to complete. It was conducted as a joint hearing for Mr. Brown and one of his co-accused. The justice of the peace stayed beyond normal court hours on the second day in order to complete the hearing and to provide oral reasons for his decision. His reasons for releasing Mr. Brown occupy just over 15 pages of transcript.
[15] The reasons of the justice of the peace address everything that was raised in the submissions of counsel at the conclusion of the evidence. He correctly indicated that the onus was on the accused on the drug charges and on the Crown on the firearms count. He acknowledged the importance of the presumption of innocence and then went on to explain his conclusions in respect of each of the primary, secondary and tertiary grounds. He also referred to some of the leading cases counsel had put before him. While he did not make detailed reference to specific items of evidence, having reviewed the entire record that was before the justice of the peace I find his oral reasons to be easily understood and responsive to the important issues and to the manner in which the case was argued before him.
Analysis
[16] The Crown submits that the justice of the peace made a number of errors which should lead me to undertake a de novo assessment of Mr. Brown’s suitability for release. I summarized these grounds of error at the outset of these reasons.
[17] The first thing I would note is that none of the alleged errors fall within the category of an error of law. They are all related to whether the justice of the peace failed to consider or give adequate weight to items of evidence Crown counsel submits are important, or about how the justice of the peace evaluated and weighed the seriousness of certain aspects of the case.
[18] In R. v. St. Cloud, 2015 SCC 27 the Supreme Court of Canada recently undertook an extensive examination of the principles governing bail reviews pursuant to ss. 520 and 521 of the Criminal Code. The court held, at para. 121, that it will only be appropriate to intervene on a review if the justice erred in law, if there is fresh evidence which gives rise to a material change in circumstances, or if the decision under review was “clearly inappropriate”. In the circumstances of the present case it is only this third basis which is advanced to support my intervention.
[19] At para. 121 Wagner J. held that the decision under review would be clearly inappropriate “if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another.” However, in the next sentence Justice Wagner further clarified that the reviewing judge does not have the power to interfere “simply because he or she would have weighed the relevant factors differently”. Consequently, it is apparent that to succeed the Crown needs to do more than convince me to draw the balancing of factors together in a somewhat different fashion than the justice of the peace did.
[20] The import of the foregoing has been the subject of recent analysis by Trotter J. in R. v. Dang, 2015 ONSC 4254. I have found the discussion in that case to be very helpful. I agree with Justice Trotter’s statement, at para. 32, that in St. Cloud the court rejected an open ended standard of review based on a mere re-weighing of relevant factors. Justice Trotter went on to conclude that the standard must be deferential to the original decision maker in the same sense described by appellate courts as applicable when reviewing the suitability of a sentence on a sentence appeal (para. 37).
[21] When I apply this standard I reach the conclusion that I am unable to say that the decision reached by the justice of the peace in this case was clearly inappropriate. I note at the outset that the accused had no criminal record in Canada and only one conviction in the United States which was not well described in the evidence. Moreover, the Crown had consented to his release on September 8, 2015 on a recognizance in the amount of $100,000 with full knowledge of all the factors the Crown now says the justice of the peace failed to properly balance in such a way as to conclude he should be detained. In these circumstances it is very difficult for the Crown to now successfully argue that a public weighing of the same factors leading to a conclusion of release on a recognizance in the amount of $120,000 with two sureties and strict conditions is clearly inappropriate.
[22] Having said this, I turn now to the specifics of the Crown’s arguments.
[23] The Crown submits that in addressing the secondary ground the justice focused solely on the fact that the accused had no record for breaching court orders and had been compliant on previous releases. The Crown seeks to buttress this with a submission that the justice failed to give adequate or any weight to the evidence that the accused held an “executive position” in an international drug ring. The Crown submits that the fact that the arrest of the accused’s drug couriers did not deter him should have been given weight by the justice of the peace.
[24] Having regard to the deferential standard of review previously discussed I am unable to accept this submission. With respect to the secondary grounds the justice asked himself whether there was any “substantial likelihood” that the accused would commit further offences if released. This is, of course, the correct test. The reasons of the justice of the peace reflect that he was considering that question in the context of the proposed plan of release, just as he should do. He acknowledged the Crown’s argument that the accused had “shown a pattern” of offending and agreed that was true. But, in context, he contrasted that to a pattern of obeying court orders. The justice said that was his primary concern in view of the proposed sureties and plan of release.
[25] There is more to what was said by the justice of the peace. In my view, none of it suggests that he was failing to appropriately discharge the responsibility that fell to him to make a determination under the secondary grounds.
[26] Crown counsel also submits that the justice failed to consider evidence of contact between Mr. Brown and Rionne Martelly following Mr. Brown’s consent release on September 8, 2015. There are intercepts which reflect Mr. Martelly and Mr. Brown conversing in a guarded fashion. The reasons of the justice indicate he was aware of these intercepts. I note they were referred to in submissions. However, there was no non-communication clause with Mr. Martelly in Mr. Brown’s September 8, 2015 recognizance and it cannot be said beyond mere suspicion that Mr. Brown and Mr. Martelly were discussing criminal activity. Mr. Brown was not charged with breach based on those conversations.
[27] Overall, it seems to me that the reasons of the justice reflect that he was taking proper factors into account and I see no error when I apply the deferential standard discussed above.
[28] In regard to the tertiary grounds the Crown contends that the justice of the peace erred in characterizing the evidence of conversations about drug deals as being “between two individuals” allegedly committing serious offences. The justice said that while there was a network, there was not a “multifaceted criminal organization”. Crown counsel says this reflects error because there was an international conspiracy involving couriers and there were purchasers for the drugs in Canada.
[29] Nothing in the record substantiates that the justice was not aware of or failed to consider the items of evidence the Crown has referred to. The disagreement is about how these were characterized by the justice after he took them into account. It is clear from the reasons that the justice of the peace was firmly of the view that the Crown had a strong case for serious offences. I am not persuaded the justice erred in using the words he chose to describe what he was dealing with. The intercepts the justice heard were primarily between the accused and two other people. He acknowledged there was a network in operation.
[30] The Crown also submits that the justice of the peace erred by underestimating the seriousness of the conspiracy to import firearms charge. This is in relation to the tertiary grounds. These submissions are the ones which have given me the greatest pause.
[31] The justice of the peace said, in essence, that the firearms were the subject of a separate conspiracy and not part of the drug charge. Crown counsel says that does not diminish the seriousness of the firearms charges. I agree but I am not persuaded that the justice was by these comments intending to diminish the seriousness of the firearms charge. He was making the point that this was not a situation where drugs and guns had been found together. At the bail hearing two cases had been cited to him for the proposition that guns found together with drugs will often lead to a denial of bail even for someone without a criminal record. It is against that background that I conclude this comment by the justice of the peace must be evaluated.
[32] In evaluating the seriousness of the firearms charge Crown counsel criticizes the justice of the peace for saying that the conspiracy involved an individual in the United States purchasing firearms legally. What the justice actually said was that the firearms were purchased legitimately for illegitimate means. Crown counsel submits this is an error because we do not know that the firearms were purchased lawfully.
[33] Crown counsel is correct to say that the record does not establish that all of the firearms were purchased lawfully. However, it is also unclear whether any of the purchases were unlawful. What is clear is that everyone knew that the importation of the firearms into Canada was an offence. Looking at the reasons of the justice of the peace as a whole I conclude he was looking at features that were relevant. He was pointing out that the firearms were not acquired by unlawful means such as by theft. He also mentioned that it was not a “repeat situation”. This would be in contrast to the drugs. He also noted that it was fortunate that the firearms never made it to Canada. These were legitimate considerations that affected the seriousness of the offence.
[34] I observe that at no point did the justice of the peace say or intimate that it would not have been very serious if the firearms had made it to Canada. The characterization of the conspiracy as “unsophisticated” is a highly subjective description which does not mean that the offence was not considered to be serious.
[35] I find that when I read the oral reasons of the justice of the peace as a whole they do not reveal that he gave such excessive weight to one factor or such insufficient weight to another that I am able to say that the result was “clearly inappropriate”.
[36] The last area in which the Crown alleges error is in relation to the acceptance of Elizabeth Harden as a surety. Crown counsel submits that at places in her evidence Ms. Harden expressed the belief that the allegations against Mr. Brown are untrue. I do not think the record reveals that she went so far. She indicated that she would make up her mind after seeing all of the evidence and said that she was open to reaching the conclusion that Mr. Brown was guilty.
[37] Crown counsel also refers to a passage from Ms. Harden’s cross-examination where she expressed the view that to her way of thinking the seriousness of the firearms charge would depend upon why the end recipient of the firearms wanted the guns. She referred to sports figures or club owners who may want them for the purpose of protection or self-defence.
[38] I would point out that Ms. Harden is a civilian with no criminal record. She is a mother and a business woman whose good character was never placed in doubt. There is no evidence she was well versed in the laws relating to firearms.
[39] In any event, these were matters for the justice of the peace, who saw and heard the witnesses, to consider. I see no error in relation to this concern.
[40] For all of the foregoing reasons I would dismiss this application. However, I would like to add that had I found one of the errors alleged and reviewed the matter de novo, I would have upheld the release order made in this case.
[41] The accused has only a dated criminal record in the United States. He has had bail in Canada in the past and has never violated his conditions. Two reputable sureties in a very substantial amount are in a position to supervise. The proceedings may be lengthy.
[42] Most significantly, however, I find that it is very difficult to conclude that the tests under the secondary and/or tertiary grounds should lead to a detention order when the Crown consented to the accused’s release on September 8, 2015 with full knowledge of all the circumstances. At that time the police and the Crown clearly did not feel that detention was required in order to protect the public or the repute of the administration of justice. Given the plan of release and the availability of substantial sureties I would not come to a different conclusion.
[43] The application is dismissed.
F. Dawson J.
Released: December 14, 2015
COURT FILE NO.: CRIM(F) 15-1274-00BR
DATE: 20151214
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
DONOVAN BROWN
Respondent
REASONS FOR JUDGMENT – BAIL REVIEW
F. Dawson J.
Released: December 14, 2015