CITATION: R. v. Vanderwal 2016 ONSC 1889

COURT FILE NO.: 15-1520 Brockville

DATE: 2016/03/31

PUBLICATION BAN IN EFFECT UNDER S. 517 OF THE CRIMINAL CODE

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Richard Vanderwal

Applicant

James Meloche, for the Crown

Lawrence Greenspon, for the Applicant

HEARD: February 16 & 29, 2016 (Brockville)

REASONS RE BAIL REVIEW

Aitken J.

Nature of the Proceedings

[1] Richard Vanderwal seeks a review under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46 of the Decision of Justice of the Peace Doran, dated December 17, 2015, in which he detained Richard Vanderwal in custody pending trial under the primary, secondary and tertiary grounds set out in s. 515(10)(a), (b) and (c) of the Code.

[2] Richard Vanderwal takes the position that: (1) the Justice of the Peace erred in law in several respects; and (2) there has been a material change in circumstances since December 17, 2015 through the inclusion of electronic monitoring as an additional component of his release plan.

[3] Due to s. 515(6)(d) of the Code, and the fact that Mr. Vanderwal was charged with offences under the Controlled Drugs and Substances Act punishable by imprisonment for life, the onus is on Mr. Vanderwal to show cause why his detention in custody is not justified. The reasons for this reverse onus were explained by Lamer C.J. in R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at paras. 61-62:

The unique characteristics of the offences subject to s. 515(6)(d) suggest that those offences are committed in a very different context than most other crimes. Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. In these circumstances, the normal process of arrest and bail will normally not be effective in bringing an end to criminal behaviour. Special bail rules are required in order to establish a bail system which maintains the accused’s right to pre-trial release while discouraging continuing criminal activity.

Another specific feature of the offences subject to s. 515(6)(d) is that there is a marked danger that an accused charged with these offences will abscond rather than appear for trial … Drug importers and traffickers … have access both to a large amount of funds and to sophisticated organizations which can assist in a flight from justice. These offenders accordingly pose a significant risk that they will abscond rather than face trial.

Background Facts re Richard Vanderwal

[4] Richard Vanderwal is 55 years old. Prior to his arrest, he resided with his spouse, Samantha Bohan, at 151 County Road #5, Mallorytown, a property registered in his name. Prior to that, he resided for a number of years at 66 Kerry Point Road, Front of Yonge Township, a property right on the St. Lawrence River registered in the name of his sister, an Alberta resident. Prior to his arrest, Richard Vanderwal worked at and managed a garage at 94 County Road #5, Mallorytown. The property is registered in the name of Mr. Vanderwal’s sister, and the business is registered in the name of his son, Mitchell Vanderwal, who resides above the garage. Mr. Vanderwal has the use of a large boat, though the boat is registered in his son’s name.

[5] Richard Vanderwal’s father, John Vanderwal, lives in a home on the original family farm at 149 County Road #5, Mallorytown. He is 86 years old. Richard Vanderwal takes care of the farm property as well as his own property next door. The outbuildings of the farm, including a barn and garage, stand between the residences at 149-151 County Road #5. Richard Vanderwal keeps his horses in these buildings or has them grazing on the farm land.

[6] Richard Vanderwal conducts all of his financial affairs in cash. He has organized his affairs so that neither Revenue Canada, nor any other creditors, can touch him. He does not maintain a bank account. He has not filed income tax returns in years. He does not receive an official salary from the Mallorytown garage; he just takes cash out of the business on an as-needed basis. He was vague as to the amount he received from the business, saying it was at least $2,000 monthly. However, considering his lifestyle, including two trips to the Dominican Republic in the last two years, and considering the cash located at his residence and in the horse trailer at the time of his arrest, it is reasonable to assume that he has access to significantly more cash than $2,000 monthly. During the winter of 2014-2015, Mr. Vanderwal received $10,000 monthly by subletting 66 Kerry Point Road to an undercover police officer. For two subsequent months, he received $2,500 monthly as rent on that property. All of the bills given to Mr. Vanderwal by the undercover officer were marked. They have not been recovered. Mr. Vanderwal paid his sister rent of $1,000 monthly for 66 Kerry Point Road and paid the municipal taxes on that property. Mr. Vanderwal also received $500 monthly from each of Danny Ryan and Albert White for the apartments they rented at 149-151 County Road #5.

[7] Richard Vanderwal has been in custody at the Brockville Jail since November 12, 2015. He is under order not to communicate with Albert White, Danny Ryan, Derek Sytsma, James Micklewright, Dustin Jenkins, David Vogelzang, Jason Redmond, George Duke, and Donald Kastner. Many of these individuals are his co-accused. While at the Brockville jail, Mr. Vanderwal was heard to say that, if he is released on bail, he will flee to the State of Florida, as he does not want to go back to prison. Mr. Vanderwal denied having made that statement.

[8] Richard Vanderwal’s criminal record is the following:

• June 12, 1978 – attempt theft under $200 – suspended sentence and probation for 3 years.

• March 30, 1979 – forgery and failure to comply with an undertaking – 14 days on each charge, consecutive.

• June 13, 1979 – drive while licence suspended – 15 days.

• March 3, 1980 – drive while licence suspended – $100 and 10 days.

• January 9, 1981 – false pretences – suspended sentence and probation for 6 months.

• January 8, 1982 – possession of stolen property – $250 and 14 days.

• April 15, 1994 – driving with more than 80 mgs of alcohol in the blood – $500 and 21 days.

• March 10, 2000 – (1) laundering proceeds of crime – 2 months, time served; (2) possession of a schedule II substance for the purpose of trafficking and (3) producing a schedule II substance – 1 year on each of charge (2) and (3) consecutive

[9] In addition, in February 2013, Richard Vanderwal was convicted in the United States of having illegally entered the country after he snowmobiled across the frozen St. Lawrence River from Ontario to New York State. He served 90 days in jail.

[10] Richard Vanderwal currently stands charged with the following offences:

• Possession of cocaine for the purpose of trafficking (1 count)

• Trafficking in cocaine (3 counts)

• Possession of marijuana for the purpose of trafficking (4 counts)

• Trafficking in marijuana (1 count)

• Production of marijuana (1 count)

• Possession of resin

• Proceeds of crime (2 counts)

The Crown’s Case

[11] The police synopsis presented at the original bail hearing was as follows.

[12] Over the years, Richard Vanderwal was a person of interest in numerous large scale drug investigations. For example, in Project Windmill (1997), Richard Vanderwal was linked to more than 4000 pounds of cannabis marijuana. Richard Vanderwal was convicted of money laundering, possession for the purpose of trafficking, and production of an illicit drug. He served 18 months.

[13] In January 2014, the police were advised by a confidential informant that Richard Vanderwal and others were involved in the production and distribution of cannabis marijuana and the distribution of cocaine throughout Eastern Ontario. Richard Vanderwal’s associates in this endeavour were identified as being Mitchell Vanderwal (Richard Vanderwal’s son), Albert White (Richard Vanderwal’s employee and a tenant on the Vanderwal farm), Danny Ryan (another employee and tenant on the Vanderwal farm), James Micklewright, Derek Sytsma (a part-time employee at the Vanderwal garage and neighbour of Richard Vanderwal), and Dustin Jenkins. Some of these individuals have previous convictions for possession of marijuana and, in some cases, cocaine, for the purpose of trafficking, and production of marijuana. All but Mitchell Vanderwal and Dustin Jenkins have been implicated in earlier drug-related investigations and drug seizures.

[14] As a result of this information, the RCMP and OPP launched Project O’Derby. During the course of that project, which had to be suspended in the fall of 2014 due to competing demands on the RCMP, searches conducted under warrant on Mr. Vanderwal’s property located two multi-kilogram stashes of what was believed to be marijuana, a shed obviously used for the production of marijuana, and other empty containers buried in the ground at various locations. Surveillance showed Albert White regularly accessing the multiple stash locations using an ATV and being in possession of bags of what was believed to be marijuana.

[15] In September 2015, the OPP and RCMP initiated the second phase of Project O’Derby, called Project Emerson. During the course of this investigation, OPP emergency response team (“ERT”) officers were covertly inserted onto Richard Vanderwal’s property and adjacent properties under the authority of judicial authorizations. Other surveillance activities also occurred. The following was observed:

• October 8, 2015: ERT officers observed Richard Vanderwal, Mitchell Vanderwal, Albert White, Danny Ryan, Derek Sytsma, and Donald Kastner going out to a marijuana processing shed. A helicopter flew overhead and the men scattered and left the area. Later Donald Kastner drove a Kubota UTV with black hockey bags back towards the shed. After the men left the processing shed, ERT officers went into the shed and saw trimming stations, marijuana on drying racks, trimming pails, hockey bags, and clipping and trimming tools. A marijuana control sample was taken. Later in the day, Richard Vanderwal was observed leading a discussion with the other males present, saying that they had been “there” all day and the night before, and that they better get “them” all out, before “they” come.

• October 14, 2015: Police officers located a stash of dried marijuana in a rock crevice on or near Richard Vanderwal’s property. The marijuana was dry, in 14 large freezer bags contained in a clear plastic bag. The plastic bag was in a large black garbage bag which was, in turn, in a large black hockey bag. Police officers observed Richard Vanderwal driving the Kubota UTV up to the barn and placing a large garbage bag and a small grocery bag in the rear of Mitchell Vanderwal’s pick-up truck. Derek Sytsma arrived on scene in a black Chevrolet pick-up. Mitchell Vanderwal removed a large, full, and heavy black hockey bag from the rear of this pick-up and carried it up to the apartment above the barn on the Vanderwal farm. Derek Sytsma carried two large drying racks up to the same apartment. Richard Vanderwal and Mitchell Vanderwal went into the woods on the Kubota UTV and returned with a second large, full, and heavy hockey bag. Mitchell Vanderwal carried this up to the apartment above the barn, and Richard Vanderwal followed with a black pail.

• October 27, 2015: ERT officers observed Richard Vanderwal travel behind the Vanderwal farm in an ATV on a trail that goes well past the processing shed. He returned to the farm and met Danny Ryan inside the barn. Danny Ryan then left the farm. ERT officers followed the wheel marks from the ATV and found a green metal ammunition container under some dead scrub and leaves. The container was closed and latched. Inside was a quantity of Canadian currency in 100, 50, 20 and 5 dollar increments. As well, there was a zip lock bag containing a substance believed to be cocaine.

• October 28, 2015: ERT officers observed Richard Vanderwal attend the stash location identified on October 27. He then drove the ATV to another location, left it, and walked to a second stash located in another rock face crevice. The ERT officers heard a thud sounding like metal and observed Richard Vanderwal putting what appeared to be a rolled up green/blue grocery bag into his jacket pocket. Richard Vanderwal walked back to his ATV and drove back to his residence. The ERT officers located a second green ammunition container in which they found several bags containing cocaine. Officers seized a sample from one of the bags. When Richard Vanderwal returned to the barn, he met Danny Ryan and Albert White. Subsequently Richard Vanderwal and Albert White left the farm in one vehicle and Danny Ryan followed in a second vehicle.

• October 30, 2015: ERT officers reattended both stash locations and did inventories. The second container had 233 grams of cocaine.

• November 2, 2015: ERT officers attended the second stash location. The container was in a different position than the previous time and now contained approximately 36 oz. (one kilogram) of cocaine in plastic bags of different increments. Later, Albert White went to the second stash location on an ATV and removed approximately 3 ounces of cocaine in two clear plastic bags. He returned to the barn.

• November 3, 2015: Richard Vanderwal left the barn and drove the Kubota UTV up the trail, returning to the barn about 10 minutes later. He removed 3 large black full duffle bags from the back and took them up to the apartment. Richard Vanderwal stayed at the apartment and was seen holding a clear large ziplock bag full of what was believed to be marijuana. Later, Richard Vanderwal and Donald Kastner were observed entering the apartment. Later, they were observed using the Kubota UTV to move black barrels similar to the barrels that were buried along the trial and discovered during Project O’Derby.

• November 4, 2015: Richard Vanderwal was observed walking on the driveway of the farm with a large, full, hockey bag and appeared to be coming from Donald Kastner’s residence, across the road. He entered the boat garage with the bag. Albert White drove his van into the boat garage. ERT officers heard the van door opening and closing. Albert White left the farm and headed towards Toronto.

• November 9, 2015: ERT officers revisited the two stash locations. The first stash container continued to have 6 bundles of Canadian currency and one bag of cocaine labeled 1. The second stash’s container had changed, down to one bag labeled 5, 6 bags labeled 2, and one bag labeled 9. One of the bags labeled 5 was scratched out to a 2 and then to a 1. Later, Albert White was observed on an ATV attending at the second stash. After he left, the ERT officers noted that he had taken a bag labeled 5.

• November 10, 2015: ERT officers revisited the two stash locations and weighed the contents of both containers. There was approximately 30 oz. of cocaine in the second container. Danny Ryan attended at the Vanderwal farm and met with Albert White. Albert White then went on the ATV to the second stash location. He returned to the barn. Danny Ryan left a short while later and had a bulge in his front hoodie pocket or pouch. ERT officers checked the contents of the second stash container and noted that 3 oz. of cocaine was missing. Albert White returned to the second stash location later in the day. ERT officers again checked the contents of that container and noted that 1 oz. of cocaine was missing.

• November 12, 2015: ERT officers checked the contents of the containers at both stash locations. There were no changes in the contents. Danny Ryan arrived at the Vanderwal farm. Richard Vanderwal drove up the trail on his ATV to the second stash location and removed a quantity of cocaine from the container. Once he left the area, ERT officers checked on the contents of the container and noted 5 oz. of cocaine had been taken.

[16] On November 12, 2015, Richard Vanderwal was arrested by OPP officers as he was in his pickup truck pulling a horse trailer at an Enroute station on route 401 near Quinte, Ontario. While in custody, Richard Vanderwal advised the officers that there was $10,000 in his horse trailer and $2,500 at his residence. The money in the horse trailer was found under pills of hay.

[17] On November 12-13, 2015, OPP and RCMP officers executed a search warrant at Richard Vanderwal’s residence and surrounding property at 151 County Road #5, Mallorytown. The seizures at the scene included 1953.9 grams of cocaine, 3680 grams of cannabis marijuana, 50 milliliters of hash oil, and $14,000 in Canadian currency. On the same days, officers executed a search warrant at 149 Country Road #5, Mallorytown, where the barn and outbuildings attached to the Vanderwal farm are located. They seized computers, cell phones, Kubota UTVs, a digital scale, 130 grams of marijuana, 3 bags of what was thought to be cocaine, and a cocaine press. The residence of Danny Ryan was also searched and from it were seized 200 grams of marijuana, 150 grams of cannabis resin, 1 gram of cocaine, and $900 in cash. The residence of Derek Sytsma at 153 County Road #5, Mallorytown, was searched and from it were seized: two computers, cell phones, 7931.6 grams of cannabis marijuana bud, 560 grams of cannabis marijuana clippings, 50 grams of Psilocybin, a set of digital scales, two air rifles, clipping tools, and packaging.

Release Plan

[18] If released, Mr. Vanderwal plans to reside with Samantha Bohan at 66 Kerry Point Road. Mr. Vanderwal plans to continue working at the garage in Mallorytown. Although this was not an aspect of the release plan presented to the Justice of the Peace, Mr. Vanderwal is now prepared to be subjected to electronic monitoring. He will also post his own bond or provide cash security. At the first bail hearing, Mr. Vanderwal proposed two sureties: Brady McNabb and Michaele Dunn, both of whom were prepared to post bonds in the amount of $25,000. At the bail review hearing, Mr. Vanderwal proposed two sureties: Michaele Dunn and Joline Saunders.

[19] Michaele Dunn is the former mother-in-law of Richard Vanderwal. She is 72 years old and resides with her husband in Brockville. She is retired from her job as a cashier. At the first bail hearing, she offered to have Richard Vanderwal live with her and to supervise him. At the bail review hearing, it was proposed that Ms. Dunn act as surety for Mr. Vanderwal in a financial sense only, through the posting of a bond for $25,000 without deposit. She would not play any monitoring or supervisory role.

[20] Joline Saunders is a 59 year old friend of Mr. Vanderwal. She resides with her husband in Mallorytown, about 15 minutes away from the Vanderwal residence on Kerry Point Road. Ms. Saunders and her husband met Mr. Vanderwal through other friends. They are all in a group that enjoy boating on the St. Lawrence River. She has been to his home a few times and Mr. Vanderwal has been to her home a handful of times. Ms. Saunders does not propose to monitor or supervise Mr. Vanderwal. All she would do is post a $20,000 bond, without deposit. Ms. Saunders works part-time from her home for the Riverside South Medical Centre. Her husband works for Imperial Electric in Ottawa. They own their home. It does not have a mortgage.

Legal Principles

[21] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code, the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) “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”; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case. Richard Vanderwal relies on all three reasons in seeking this court’s intervention.

[22] In para. 128 of St. Cloud, the Supreme Court, adopting but modifying its earlier statements in Palmer v. the Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, outlined the following criteria that must be met for evidence to be considered “new evidence” admissible on appeal:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. In the context of a bail hearing, evidence that existed but was not tendered at the time of the initial release hearing may still be considered new, admissible, evidence at the time of the review if it was not tendered originally for some reason that was legitimate and reasonable (St. Cloud, at paras. 130-134);

2. The evidence must be relevant for the purposes of s. 515(10) of the Code;

3. The evidence must be credible in the sense that it is reasonably capable of belief, keeping in mind the relaxation of the rules of evidence at the bail stage (St. Cloud, at para. 136); and

4. The evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice of the peace under s. 515(10)(c) of the Code. In other words, it must be significant.

[23] The interests of justice require that “new evidence” not be given too narrow a meaning for the purpose of ss. 520 and 521 of the Code (St. Cloud, at para. 127).

Alleged New Evidence: Electronic Monitoring

[24] Mr. Vanderwal asks this court to intervene and reassess his bail application based in part on the availability of electronic monitoring – something not advanced at the original bail hearing. He argues that this is new evidence amounting to a material change in circumstances.

[25] Recovery Science Corporation (“RSC”) has been offering radio-frequency monitoring services for those on judicial interim release since 2010 and GPS monitoring services since 2012. These services have been used in other cases in Ontario. In addition to violation reports, RSC can provide to the police regular compliance reports, proactive reporting of irregular activity, surveillance assistance, crime scene correlation, on demand current or historical location information, and direct access to its GPS monitoring software. The accused is responsible for all costs associated with these services.

[26] RSC believes that the key value achieved through monitoring is a deterrent effect due to the accused’s realization that breaches of monitored conditions will be detected and reported. What electronic monitoring really provides is proof of non-compliance with conditions rather than a method of enforcing conditions or preventing breaches of conditions (see R. v. Palijan, [2012] O.J. No. 6549 (S.C.), at para. 25).

[27] Using the radio-frequency monitoring system, RSC can keep track of when an accused person is in his or her home or other designated place. Using the GSP monitoring system, RSC is able to establish geographic zones within which the accused is required to remain (inclusion zones) or in which the accused is prohibited from entering (exclusion zones). GPS ankle bracelets record the accused’s location every one to three minutes, and the information is uploaded to the monitoring services every 10 to 30 minutes. The monitoring services (located in Houston, Texas, or the UK) work on a 24/7 basis. RSC does not have staff who work the overnight shift, but do have staff on call 24/7.

[28] In their written materials explaining their services, RSC states:

While the system can and does deliver violation alerts very quickly, typically in 1-10 minutes, we do not encourage reliance on rapid police response time as a factor in making a decision to release rather than detain an accused. This is for two reasons: first, because there are many factors that create the potential for delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that may still not be sufficient to prevent an accused from fleeing or committing an offence.

[29] As has been demonstrated in other cases, the system does not provide constant monitoring. There can be gaps in GPS accessibility and cellular coverage which means that, on a real time basis, those monitoring an accused may not know where the accused is for a period of time. As well, this service can only provide information on the location of an accused person. It offers no assistance in monitoring with whom an accused is meeting or communicating or what the accused is doing at any point in time.

[30] Mr. Vanderwal has not established that there has been a material change in circumstances since the original bail hearing based on “new evidence”, namely the availability of electronic monitoring. In coming to this conclusion, I have considered the four requirements going into the definition of “new evidence” as set out in St. Cloud. Although the first three requirements can be met, the fourth cannot.

[31] Although electronic monitoring was an option that theoretically could have been raised at the hearing before the Justice of the Peace, I am not prepared to find that the fact that it was not raised at that time represents a lack of due diligence on the part of Mr. Vanderwal. Mr. Vanderwal was arrested on November 13, 2015. His bail hearing started on December 7, 2015. This provided very little time to garner the necessary evidence to place before the court regarding electronic monitoring options.

[32] The evidence regarding electronic monitoring is of some relevance to the first and second grounds, though is of marginal, if any, relevance to the third ground.

[33] The evidence regarding electronic monitoring provided by Peter Marshall, the President of RSC, was clear, balanced and credible.

[34] The problem with the argument that the availability of electronic monitoring amounts to “new evidence” is that it is not reasonable to think, having regard to all of the circumstances, that it could have affected the balancing exercise engaged in by the Justice of the Peace under s. 515(10)(c) of the Code. This will be explained in greater detail below.

Alleged Errors in Law

[35] Richard Vanderwal asserts that the Justice of Peace made the following errors in law in rendering his decision at the bail hearing:

• The Justice of the Peace speculated that Mr. Vanderwal had a shortfall in his income of $45,000-$50,000 annually, ignoring the evidence as to the rental payments he had received from the undercover police officer. In addition, he failed to relate this factor to one of the grounds justifying detention.

• The Justice of the Peace misstated the test for the secondary ground as being that there was a substantial likelihood that Mr. Vanderwal might commit further criminal activities or might interfere with the administration of justice or with a witness or victim.

• The Justice of the Peace treated a requirement to ensure that Mr. Vanderwal not communicate with any of the other individuals allegedly involved in drug trafficking as an independent basis for detention on the secondary ground.

• The Justice of the Peace treated the need to maintain a distance from County Road #5 as a relevant factor justifying detention under the secondary grounds.

• The Justice of the Peace considered as a relevant factor the proximity of the American border to Mr. Vanderwal’s house while at the same time not detaining him on the primary grounds.

• The Justice of the Peace took judicial notice that Mr. Vanderwal was somewhat of a legend in Mallorytown in regard to criminal activities.

• The Justice of the Peace considered the three grounds for detention as a single ground and did not decide whether any one of those grounds, considered on its own, justified Mr. Vanderwal’s detention.

• The Justice of the Peace articulated the four statutory factors to be taken into account in regard to the tertiary grounds but undertook no analysis of any of those factors.

[36] The Justice of the Peace did not clearly articulate the statutory test for detention under the primary and secondary grounds. The test under the primary grounds is not whether “there is a likelihood that [the accused] may not show up for further court appearances or that [he] may leave the country”. It is whether detention is necessary to ensure the accused’s attendance in court. The test under the secondary ground is not whether “there is a substantial likelihood that if [the accused is] released…, [he] might commit further criminal activities or … might interfere with the administration of justice or interfere with any of the victims or witnesses to the allegations that bring [him] before the Court”. The test is whether detention is necessary for the protection or safety of the public, 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.

[37] The Justice of the Peace may also have erred in law in relying on a statement made by a witness to the effect that Mr. Vanderwal was a legend in the Mallorytown area, when the Justice of the Peace was considering the tertiary grounds, in that this evidence may have been tendered in another proceeding and not admitted in regard to Mr. Vanderwal’s bail hearing. This is unclear on the record, as I was advised that there was a joint hearing regarding bail for a number of the accused from Project Emerson.

[38] The Justice of the Peace erred in law in not providing an analysis of the factors he considered in regard to the tertiary grounds. Instead, he simply reiterated the provisions in s. 515(10)(c) of the Code and said that he had some concerns about them (see R. v. Wong, 2008 CanLII 67420 (Ont. S.C.), at para. 7).

[39] The Justice of the Peace made no error in considering evidence regarding Mr. Vanderwal’s finances as relevant to his overall credibility and to the primary grounds. The likelihood that Mr. Vanderwal has hidden funds available to him increases the ability of Mr. Vanderwal to flee the jurisdiction.

[40] The Justice of the Peace made no error in taking into account the ease with which Mr. Vanderwal could communicate with his co-accused and the ease with which he could go to 149-151 County Road #5 when considering the secondary grounds for detention. In fact, both were important and relevant factors to the analysis on the secondary grounds.

[41] The Justice of the Peace made no error in taking into account the proximity of the American border in considering both the primary and the tertiary grounds. The Justice of the Peace decided that any plan that had Mr. Vanderwal residing at 66 Kerry Point Road was doomed to failure under the primary grounds. As well, the Justice of the Peace took the proximity of New York State to 66 Kerry Point Road into account when considering the tertiary grounds. He was entitled to do so. All circumstances of the case are to be considered under s. 515(10)(c) of the Code (St. Cloud, at para. 87).

[42] Since I have identified some errors of law made by the Justice of the Peace, it is appropriate for me to intervene and reconsider Mr. Vanderwal’s bail application.

Sureties

[43] The original sureties did not offer much comfort to the Justice of the Peace in regard to either the primary or secondary grounds, and the same can be said of the current sureties proposed by Mr. Vanderwal. Quite understandably, Defence counsel did not argue that the replacement of Brady McNabb with Joline Saunders amounted to a material change in circumstances (see R. v. Ferguson, [2002] O.T.C. 348 (S.C.)).

[44] The critical factor is that neither surety would be doing any form of monitoring or supervision of Mr. Vanderwal and, in reality, would not be in a position to do so. Mr. Vanderwal would not be residing with either surety. Both sureties live at a distance from Mr. Vanderwal’s proposed residence. As well, their relationships with Mr. Vanderwal are such that supervision of his activities is unlikely to occur. Ms. Dunn is Mr. Vanderwal’s former mother-in-law. Since Mr. Vanderwal and his former wife separated, Ms. Dunn has seen Mr. Vanderwal infrequently. She does not know much about his current life and lifestyle. Ms. Saunders is a relatively new friend of Mr. Vanderwal. She sees him socially on a casual basis along with other friends. Both sureties are willing to post bonds in significant amounts; however, the critical reassurance offered by sureties is their ability to supervise and control the accused’s behaviour. Neither surety in this case can offer anything in this regard.

[45] As well, both sureties appeared to be inordinately blasé about the risk they were assuming as Mr. Vanderwal’s sureties. The way each surety described her financial position suggested that neither could easily spare $20,000 or $25,000 if called upon to do so, which raises the question as to where this money would come from if Mr. Vanderwal breached his conditions of release. Subject to what I will say shortly in regard to Ms. Saunders’ position, both sureties showed remarkably little interest in Mr. Vanderwal’s criminal record, the current charges against him, and the strength of the evidence linking Mr. Vanderwal to the trafficking of cocaine, as well as marijuana. Both only learned of that evidence while sitting in court during either the original bail hearing or the bail review hearing. One would have thought that, before committing to be a surety for someone with whom the surety did not have a particularly close relationship, that surety would want to know as much as possible about the alleged offences, the jeopardy being faced by the accused, and the risk of breach of condition being posed by the accused. The only thing that can be said about Ms. Saunders is that, after she realized that Mr. Vanderwal had already been denied bail on one occasion, and after she learned more about the evidence against Mr. Vanderwal, she stated that if Mr. Vanderwal was not going to be subject to electronic monitoring, then she would have to have more information as to what would be required of her, and she would have to have more contact with Mr. Vanderwal than originally anticipated, before she would post a $20,000 bond. That being said, she would not commit to visiting Mr. Vanderwal nightly if he were released on bail.

[46] There is a disconnect between the significant amount of money that both sureties are willing to pledge and their lack of interest in Mr. Vanderwal’s criminal antecedents and current charges. This raises questions on many levels, including whether they are the actual source of the funds that they are willing to pledge, whether any pressure has been applied to either of them to act as sureties, and whether they would be entering into this responsibility with their eyes open. It may simply be that they are naïve in regard to the jeopardy in which they are placing themselves. Whatever the reason for their lack of interest, it brings into question the extent to which their pledge of financial resources is meaningful.

[47] For these reasons, I discount the weight to be assigned to the presence of sureties in this case.

Analysis

[48] The onus is on Mr. Vanderwal to show cause why his continued detention is not required under s. 515(10) of the Criminal Code.

Primary Grounds

[49] Has Mr. Vanderwal satisfied me that his detention is not necessary to ensure his attendance in court in order to be dealt with according to law? The answer is no.

[50] There is no question that Mr. Vanderwal has roots and connections in the Mallorytown area. He was born there. He owns the property at 151 County Road #5. His father lives next door. He uses his father’s property as if it were his own. He is the operating mind of the garage in Mallorytown registered in his son’s name. He and his spouse have lived at 66 Kerry Point, which he rents from his sister. Mr. Vanderwal has many friends and associates in the Mallorytown area.

[51] It is also to be noted that Mr. Vanderwal has not breached an undertaking to the court since 1979.

[52] Despite these facts, for the following reasons, I am not convinced that Mr. Vanderwal’s detention is unnecessary to ensure his attendance in court in order that the charges against him be dealt with according to the law:

• Mr. Vanderwal would be living on the St. Lawrence River, and New York State is just a few kilometers away across the water. As a boat owner, and as a friend of many other boat owners, Mr. Vanderwal could easily gain access to a boat. In addition, the bridge to the United States is just down the road from 66 Kerry Point Road. Mr. Vanderwal entered the United States illegally in 2013 at a time when he knew that he was not allowed into the United States because of his criminal record. The fact that Mr. Vanderwal’s passports have been seized may not be a deterrent to his trying to enter the United States once again.

• Mr. Vanderwal, historically, has had sufficient cash to live a comfortable lifestyle. A significant amount of cash was seized following his arrest and the execution of search warrants on his property and on his truck and horse trailer. Mr. Vanderwal had hidden some of this cash in unusual places. It is possible that there is other cash hidden away and available to Mr. Vanderwal if he decided to flee the jurisdiction.

• Mr. Vanderwal, and many of his friends, are facing serious charges. If convicted, he is facing a lengthy sentence. His father is elderly and is apparently not that well. His son is implicated in Project Emerson, as are many of his friends and associates. Mr. Vanderwal’s roots in Mallorytown may be shriveling and of lesser importance to him now than possibly in the past.

• Since his divorce, Mr. Vanderwal has not done regular maintenance on his residence at 151 County Road #5. His evidence was that, as a result, the residence has significantly reduced in value over the last six or seven years. Considering the house is the only asset in Mr. Vanderwal’s name and, according to Mr. Vanderwal’s evidence, he may owe Revenue Canada considerable income taxes, it is likely that Mr. Vanderwal would not receive significant funds were the house to be sold. In that Mr. Vanderwal may never benefit from the equity in that property, his home may be an asset that he could easily walk away from.

• Finally, Mr. Vanderwal was heard to say that, if given the chance, he would flee the jurisdiction rather than return to prison.

Secondary Grounds

[53] Has Mr. Vanderwal satisfied me that his detention is not necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that he will, if released from custody, commit a criminal offence or interfere with the administration of justice? Again, the answer is no.

[54] My concern here is that, if released, Mr. Vanderwal will engage in drug trafficking and, more particularly, in trafficking in cocaine. I note that Mr. Vanderwal has not been convicted of any crimes involving weapons or violence. However, drug trafficking – especially in drugs like cocaine – is well known to be associated with weapons and violence. Furthermore, cocaine usage in our society puts both individuals and families at risk. This has been commented on repeatedly in our criminal jurisprudence.

[55] Mr. Vanderwal’s criminal record dates back to 1978 and, although since 1982, his convictions have been sporadic, those convictions still continue – the most recent being in the United States in 2013. As well, from 1997 to date, Mr. Vanderwal, although not charged, has been a person of interest in several large investigative projects of the RCMP and OPP targeting major drug trafficking activities in Eastern Ontario. Several of his friends and associates have been implicated in those projects. Mr. Vanderwal’s convictions in 2000 relate to the same type of activity that is alleged with the current charges. The drugs uncovered in Project Emerson were found in a rural area to which Mr. Vanderwal, and his associates, have had access for decades. The police can have no confidence that all drugs stashed on that property have been located. As well, with the availability of disposable cell phones, there can be no assurance that contacts are not being made to facilitate drug trafficking.

[56] Although electronic monitoring could result in any visit by Mr. Vanderwal to the properties on County Road #5 being detected, it does not mean that other associates of Mr. Vanderwal could not act as his proxy. Also, electronic monitoring would be of no assistance in monitoring Mr. Vanderwal’s communications with others.

[57] In regard to the influence the sureties may have over Mr. Vanderwal, I conclude that any such influence is minimal. Despite each of the sureties testifying that the money they are pledging is their own, I am not convinced that that is the case. Neither is closely enough connected with Mr. Vanderwal for it to make rational sense for them to be pledging that kind of money on his behalf when they have no way of supervising, monitoring, or controlling his behavior, and when their own personal circumstances suggest that the loss of $20,000 or $25,000 would have some impact on their own financial security. That leads me to question who really would be paying if Mr. Vanderwal were to renege on his bail conditions.

[58] The evidence before me suggests that Mr. Vanderwal has been the person in a control or leadership position when dealing with others in his life – he is not a person over whom others exert control. There is no evidence that Mr. Vanderwal would follow any direction from either surety or that he would care much what would happen to either surety were he to breach a condition of his release. In any event, neither surety is in a position to offer any direction or supervision to Mr. Vanderwal.

[59] In my view, there is a substantial likelihood that, if he is released pending trial, Mr. Vanderwal will commit a criminal offence and, more specifically, the offence of drug trafficking which will, in turn, put the welfare and safety of the public at risk.

Tertiary Grounds

[60] Has Mr. Vanderwal satisfied me that his detention is not necessary to maintain confidence in the administration of justice?

[61] Before answering this question, I must consider all of the circumstances, but particularly those relating to:

• The apparent strength of the prosecution’s case,

• The gravity of the offence,

• The circumstances surrounding the commission of the offence, including whether a firearm was used, and

• 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.

[62] I must also be governed by the explanation of s. 515(10)(c) provided by Wagner J. in St. Cloud. This ground for detention is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused (at paras. 34, 87). This ground is not to be interpreted narrowly. It is not limited to exceptional cases or to certain classes of crimes (at paras. 5, 54, 87). This ground requires the court to strike a balance between the rights of the accused, and particularly the right to be presumed innocent until guilt is proven beyond a reasonable doubt, and the need to maintain public confidence in the justice system (at para. 4). The “public” are reasonable members of the community, well-informed about the philosophy of the legislative provisions in the Criminal Code, the values in the Charter of Rights and Freedoms, and the actual circumstances of the case (at paras. 5, 74, 79-80, 87). A member of the “public” is not a legal expert and is not necessarily able to appreciate the subtleties of criminal law (at paras. 80, 87).

[63] All circumstances of the case must be considered, but I will start with the most important – those listed in s. 515(10)(c) of the Code.

[64] In my view, the Crown has a strong case against Mr. Vanderwal, based on the observations of numerous police officers, surveillance videos, surveillance photographs, and the seizure of drugs, drug paraphernalia, and cash. Although some of the evidence is circumstantial, when considered in its entirety and together with the direct evidence and seized items, it is powerful. At first blush, the evidence strongly suggests that, not only was Mr. Vanderwal involved in the production of marijuana and the possession of both marijuana and cocaine for the purpose of trafficking, but also Mr. Vanderwal was the central figure in this enterprise.

[65] As I have already indicated, trafficking in cocaine is a serious offence. Cocaine, and its by-products, wreaks untold havoc on the lives of individuals, families, and communities.

[66] No firearm was used in the commission of the alleged offences, and I have not been made aware of any evidence to the effect that any of the other co-accused was in possession of a firearm.

[67] Mr. Vanderwal is in jeopardy of receiving a lengthy penitentiary sentence if convicted of trafficking in cocaine. The maximum term of imprisonment is life and, although I am not suggesting that he would be liable for anything near such a lengthy sentence, still, the length of sentence would be significant. In R. v. Bajada (2003), 2003 CanLII 15687 (ON CA), 169 O.A.C. 226 (C.A.), a 51 year-old man convicted of possession of over half a kilogram of cocaine for the purpose of trafficking, with some previous narcotics convictions, was sentenced to six years imprisonment.

[68] In considering the tertiary grounds, one is not limited to considering only these four factors. All of the circumstances of the case come into play. I consider relevant the fact that many of Mr. Vanderwal’s friends and family members are implicated in some fashion in this case. His father owns some of the property and the vehicles allegedly used by Mr. Vanderwal in the commission of the alleged offences. His son was seen participating in some of the activities that resulted in the charges against Mr. Vanderwal. Many of Mr. Vanderwal’s employees, friends, and tenants were seen participating in the alleged offences and were charged along with Mr. Vanderwal. Mr. Vanderwal has been a person of interest in several major drug projects and was convicted of drug-related offences in 2000 involving some of the same players implicated in the charges in this case. This is not the type of case where a person released on bail will be surrounded by people whom the Court can rely upon as being law-abiding and supportive of any conditions imposed on Mr. Vanderwal.

[69] The volume of drugs seized in this case is significant. Mr. Vanderwal already has 11 criminal convictions in Canada and one conviction in the United States, and three of the previous Canadian convictions relate to narcotics. The location of activities observed by the OPP ERT officers, the members of the group implicated, the interactions between the players observed by the officers, and the buildings and vehicles used in those activities, all suggest that Mr. Vanderwal was managing the operations that were occurring – whatever their nature was. He was a leader, not a follower.

[70] If released, Mr. Vanderwal would be living in a home on the St. Lawrence River, a short distance away by water from New York State. Although he would be subjected to electronic monitoring, this device is useful more as a deterrent and for subsequent evidence if things go wrong – it cannot be relied on as constantly pinpointing in real time, without gaps, the exact location of a person. Mr. Vanderwal has already entered the United States illegally on a previous occasion, knowing full-well he was barred from doing so. He has been heard to say that he would flee to the United States if given the opportunity to do so. He has access to watercraft to assist in this regard. I have already described factors which suggest that Mr. Vanderwal’s ties to Eastern Ontario, and Canada, may not be as strong as they may appear at first blush.

[71] In my opinion, members of the public, cognizant of all of the circumstances of the case and of Mr. Vanderwal, acting reasonably and taking into account the presumption of innocence and other Charter values, would lose some confidence in the bail system in this country, and more generally, in the administration of criminal justice in the country, if Mr. Vanderwal were released on bail. They would question how committed the criminal justice system is to dealing with the illicit drug trade in our communities.

[72] I note that in R. v. Fleming, [2015] O.J. No. 4380 (S.C.), Trotter J., in a case which he considered a very close call, upheld the decision of the Justice of the Peace to the effect that the detention of the accused, who was allegedly part of a conspiracy to import large quantities of narcotics to Canada, was not justified on either the secondary or tertiary grounds. Trotter J. did so in great measure due to his assessment that the release plan was a very strong one with 24/7 monitoring of the accused and a financial recognizance of $425,000. Electronic monitoring was part of the plan and Trotter J. thought that it might have some, if limited, utility in preventing in-person meetings and associations with others. In this case, I do not see electronic monitoring playing the same role. Mr. Vanderwal is proposing that he not be under house arrest or be in the continual presence of a surety. He seeks the ability to continuue working at his garage in Mallorytown, where he has many friends and acquaintances. I do not see electronic monitoring realistically playing a role in preventing his meeting with others.

Disposition

[73] For these reasons, Mr. Vanderwal’s application for judicial interim release on conditions is refused.

Aitken J.

Released: March 31, 2016

CITATION: R. v. Vanderwal 2016 ONSC 1889

COURT FILE NO.: 15-1520 Brockville

DATE: 2016/03/31

PUBLICATION BAN UNDER S. 517 OF CRIMINAL CODE

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

RICHARD VANDERWAL

Applicant

REASONS ON BAIL REVIEW

Aitken J.

Released: March 31, 2016