Court File and Parties

CITATION: R v. Blevins, 2016 ONSC 2190

COURT FILE NO.: DR(F) 1336/15

DATE: 2016 03 30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

David Blevins

COUNSEL:

S. Thompson, For the Respondent

E. Willschick, For the Applicant

HEARD: March 18, 2016

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.)

Trimble J.

[1] Mr. Blevins seeks review under s. 520 of the Criminal Code of Canada of Decision of the Honourable Justice of the Peace M. Eustaquio-Syme of December 4, 2015, who decided, after a day of evidence, that Mr. Blevins should remain in custody pending his trial on all three grounds (primary, secondary and tertiary). This hearing was his 90 day review.

The Charges:

[2] Mr. Blevins was the subject of an intense police multi-jurisdictional investigation that involved wire taps on his phone communications. As a result of the investigation, he was charged, along with others, with:

a) Importing 3.9 kilograms of cocaine from St. Lucia on February 26, 2015, employing the use of two couriers;

b) Importing 4,02 kilograms from St. Lucia on March 30, 2015, employing the use of two couriers;

c) Possession for the purpose of trafficking in that on July 13 and 14, 2015 he received a kilogram of cocaine and split it in two halves which he gave to two individuals;

d) Trafficking in oxycodone and morphine between August19 and 21, 2015 in that he provided to another accused 58 oxycodone pills and 80 dilaudid pills;

e) Conspiracy to import firearms in that between July 9 and August 28, 2015, he conspired with others to import thirty semi-automatic firearms from Florida into Canada. He was arrested and charged in Florida for possessing one semi-automatic hand gun and 5 others from a storage locker he controlled. I note that he is recorded on a wiretap transcript to have admitted having had in his possession at arrest 3.5 grams of cocaine and 84 dilaudid pills. No charges were pursued in Florida with respect to the drugs.

The Bail Hearing:

[3] It is agreed that on all charges except the gun charge, Mr. Blevins had the onus of demonstrating that his detention was not justified. The Crown had the onus on the gun charge.

[4] It appears from the record and the submissions that all of the wire-tap evidence was put before the learned Justice of the Peace, in transcript form. Several specific excerpts were played. I had the benefit of the transcripts and CD’s that were before the learned Justice of the Peace. I have reviewed the transcripts.

[5] I pause to note that Jason Gibbons, one of the proposed sureties who, testified before the learned Justice of the Peace, heard the wiretap excerpts played, and recognized Mr. Blevins’ voice as that of one of the participants in all clips played.

[6] The following evidence was elicited at the bail hearing, which is relevant to the bail issues (except where I indicate it was provided at the Bail Review before me):

a) Mr. Blevins lives in Newfoundland.

b) His Affidavit provided at the Bail Review indicated that he has permanent residency in Canada, and therefore not a citizen.

c) He has family in Florida (mother, brother and step father), Tennessee and Maine (father).

d) He owned property in Florida, which had been sold by the time the charges were laid.

e) His daughter is 13 or 14, and lives with Mr. Blevins’ ex-wife in Toronto (but at the review, said to be in Milton), whom he sees frequently.

f) He has no criminal record.

g) Counsel agreed before me that the Florida charges are “sheriff’s charges” which have no equivalent in Canada, but which are more serious than a misdemeanor but less serious than a felony.

h) Sureties testified that Mr. Blevins had a cocaine problem for which he was treated, but for which he might not have had successful rehabilitation.

i) He owns and operates a bar in Newfoundland.

j) His step father in Florida sold some of the guns to him in Florida.

k) The wire taps indicate that a large number of guns (30 to 40) were to be purchased in Florida at a value of $250 to $450, and sold in Canada for $2,500 a piece by Mr. Blevins and the alleged co-conspirator. He admitted on the wire taps that he knew that he was trying to circumvent US law in buying the firearms and that importing them into Canada was illegal.

l) The wire taps indicate that Mr. Blevins arranged for the purchase of the drugs, and the couriers to bring the drugs into Canada. He received the drugs and gave or sold them to others. At least one of his customers took the drugs to Newfoundland. He was able to raise large sums of money ($26,000 and $50,000) to finance his purchases of drugs.

The Plan of Release:

[7] Mr. Blevins proposed three sureties, who would cumulatively deposit $4,000, and be jointly and severally liable for a $100,000 bond. Mr. Blevins was to be under house arrest in the home of Mr. Gibbons, a childhood friend who remained in contact with Mr. Blevins, since Mr. Blevins moved away, and who promised to monitor him constantly. Mr. Gibbons installs fire sprinkler systems. Mr. Blevins was to live with the Gibbons family, and go to work with Mr. Gibbons. If Mr. Gibbons could not supervise Mr. Blevins, that Mrs. Gibbons would. If they could not another childhood friend, Mr. Vermilyea, would. Mr. Vermilyea admitted that while he knew Mr. Blevins when they were teenagers, he had little contact with him in recent years. Mr. Vermilyea is a truck driver. Essentially, under the Plan of Release the only time Mr. Blevins would be unsupervised was when in the bathroom or when the sureties were asleep. He would have no access to vehicles, cell phones or the internet. The sureties live in a rural area 3 hours from Toronto.

[8] At the Bail Review, a fourth surety came forward, Mr. Blevins ex-wife. Her affidavit was proffered for two reasons: a) to show that Mr. Blevins access to his daughter was much more frequent than as stated by Mr. and Mrs. Gibbons before the Justice of the Peace, and b) to improve upon the plan of release.

[9] After a voir dire, I did not accept Ms. Cordeiro`s evidence with respect to the frequency that Mr. Blevins came to Milton or Toronto to see his daughter. That evidence was available to Mr. Blevins at the time of the original hearing, had he or someone on his behalf tried to contact Ms. Cordeiro.

[10] Whether I should accept her Affidavit as part of a revised Release Plan was deferred to my final decision on Bail Review.

The Learned Justice of the Peace`s Reasons:

[11] The learned Justice of the Peace delivered his reasons on bail, orally on December 4, 2015, and ordered Mr. Blevins held on all three grounds. On the primary ground, the learned Justice of the Peace held that Mr. Blevins relatives are in the US, except for his daughter, who is in Toronto (Milton), and he lives in Newfoundland. His contacts with the G.T.A. are minimal. On the secondary and tertiary grounds, the Court considered the seriousness of the charges (drugs and firearms), the amounts of drugs at issue (over 7 kilos of cocaine and many oxycodone and morphine pills), and Mr. Blevins alleged level of involvement. He considered the strength of the Crowns case, that Mr. Blevins alleged crimes all involved deception and subterfuge, and what the public might think if Mr. Blevins was released on bail.

[12] The learned Justice of the Peace also considered the plan of release. While he praised parts of the plan, in light of Mr. Blevins’ alleged offenses, he was not satisfied that Mr. Blevins could be prevented from committing further offences.

Standard of Review:

[13] The Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 at paragraphs 120 and 121 clarified the standard of review at a Bail Review. A bail review is not a hearing de novo. The reviewing judge can only interfere if the justice at the bail hearing a) erred in law, b) there is new evidence, or c) if the decision is “clearly inappropriate”.

[14] Under the third leg, above “clearly inappropriate”, means that the initial justice gave “excessive weight” to a relevant factor or “insufficient weight to another. The reviewing judge cannot interfere merely because s/he would have weighed factors differently. In other words, for Mr. Blevins to succeed on this Bail Review, he must do more than convince me to balance or weigh factors differently than the learned Justice of the Peace. He must satisfy me that the mis-weighing of factors is significantly incorrect. As Trotter, J. put it in R. v. Dang, 2015 ONSC 4254, para. 37, the standard is deferential to the original decision maker in the same way described by appellate courts when they review the suitability of a sentence on sentence appeal.

Mr. Blevins’ Position:

[15] Mr. Blevin concedes that there are no errors of law at issue in this Bail Review. His position is that the learned Justice of the Peace:

a) Gave insufficient weight to the Release Plan (primary and secondary grounds);

b) Gave excessive weight to the Wire-Tap evidence, without evaluating it (secondary and tertiary grounds;

c) Gave excessive weight to Mr. Blevins’ U.S. connection and the risk of flight (primary and secondary grounds;

d) Gave excessive weight to the seriousness of the offences (secondary and tertiary grounds);

e) Gave excessive weight to R. v. Parsons, which is distinguishable;

f) Failed to consider parity in bail results.

[16] In addition, Mr. Blevins attempted to introduce new evidence, and make improvements to the Release Plan.

Decision:

[17] Mr. Blevins is to remain in custody on all three grounds. I cannot find any reason, applying the St. Cloud test, to reverse the learned Justice of the Peace.

[18] The original hearing took a full day to complete. The learned Justice of the Peace’s reasons run into 11 pages. He addressed all of the arguments that counsel put before him. He correctly stated the different onuses with respect to bail on the drug and firearms charges. He explained his conclusions in respect of each of the grounds for considering bail and referred to leading cases. While he did not refer to every piece of evidence put before him, he reviewed significant aspects of the evidence. Judges are often criticized by an aggrieved party for not considering the key piece of evidence in that party’s view, simply because the judge did not mention it in his/her reasons. Judges, however, are neither scribes nor scriveners. Taking the evidence as a whole, the learned Justice of the Peace’s oral reasons deal with the three grounds for appeal in a responsive way.

[19] I turn now to the specific issues Mr. Blevins raises.

New Evidence:

[20] As indicated above, Mr. Blevins wished to introduce an affidavit from his ex-wife, in part, to show that Mr. Blevins’ visits to his daughter in Toronto/Milton were more frequent than submitted before the learned Justice of the Peace. St. Cloud says (para. 126-131) that new evidence on a bail review must still pass the test in R. v. Palmer, although that test is relaxed somewhat given the short time in which an accused has to prepare for a bail hearing. Even applying a relaxed Palmer test, I refused to admit Ms. Cordeiro’s Affidavit. Mr. Blevins led no evidence to explain why Ms. Cordeiro was not contacted before the original bail hearing. In other words, there was no evidence that Mr. Blevins exercised ANY due diligence in locating Ms. Cordeiro, let alone met any relaxed standard of due diligence in looking for evidence.

New and Improved Release Plan:

[21] As indicated above, Mr. Blevins also wished to introduce Ms. Cordeiro’s Affidavit as part of an improved release plan.

[22] For reasons similar to those given orally at the hearing with respect to fresh evidence, I do not accept Ms. Cordeiro’s Affidavit as part of an improved Release Plan. There is nothing to suggest that she was unavailable before the hearing before the learned Justice of the Peace. Her evidence is that she was available, but Mr. Blevins did not try to contact her. In any event, even if I accepted her Affidavit as part of an improved Release Plan, it does not help. It weakens the plan of release. Ms. Cordeiro said that while she would contribute to the cash deposit and bond, her purpose for being a surety was to supervise Mr. Blevins when he was with their daughter in Milton or Toronto, thereby facilitating continued access. Her contribution to the plan of release did not increase the supervision while Mr. Blevins visited their daughter. It weakened the plan as the other sureties were 3 hours away, and could not provide backup supervision when Mr. Blevins was with Ms. Cordeiro and their daughter.

[23] I now turn to Mr Blevins’ submissions on the bail decision

a) Gave insufficient weight to the Release Plan (primary and secondary grounds);

[24] Mr. Blevins claimed that the learned Justice of the Peace gave little, if any, weight to the Release Plan. He completely ignored the $4,000 cash deposit and the bond of $100,000. Further, Mr. Blevins says that he dismissed the Plan, flippantly, when he said “where there’s a will there’s a way” in which the Plan would fail either to ensure Mr. Blevins’ return to court or reduce the likelihood of him committing further offences.

[25] I disagree. The plan was before the learned JP. His concern, implicitly, was with Mr. Blevins. Mr. Blevins’ counsel said that the Justice of the Peace should have trusted the plan, and not worried about trusting Mr. Blevins. The learned Justice of the Peace, by using of the phrase “where there’s a will, there’s a way,” indicated that he did not think that the Release Plan would contain Mr. Blevins. Indeed, the evidence before her was that Mr. Blevins used subterfuge and deceit to do what he was charged with doing, and of intentionally avoiding the police in Canada and the U.S., and the A.T.F. forces in the U.S.. The learned Justice of the Peace had faith that Mr. Blevins would likely be able to get around his sureties’ eyes, no matter how watchful.

b) Gave excessive weight to the Wire-Tap evidence, without evaluating it (secondary and tertiary grounds);

[26] Mr. Blevins says that the learned Justice of the Peace gave too much weight to the wire tap evidence. As Mr. Blevins submitted at the original hearing, wiretap evidence can be deceptive and unreliable. It should not be weighed heavily at a bail hearing since it has not been tested. The learned Justice of the Peace was entitled to rely on this evidence. The submission about its dangers was made. I cannot say that the learned Justice of the Peace’s reliance on the wiretap evidence was so heavy as to be clearly in appropriate, especially since Mr. Gibbons, one of Mr. Blevins’ sureties, identified Mr. Blevins as one of the participants in the wire-tap clips played at the bail hearing.

c) Gave excessive weight to Mr. Blevins’ U.S. connection and the risk of flight (primary and secondary grounds);

[27] I cannot conclude that the weight the learned Justice of the Peace gave to Mr. Blevins’ U.S. connections and the risk of flight, or of committing another offence while on bail, was clearly inappropriate. Mr. Blevins submitted to me that if he was facing charges in the U.S., he had no incentive to flee to the U.S. I do not agree. There is evidence to support the learned Justice of the Peace’s weighing of this factor. The charges Mr. Blevins faces in the U.S. regarding weapons possession are less serious (according to the agreed upon description of them) than his charges in Canada. He might choose the lesser of the evils. More important, however, is that Mr. Blevins’ offences required trans-border transactions. He moved freely between jurisdictions. His step father, in Florida, sold him three or four of the guns that he is charged with conspiring to bring to Canada.

d) Gave excessive weight to the seriousness of the offences (secondary and tertiary grounds);

[28] Mr. Blevins submitted that the charges, especially the gun charges, are not that serious. There were only four seized and some of them were legally owned. There were no direct victims of his alleged crimes. More importantly, because of the nature of the multijurisdictional investigation, the trial will be some time away, and it is unfair to keep Mr. Blevins in custody pending the trial.

[29] I cannot conclude that the learned Justice of the Peace’s decision in this respect was clearly inappropriate. Drug and gun offences have victims. I disagree that there are no “direct victims” in this case. There are four couriers who are proceeding through charges as a result of the alleged activities of Mr. Blevins. While there may be no clearly and specifically known individual victims at the time the offences are committed (assuming the definition of “victim” is a drug user or someone against whom a gun crime is committed), but they are victims none the less.

[30] Gun and drug crimes are clearly serious crimes, according to Ontario Courts.

[31] There is a risk of delay because of the multijurisdictional aspect of the case, but the risk is low. The matter is set for its third judicial pre-trial in April, 2016, at which both parties expect trial dates to be set.

e) Gave excessive weight to R. v. Pearson;

[32] Mr. Blevins pursued this ground of review not as an error of law, but as a clearly inappropriate weighing of factors. In my view, I cannot conclude he was clearly inappropriate. Pearson was accused with trafficking in narcotics, in a highly systematic way, as a commercial venture, across national borders. It is highly lucrative. The importation of firearms charges, on the evidence of the wire taps, is clearly highly profitable. The comparisons between Mr. Blevins and Pearson, are reasonable. As is said in Pearson, drug traffickers, by the nature of their business, have access to large amounts of cash and to sophisticated organizations. Mr. Blevins had the ability to arrange $50,000 on very short notice.

f) Failed to consider parity in bail results.

[33] Parity in bail terms for similar matters is laudable and preferable, if possible. Mr. Blevins says that his release terms should be the same as Donovan Brown’s. Mr. Brown is charged with the same offences as Mr. Blevins.

[34] The learned Justice of the Peace had before him a full record. Applying a deferential standard of review, I am unable to accept that his decision in this respect was clearly inappropriate. There are several reasons for this. First, it was not argued before him. It appears to be argued now only because Mr. Brown was granted bail. Second, bail parity is only achievable where there is parity in facts and circumstances. There are serious differences between Messers Brown and Blevins’ circumstances. Mr. Brown is Canadian and owns a home in Oakville. He was released into the custody of his wife, and was required to live with her and their children in Oakville. His mother in law has agreed to be a surety and has moved in with them to supervised Mr. Brown. Mr. Brown is to be supervised by his father-in-law at work.

[35] Mr. Blevins’ sureties are less close. None of them enjoy the close bond of a husband and wife or other family members. Mr. Blevins’ sureties are friends from their youth. Mr. Gibbons has the most contact, but it has been less than frequent. Mrs. Gibbons has had less contact still, and knows Mr. Blevins through her husband. The third surety has had almost no contact with Mr. Blevins since they were teenagers.

[36] Applying the deferential standard of review, I can find no clearly inappropriate ruling by the learned Justice of the Peace. The application is dismissed.

Trimble J.

Released: March 30, 2016