Regina v. Emmanuel Bailey

CITATION: R. v. Bailey, 2016 ONSC 8116

COURT FILE NO.: CF-16-10000329-00BR

DATE: 20161223

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. Emmanuel Bailey

BEFORE: E.M. Morgan J.

COUNSEL: Jon McGrath, for the Crown Hillson Tse, for the Applicant

HEARD: December 23, 2016

ENDORSEMENT – Bail REVIEW

[1] Mr. Bailey has been charged with offences in respect of two firearms, one found under his bed in the residence where he lived with his spouse and 3 year old child, and another found in a compost bin in the backyard of his father’s house. He is also charged with possession of marijuana for the purpose of trafficking.

[2] A bail hearing was held on November 18, 2016 before Justice of the Peace P. Deacon, who denied bail and ordered Mr. Bailey detained. He seeks review on the grounds that the Justice of the Peace erred in a number of respects, including not considering relevant facts, taking into account extraneous facts, and failing to preserve the presumption of innocence.

[3] There is nothing different about the plan or the sureties proposed here than what was proposed before the Justice of the Peace. Although the J.P. stated that he was “impressed” with both sureties in terms of their honesty and sincerity in approaching their responsibilities, there were evident frailties in their financial state. The proposal is that Mr. Bailey live with his aunt-in-law, Ms. Wynne Crawford. She is on ODSP support and receives $1,300 per month. She has offered to pledge $1,000 toward bail. She testified that Mr. Baylie will stay in a small unoccupied bedroom of her home, without his spouse and child. She apparently has no room for them, and in any case appears to have health issues that would prevent her from caring for a full house.

[4] The other proposed surety is Mr. Baylie’s father, Alfred Franklin Thomas. Mr. Thomas earns $24,000 per year, and proposes a $10,000 pledge toward bail. He testified that he owns a home that is worth some $400,000, although he could not support that figure in any way. He says that there is $229,000 remaining on the mortgage on his home, which is barely $1,000 less than what he paid for it in 2004.

[5] The J.P.’s primary concern was that there is no indication as to how Mr. Bailey will earn a living if he is released and placed under house arrest, as in the proposed plan. He indicated that this gives rise to concerns on the secondary grounds under s. 515(10)(b) of the Criminal Code – i.e. that Mr. Bailey may engage in drug trafficking, which is one of the offences with which he has been charged (possession for the purpose). In my view, this does not offend against the presumption of innocence. A judicial official considering a bail application must at some level take account of the offences charged in order to assess the secondary grounds. The J.P. did not jump to the conclusion that Mr. Baylie is guilty of the offense charged, only that he has indeed been charged with it.

[6] I do agree with defense counsel that the Justice of the Peace erred in appearing to take judicial notice that the part of the city in which Mr. Baylie resides is disposed toward crime. There was nothing in the record about that, and it seems to have been a gratuitous comment in the J.P.’s reasons.

[7] That said, the J.P. was justifiably concerned with the lack of indication for any financial support for Mr. Baylie. The plan for his release does raise the question as to how he will support himself and put food on his table. Ms. Crawford, with whom he proposes to reside, cannot afford to give him both room and board. There is no indication in the affidavits that Mr. Baylie has any job prospects, or that he is trained in any employable trade, although he states in his affidavit that he would like to get a job.

[8] My further concern, and one shared by the Justice of the Peace, is that one of the firearms that form the subject matter of Mr. Baylie’s charges was found in Mr. Thomas’ backyard. Mr. Thomas is his second surety and is the person who would be responsible for taking Mr. Baylie wherever he needs to go when Ms. Crawford is unavailable – and given her health problems, she herself indicates that this is likely to be frequent since she does not go out of the house very much.

[9] Defense counsel says that the firearm found at Mr. Thomas’ house was in the backyard and is publicly accessible, and so anyone could have placed it there. That is, of course, true, but the fact that Mr. Baylie is charged with an offence relating to that very firearm is not something that can just be ignored.

[10] One of the allegations against Mr. Baylie is that he had a firearm at the residence of his proposed surety. That does not inspire confidence in the surety or the relationship between them. On the witness stand, Mr. Thomas indicated that he has not asked his son about the firearms in issue.

[11] Mr. Bailey has no prior criminal record, which is certainly a factor in his favour in assessing the secondary ground. However, his plan is a weak one. He will not be living with his spouse and child, which Crown counsel correctly calls an “unworkable” living arrangement. He will be living with his aunt, who cannot afford to support him financially, and yet he has no apparent financial prospects. His other surety is his father, who professes to know little about the offences with which his son is charged and on whose very property one of the firearms was found.

[12] Although the Justice of the Peace did make one error in taking into account extraneous observations about the neighbourhood in which Mr. Baylie resides, this error did not impact on the outcome of the decision. The secondary grounds are troublesome and, in any case, the proposed sureties and plan for Mr. Baylie’s release do not appear up to the task.

[13] I would dismiss the application. Mr. Baylie shall continue to be detained.

Morgan J.

Date: December 23, 2016