COURT FILE NO.: CR175000008600BR DATE: 20170524

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MATTHEW WARD-JACKSON Applicant

• and - HER MAJESTY THE QUEEN Respondent

Counsel: Kim Schofield, and Jennifer Hue for the Applicant Jill Cameron and Elizabeth Jackson, for the Crown

HEARD: April 28 & May 18, 2017

McCombs J.

JUDGMENT

Overview

[1] This is a bail review application, based on the claim that a material change in circumstances makes Mr. Ward-Jackson’s detention no longer justified.

[2] Mr. Ward-Jackson puts forward what is claimed to be a “solid plan” that will ensure that he complies with strict bail conditions. The plan includes two new proposed sureties and an electronic monitoring device. As well, the strength of the prosecution case is said to have weakened.

[3] Mr. Ward-Jackson has been in custody over three years, since his arrest on January 4, 2014. He faces two separate indictments, both involving firearms.

[4] The first indictment contains three firearms trafficking counts, alleging that Mr. Ward-Jackson made three separate sales of firearms in 2012. Two of the firearms allegedly sold by Mr. Ward-Jackson are said to have been used to commit murders.

[5] The second indictment contains 16 counts. The charges arose when Mr. Ward-Jackson was arrested at a residence on January 4, 2014 when police executed a search warrant. The search led to the seizure of firearms, ammunition, drugs, and cash. The 16 count indictment relates to the seizures and also includes five counts alleging breaches of various court orders. He was on $20,000 surety bail on drug charges at the time.

[6] Trial dates have been fixed and are not far off. The first trial will be on the firearms trafficking charges. That trial is set to proceed on August 8, about 2 ½ months from now. Trial on the sixteen-count indictment is scheduled for October 13.

[7] Mr. Ward-Jackson is 30 years old. His criminal record includes convictions for guns and drugs. He has previously served a sentence equivalent to 3.5 years for gun and drug offences.

[8] As I indicated earlier, Mr. Ward-Jackson was on $20,000 surety bail on drug charges when he was arrested on January 4, 2014. At that time, he was under strict conditions that included a number of restrictions including a curfew and a requirement that he live with Ms. Sanya Radogalevic, one of his sureties.

[9] While he was in custody as a result of his January 4, 2014 arrest, he was again arrested on March 31/14 and charged with the firearms trafficking offences that are said to have been committed in 2012.

[10] Mr. Ward-Jackson was ordered detained on November 14, 2014. Ms. Radogalevic was present in court that day. She is the person who had been a surety on the outstanding drug charges, and in whose home Mr. Ward-Jackson had been ordered to reside. She was there to offer to act as his surety again. However, she changed her mind after hearing the detailed allegations read out in court at the bail hearing, and was unwilling to act as his surety again. It is significant that she did not attend this bail review application and has not offered to act as Mr. Ward-Jackson’s surety. I am told that she is, however, prepared to have him stay in her residence, a two-bedroom apartment.

The Proposed Sureties

[11] Mr. Randall Ward is the applicant’s uncle. He is a 56 year-old elementary school teacher whose school is about a 15-20 minute drive from the applicant’s proposed residence. Mr. Ward’s home is about a 30 minute drive away. He testified that he feels he has a good relationship with the applicant, that there is a mutual respect. He would keep in touch with him daily. He would monitor his conduct as best he can and would report any breach to the authorities. He is prepared to put up $40,000 in equity for his nephew.

[12] Mr. Robert Cosentino is in his early 60’s, and is retired. He has an M.A. in psychology and is a former teacher and addictions counsellor. He is prepared to post $20,000 of equity as surety. The proposed plan is that Mr. Ward-Jackson would live at Sanya Radogalevic’s apartment and that Mr. Cosentino would live there as well, so that he could monitor Mr. Ward-Jackson’s behavior on a daily basis. Ms. Radogalevic had been Mr. Ward-Jackson’s surety on an earlier bail but is no longer willing to act as surety for him. She is however, willing to let him live in her apartment, and according to Mr. Cosentino, she is also willing to have him move into the apartment if Mr. Ward-Jackson is released on bail. The apartment is a two-bedroom apartment and Mr. Cosentino testified that he would either sleep in Mr. Ward-Jackson’s room or on the couch.

[13] Mr. Cosentino impressed me as sincerely supportive of Mr. Ward-Jackson, although he expressed some negative sentiments about the fairness of the charges against him, stating that he believes that “justice has been abused in certain areas”. He also testified that he believes that the proposed safeguard of requiring Mr. Ward-Jackson to wear an electronic monitoring device is “overkill”. He said he thinks it’s unnecessary and made the startling statement that “we kill animals more humanely than that”.

[14] Although I accept that Mr. Cosentino wants to lend guidance and support to Mr. Ward-Jackson, given his stated opinions that I have mentioned, I am not satisfied that he is an appropriate person to act as a surety in this case.

[15] As for the proposed electronic monitoring device, I accept that it will assist in limiting Mr. Ward-Jackson’s movements, but its efficacy in controlling his behavior has obvious limitations. See for example, the comments of Nordheimer J. in R.v. Bahman [2007] O.J. No. 4976 at paragraph 23.

[16] I turn now to the strength of the Crown’s case. It is argued on behalf of Mr. Ward-Jackson that the case against him suffers from significant frailties. I accept that there are triable issues as with virtually all criminal cases.

[17] However, I consider it significant that in each of the two sets of charges, there have been judicial determinations that the evidence is sufficient to put the accused on his trial. With respect to the gun trafficking charges set to proceed in August, the preliminary hearing judge, Mr. Justice Melvin Green, gave extensive reasons for his decision to commit the accused for trial. Although I accept that there are triable issues, in my view, the case on the gun trafficking charges faced by the accused appears to be strong.

[18] With respect to the guns and drug charges that are set to proceed in October, the preliminary hearing judge refused to commit the accused for trial and discharged him on those charges. However, the Crown was successful in reinstating the charges following a certiorari application before my colleague Mr. Justice Dambrot. In his July 18, 2016 judgment, reported as R. v. Ward-Jackson [2016] O.J. No. 3848, Justice Dambrot discussed the strength of the Crown’s case. See paragraphs 47 & 48. I agree with Justice Dambrot’s assessment of the evidence.

[19] As I mentioned previously, it was also argued that because Mr. Ward-Jackson has been in custody since January 4, 2014, he has already served a sentence which, on a ratio of 1.5 days for each day in pre-trial custody works out to a few months short of five years imprisonment. This sentence, it is asserted, is within the appropriate range of sentence for the charges he faces. I do not accept that submission for reasons I will briefly discuss when I discuss the tertiary, or public interest ground.

[20] To summarize, Mr. Ward-Jackson faces very serious charges including firearms trafficking charges. His trials are imminent. He has a criminal record which includes firearms possession. He has previously served the equivalent of a 3.5 year penitentiary sentence. He was on bail on drug charges when he was arrested on January 4, 2014.

[21] Moreover, the proposed plan of release is inadequate to ensure compliance with bail conditions. First, he proposes to live with Ms. Radogalevic, the same person who was his surety on drug charges when he was arrested in January of 2014. His bail required him to live with her at that time. Now she is unwilling to be his surety but apparently is willing to let him stay there and also to have the proposed surety, Mr. Cosentino stay in the two-bedroom apartment, sleeping either in Mr. Ward-Jackson’s bedroom or on the living room couch. Ms. Radogalevic did not attend court and I cannot evaluate the living arrangement without the benefit of her evidence. The two proposed sureties have not satisfied me that they can effectively manage Mr. Ward-Jackson if he is released on bail.

[22] I conclude that the plan of supervision is wholly inadequate to ensure that Mr. Ward-Jackson would not commit further offences if released on bail. Given his history, there is a substantial likelihood that he would commit further offences if released. His detention is therefore necessary for the protection of the public. He must therefore be detained on the secondary ground.

[23] Given my conclusion on the secondary ground, it is not necessary to deal with the tertiary ground. However, I wish to be clear that I am also of the view that Mr. Ward-Jackson must be detained on the tertiary or public interest ground as well. I turn now to a brief discussion of the reasons for my conclusion that Mr. Ward-Jackson’s detention is necessary in order to maintain confidence in the administration of justice.

Discussion and Legal Principles Related to the Tertiary Ground

[24] The relevant parts of the tertiary ground set out in s. 515(10)(c) of the Criminal Code are as follows:

• …where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all of the circumstances, including
• the apparent strength of the prosecution’s case,
• the gravity of the nature of the offence,
• the circumstances surrounding its commission, and
• the potential for a lengthy term of imprisonment.

[25] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, 4 C.R. (6th) 197, the Supreme Court of Canada emphasized that the tertiary ground for detention must be used sparingly. In denying bail, courts must not succumb to public opinion. Instead, the bail provisions must be applied with regard to the Charter s. 11(e) entitlement not to be denied bail without just cause.

[26] In considering all of the circumstances I have taken into account the apparent strength of the prosecution’s case, the gravity of the charges and the circumstances of their commission and the potential for a lengthy term of imprisonment.

[27] With respect to the potential for a lengthy term of imprisonment, I am well-aware that Mr. Ward-Jackson has been in custody for over three years and would if convicted be entitled to credit for having already served a sentence of close to five years imprisonment. If he is convicted, it will of course be for the trial judge to determine the appropriate sentence, but given the seriousness of the allegations, and the fact that Mr. Ward-Jackson has previously served a sentence equivalent to 3.5 years for firearms offences, he is clearly in jeopardy of receiving a term of imprisonment well in excess of five years. Furthermore, there are potentially very significant aggravating features, particularly with respect to the firearms trafficking charges that would have to be considered and evaluated by the sentencing judge.

[28] For these reasons, I conclude that a reasonable, informed member of the public, fully apprised of all the circumstances, would lose confidence in the administration of justice if the applicant were ordered released, even on the strictest conditions.

[29] I conclude that detention is necessary in order to maintain confidence in the administration of justice.

[30] It follows that I have concluded that the application must fail on the both the secondary and tertiary grounds.

[31] The application is dismissed.

McCOMBS J.