CITATION: R. v. McLean, 2017 ONSC 5124

COURT FILE NO.: DR(F) 596/17

DATE: 20170828

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEVON MCLEAN

Defendant

C. Bundy for the Crown

A. Robbins for the Defence

HEARD: August 25, 2017

RULING ON SECTION 520 BAIL REVIEW APPLICATION

RESTRICTION ON PUBLICATION A Non-Publication Order is made that publication of this ruling is prohibited until the trial has ended.

Ricchetti, J.:

THE CHARGES

[1] Mr. McLean was an airport employee who allegedly used his position to ensure cocaine was imported into Canada without detection or interception by the Canada Border Services Agency.

[2] On June 29, 2017, Mr. McLean was arrested in connection with a sophisticated, complex importing organization at the Pearson International Airport.

[3] Mr. McLean was charged with Importing Cocaine (X3), Conspiracy to Import Cocaine (X2), Trafficking a firearm and a variety of firearm related offences.

[4] A Show Cause hearing was held before Justice of the Peace Murphy on July 6, 2017. (Show Cause Hearing)

[5] The Justice of the Peace ordered Mr. McLean detained on the secondary ground.

THE ALLEGATIONS

The Conspiracy and Importation charges

[6] The police investigation and evidence against Mr. McLean includes police surveillance, intercepted communications, and undercover officers posing as drug dealers.

[7] The police investigation identified Wayne Blackwood (also a Pearson airport employee) and Mr. McLean, a re-fueler at Pearson airport, as persons (along with other persons) involved in a conspiracy to import numerous shipments of cocaine into Canada.

[8] The intercepted communications and surveillance established Mr. McLean’s direct involvement in the scheduling of cocaine shipments and participating in their entry into Canada undetected. Mr. McLean had a direct involvement in the conspiracy. Mr. McLean used his security clearance to be in secured areas to carry out the offences. For example, one communication shows Mr. McLean travelling to Jamaica to re-schedule a shipment of cocaine. Mr. McLean made numerous trips to Jamaica in furtherance of the conspiracy.

[9] In some cases, the conspirators were successful in the importation of cocaine: including: 38 kg on May 4, 2017, 101 grams of cocaine, 2 kg of cocaine on June 11, 2017.

[10] In other cases, a number of shipments of cocaine, arranged by the conspirators for importation, were intercepted by the CBSA.

[11] The total amount of importation of cocaine over the 6 month period prior to Mr. McLean’s arrest was over 90 kilograms of cocaine. The value is in the millions of dollars.

[12] The method of importation by this organized group of individuals was very sophisticated, using persons working at the airport to intercept drugs before CBSA inspection. Mr. McLean would at times, attend at the airport as a re-fueler, to remove shipments of cocaine even though he was not scheduled to work on that shift.

[13] The surveillance, intercepted communications and undercover officers establish a very strong and overwhelming case against Mr. McLean and his involvement in the conspiracy and the importation charges.

[14] The Defence submits that Mr. McLean is not the “mastermind”. Whether he is or not, it is clear that Mr. McLean was a very integral part of this organization, arranging shipments, providing firearms and avoiding interdiction by CBSA.

The Firearm Charges

[15] Mr. McLean has a number of firearms registered to him.

[16] On the trafficking firearm charge, the police surveillance have communications from Mr. McLean that he was dropping off a “machine”, which the police believe is a firearm. This is a reasonable inference to be drawn from the intercept.

[17] The police also have communications that Mr. McLean, after speaking with Mr. Blackwood, was going to “pick up his guns”.

[18] In another communication, Mr. McLean, while at the airport, said to his wife that he had two locked up and a “machine” with him. This is particularly troubling that Mr. McLean would have a firearm on him while in the secured area of the airport.

[19] On June 29, 2017, the police executed a search warrant at Mr. McLean’s home. Two firearms (without gun locks) were located in a locked tool box.

[20] A third firearm was found on the dresser beside Mr. McLean’s bed. This firearm was loaded (one round in the chamber and a magazine). The police also found $50,000 in cash in the dresser.

[21] At the time of the Show Cause hearing, a fourth firearm was missing. At this hearing, the Crown concedes there is evidence the firearm had been exported.

[22] Aside from the “missing firearm” charge, the remaining firearm charges are also a very strong and compelling case against Mr. McLean.

THE SHOW CAUSE HEARING

[23] As stated above, the Show Cause Hearing was held on July 6, 2017.

[24] On the trafficking in firearms and importation charges, the onus is on the Defence.

[25] Section 515(6) of the Criminal Code provides:

Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

(a) with an indictable offence, other than an offence listed in section 469,

(vi) that is an offence under section 99, 100 or 103,

(d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.

[26] The Crown opposed release bail on all three grounds.

The Proposed Plan at the Show Cause Hearing

[27] The Defence proposed, as sureties, Chevaline Henry (a friend of 11 years), Ralston McLean (cousin), and Christopher Adrian Martin (step son).

[28] Mr. McLean proposed to live with Ms. Henry in her two bedroom apartment.

[29] Mr. McLean would be employed by Mr. Ralston McLean’s tiling company.

[30] The sureties would pledge very little money under this plan: Mr. Ralston would pledge $8,000; Ms. Henry would pledge $0; and Mr. Ralston McLean would pledge $0.

The Justice of the Peace’s Reasons

[31] The Justice of the Peace found that the Crown had an exceptionally strong case.

[32] The Justice of the Peace had difficulties with the evidence of several of the sureties.

[33] The Justice of the Peace found that detention was not required under the primary or tertiary ground.

[34] On the secondary ground the Justice of the Peace found:

There is a substantial likelihood for further criminal offences. So the plan submitted is flawed. The monetary component required in this situation is not there. None of the sureties have a significant amount to pledge to the court. ....I need something more binding than that...

There are many unanswered questions in the plan... There are unexplained gaps in the plan of supervisions, time when you could make contact with others....

Because of the type of allegations, Mr. McLean, there needs to be a substantial amount pledged by the sureties. Not only to bind you but them and also to make it clear to them that this is a serious matter with far reaching consequences. The plan needs to have some teeth in it. I do not see that with these sureties and this plan....

I find that the proposed is deficient and inadequate and lacking in real substance....

[35] The Justice of the Peace went on to express his concerns regarding the missing firearm and relating it to public safety. As set out above, the “missing firearm” was exported and now does not figure at all in this decision.

[36] The Justice of the Peace concluded that Mr. McLean had not met the onus as regards to the secondary ground on the “reverse onus” charges. The Justice of the Peace found that the Crown met its onus on the firearm charges.

THE APPLICATION

[37] This is a Defence application for judicial interim release under s. 520 of the Criminal Code.

THE LAW

[38] Section 520 (7) of the Criminal Code provides:

(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,

and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.

(emphasis added)

Material Change in Circumstances

[39] In R. v. St. Cloud the Supreme Court stated the following regarding new evidence:

[131] Moreover, despite the importance of these values, this Court has also stated that the due diligence criterion should not be applied as strictly in criminal matters as in civil cases: Palmer, at p. 775, quoting McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484, at p. 493. The weight to be given to this criterion depends on the strength of the other criteria or, in other words, on the totality of the circumstances: R. v. Price, 1993 CanLII 76 (SCC), [1993] 3 S.C.R. 633, at p. 634; see also Warsing, at para. 51. In G.D.B., this Court stated that “an appellate court should determine the reason why the evidence was not available at the trial”: para. 20. A generous and liberal interpretation of the meaning of “new evidence” in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this Court.

[132] I am therefore of the opinion that a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. This is how the “due diligence” criterion from Palmer must be understood in the context of the review provided for in ss. 520 and 521 Cr. C. The nature of the release system and the risks associated with it demand no less.

[133] I wish to be clear that such new evidence is not limited to evidence that was unavailable to the accused before the initial hearing because, for example, the prosecutor did not disclose it to the accused. It is possible that the prosecutor will give the evidence to the accused only at the very last minute before, or very shortly before, the initial hearing. Depending on the circumstances of a given case, it could be unreasonable and unfair to say that if the accused does not use such evidence at the initial hearing, he or she will be precluded from adducing it on a subsequent application for review, that is, after his or her counsel has had the necessary time to analyze it and weigh the advantages and disadvantages of using it. In each case, the reviewing judge will have to determine whether the reason why the accused did not tender such pre-existing evidence earlier was legitimate and reasonable.

[134] This requirement to show a reason that was legitimate and reasonable means that it will be open to the reviewing judge to refuse to admit new evidence where it is alleged to have actually been in the interest of the accused to drag out the application for release or where the accused is alleged to have tried to use the review to engage in judge shopping. In this way, the conception of new evidence in the context of ss. 520 and 521 Cr. C. reflects both the need to ensure the integrity of our criminal justice system and the need to protect the rights of accused persons in proceedings that are generally expeditious.

(emphasis added)

[40] In R. v. A.A.C. 2015 ONCA 483 the Court of Appeal summarized the need for a material change on a subsequent bail review:

[51] Third, St-Cloud addresses the bail review authority under ss. 520 and 521 of the Criminal Code. With respect to those sections, St-Cloud instructs that it will be appropriate for a bail review judge to interfere with a bail justice’s decision in one of three circumstances: i) if the bail justice erred in law; ii) if the impugned decision was “clearly inappropriate”; or iii) where new evidence submitted by the accused or the prosecutor shows a material and relevant change in the circumstances of the case: at paras. 121 and 139.

[52] Fourth, where bail is sought on a review under ss. 520 or 521 of the Criminal Code based on new evidence that is said to constitute a material change in circumstances, the admissibility of that new evidence is to be evaluated in accordance with a modified version of the four-part test for the admission of fresh evidence set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759: St-Cloud, at paras. 128 – 29. However, “[g]iven the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end”, and in view of the relaxed approach to the rules of evidence at bail hearings mandated by s. 518 of the Criminal Code, the four Palmer criteria are to be applied in a flexible fashion: at para. 129.

(emphasis added)

[41] In R. v. Whyte 2014 ONCA 268

[25] Courts have recognized that a material change in circumstances will warrant judicial interim release where, for example, in the bail pending appeal context, additional sureties become available, R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 47 O.R. (3d) 761 (C.A), or where the applicant offers a new legal argument and rearticulates existing arguments in a more comprehensive form, Daniels, supra.

[26] In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material.[2]

(emphasis added)

Secondary Ground

[42] The secondary ground requires detention:

where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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;

[43] As set out in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

Tertiary Ground

[44] The Supreme Court in St. Cloud set out the approach to bail under the tertiary ground:

[55] Section 515(10)(c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decide whether detention is justified.

[56] It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case or the possibility of a lengthy term of imprisonment.

[71] Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c) Cr.C., I think it will be helpful to give a few examples. Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.

[45] The Supreme Court in St. Cloud summarized the essential principles applicable to s. 515(10)(c) bail application as follows:

[87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

i. Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.

ii. Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

iii. The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.

iv. A court must not order detention automatically even where the four listed circumstances support such a result.

v. The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

vi. The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.

vii. No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

viii. This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

ix. To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre‑trial detention will usually be ordered.

THE POSITION OF THE PARTIES

[46] The Defence submits that there is a material change in circumstances, pointing to the several inaccurate facts set out in the Reasons (relating to the missing firearm and unknown relationship with Marcia McLean which is admitted to be unrelated to the accused) and the new sureties with substantial amounts pledged.

[47] The Crown submits:

a) there is no material change in circumstances;

b) the Defence has not met its onus; and

c) detention is warranted under all of the grounds.

ANALYSIS

Factual Background

[48] Mr. McLean is 47 years old. He is a Canadian citizen. He is also a Jamaican citizen. He has no criminal record.

[49] Mr. McLean was an employee at Pearson for the past 15 years.

[50] Mr. McLean has a wife in Canada and a step son. Mr. McLean has no other family in Canada other than his cousin. The rest of his family is in Jamaica.

[51] Mr. McLean visited Jamaica 22 times since March 2014.

[52] One witness described that the plan for the family was to move back to Jamaica.

[53] The evidence discloses that Mr. McLean’s wife was aware of Mr. McLean’s activities, firearms and their use.

Material Change in Circumstances

[54] I am satisfied there is a material change in circumstances. The Justice of the Peace identified a serious shortcoming of the proposed sureties – lack of monetary amount pledged and gaps in the supervision.

[55] The new plan of release deals specifically with these shortcomings. Mr. Garnet Rickman, and Mr. George Martin are each prepared to pledge in excess of $400,000. Mr. Christopher Martin is prepared to pledge $8,000. Mr. Wilson is prepared to pledge $7,000.

[56] Further, the new proposed plan of release provides for 24 hour supervision which includes house arrest except while at work. A surety will be present with Mr. McLean at all times – work, home and while travelling.

[57] This is not a shuffling of the deck but rather putting forward new substantial sureties to overcome problems identified by the Justice of the Peace. Given the significant change, the new proposed plan of release should be considered by this court.

A Repeat Of The Analysis

[58] Having found a material change, this court must repeat the analysis under s. 515 of the Criminal Code. St. Cloud provides:

[138] If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C.as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified. The Palmer criteria, modified as I have just done, must not be applied in a manner that delays or needlessly complicates the release process. As I explained above, that process, by its very nature, generally requires an expeditious and flexible procedure. The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.

[139] In conclusion, a reviewing judge can intervene where relevant new evidence is tendered, where an error of law has been made or, finally, where the decision was clearly inappropriate.

The Proposed Sureties

Garnet Rickman

[59] Mr. Rickman is a busy man. He has two jobs – a procurement manager and the owner of a cleaning company. He is a family friend of Mr. McLean. He is prepared to pledge over $400,000 as surety because he “trusts and respects” Mr. McLean.

[60] Mr. Rickman initially responded that he didn’t know “Patrick Anthony Williams”, another person involved in the organization. However, he eventually admitted he knew Mr. Williams but “didn’t know his middle name”. This was troubling evidence.

[61] Much of Mr. Rickman’s supervision is dependent on Mr. Martin to be present with and supervise Mr. McLean during the daytime.

George Anthony Martin

[62] Mr. Martin is a friend of Mr. McLean despite being 15 years older. He has known Mr. McLean for the past 18 months.

[63] Mr. Martin knows Mr. McLean through work and church. This evidence was somewhat misleading.

[64] Mr. Martin works at Cass’ garage doing body work. He is not a mechanic. Essentially, he operates an independent body shop in the garage. Mr. McLean brings his car to the garage for “oil changes and other work”. It’s hard to imagine that Mr. Martin would get to know Mr. McLean very well during such occasional encounters at the garage.

[65] As for the church, Mr. Martin eventually admitted in cross examination, that Mr. McLean and he go to different churches. Occasionally, with the approval of the pastor, he attends the same church as Mr. McLean.

[66] How often Mr. Martin and Mr. McLean encounter each other is unclear. When asked by the court how often he had met Mr. McLean in the first 6 months of this year, he responded “sometime, twice”. This was clarified in re-examination to two to three times a month. I am not persuaded that Mr. Martin knows Mr. McLean very well at all or well enough to supervise Mr. McLean.

[67] Then there is another difficulty with Mr. Martin. Mr. Martin is supposed to have Mr. McLean work with him in the garage and supervise him during the day. The garage is owned by Mr. Cass. Mr. Martin has not spoken with Mr. Cass about Mr. McLean working at the garage. Mr. Martin said he doesn’t expect any problems bringing Mr. McLean to the garage. This omission is highly unusual and leaves this court with concerns regarding the proposed plan and the expected supervision during the day.

[68] Mr. Martin is not an acceptable surety.

Christopher Martin

[69] As set out above, Christopher Martin is the step son of Mr. McLean. He is prepared to pledge $8,000.

[70] Despite being acceptable as a surety by the Justice of the Peace, this court has concerns about Christopher Martin. As set out above, there is evidence that Mr. McLean’s wife, the mother of Christopher Martin, was aware of Mr. McLean’s illegal activities.

[71] The Defence has suggested that a term of release could include non-communication by Mr. McLean with his wife. The difficulty is that such a term could easily be undermined by allowing Mr. McLean to communicate, be with and at times be supervised by Christopher Martin.

[72] I have serious reservations regarding Christopher Martin as a surety.

Wilton Wilson

[73] Wilton Wilson is a friend of Mr. McLean. He is prepared to pledge $7,000. He is prepared to assist in the supervision of Mr. McLean when necessary.

The Proposed Plan

Primary Ground

[74] There are concerns regarding Mr. McLean’s lack of connection with Canada and his extensive connections with Jamaica both with family, extensive travels to and potential connections regarding drug suppliers in Jamaica.

[75] This concern is increased when evidence establishes that Mr. McLean intended to move back to Jamaica.

[76] There is a risk Mr. McLean might not attend court in this case despite the fact his passport has been taken by the police.

Secondary Ground

[77] While the monetary pledges by the proposed sureties has increased, I remain concerned that there continues to be a substantial likelihood that Mr. McLean will commit a criminal offence if released.

[78] I come to this conclusion because:

a) Mr. McLean’s contacts who were involved in the supply of cocaine for importation in Jamaica remain at large. The organization involved at the airport was extensive. Supervision of Mr. McLean would require no contact with any of the other persons charged or persons involved in the supply or importation of cocaine – many of whom are unknown. How would this work unless Mr. McLean has no access to a telephone, internet or other means to communicate with such persons. This condition would be difficult to supervise;

b) Mr. McLean is involved in the drug/gun culture as shown from the evidence including trafficking in guns. Keeping a loaded gun near his bed demonstrates the extent of Mr. McLean’s familiarity and involvement with firearms. Allowing others to have access to his guns is extremely troubling and shows Mr. McLean’s disregard for the violence which might arise through firearms. The evidence even suggests that Mr. McLean had a firearm while working in the secured area of the airport;

c) The sureties, particularly Mr. Martin, do not know Mr. McLean well. It is unclear whether Mr. McLean will abide by their supervision. This is an important pillar of supervision. I am mindful that Mr. McLean has little family in Canada;

d) This charges involve the importation of millions of dollars of cocaine, in the last 6 months alone. Mr. McLean has made 22 trips since 2014 to Jamaica. The $817,000 to be pledged is not a large amount of money in contrast to the amounts involved in the offences. It should also be remembered that Mr. McLean had $50,000 in the dresser beside him. What other monies he has or has available is unknown;

[79] I am satisfied that there remains a substantial likelihood that Mr. McLean would commit a crime if released, even if on the proposed bail conditions.

Tertiary Ground

[80] Mr. McLean occupied a security clearance position at the airport. Yet, there is overwhelming evidence he used this security clearance position to commit offences in organizing and importing vast amounts of cocaine into Canada. As part of the drug culture, Mr. McLean was involved in firearms including trafficking guns. He sleeps with a loaded gun nearby!

[81] The Crown’s case is overwhelming.

[82] The gravity of the offences are very serious.

[83] The circumstances of the offences demonstrate that the motivation was large financial gain at the expense of inflicting the public with drug use and the potential for violence with a firearm to carry out such illegal activities.

[84] No doubt, if convicted, Mr. McLean will receive a lengthy prison sentence.

[85] While the above four factors are the “main factors to be balanced” (See St.-Cloud para 69), this court is obliged to consider all other relevant factors in determining whether, in the case before this court, detention is necessary to achieve the purpose of maintaining confidence in the administration of justice.

[86] Would the proposed plan of release reduce or eliminate the concerns a member of the public might have? Given the above, I am not persuaded that it would.

Mr. Blackwood’s Release

[87] The Defence points to the fact Mr. Blackwood obtained bail as some evidence that Mr. McLean should be released. Without the evidence before the presiding judge regarding Mr. Blackwood’s charges and circumstances, involvement in the organization, the proposed plan of release and other relevant factors, it is impossible to draw anything from the fact Mr. Blackwood was granted bail.

CONCLUSION

[88] The Defence has failed to meet its onus. The Defence application is dismissed. Mr. McLean will remain in custody until further order of this court.

Ricchetti, J.

Released: August 28, 2017