COURT FILE NO.: CR-18-1000005900BR
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY
– and –
ADRIAN PASCAL
Accused
Jason Mitschele, for the Crown
Jennifer Budgell, for the Accused
HEARD: May 3, 2017
B.A. ALLEN J.
REASONS FOR DECISION ON BAIL
ADRIAN PASCAL’S CHARGES AND BACKGROUND
[1] Adrian Pascal was initially charged with several firearm-related offences involving possession of loaded firearms. He also faced several drug charges related to possession for the purpose of trafficking cocaine, crystal meth and OxyContin. He was arrested with other co-accuseds as part of an ongoing Toronto Police Service investigation that began in late 2017. Mr. Pascal was arrested on January 18, 2018 and has remained in custody since then. He was denied bail in a show cause hearing on January 22, 2018.
[2] On January 22, 2018, after searching two vehicles connected to Mr. Pascal and his friend, Imran Maragh, the police laid further firearms, drugs and proceeds of crime charges.
[3] Mr. Pascal was convicted in 2014 of assault with a weapon and possession of a weapon. After those convictions, he came to the attention of Canadian immigration authorities. He was detained and released on an immigration bond in January 2017 under the supervision of his girlfriend, Feven Abraham, and his sister-in-law, Shannon Walsh.
[4] Mr. Pascal is 30 years of age. In his affidavit filed for this hearing, Mr. Pascal states he was born in Jamaica and came to Canada where he has lived since age six. He has attained permanent residence but not citizenship in Canada. In his affidavit, Mr. Pascal asserts that Canada is his home. He has few relatives or contacts in Jamaica and he is actually fighting in the immigration system to stay in Canada.
[5] Mr. Pascal has a ten-year criminal record going back to his youth involving drugs, assaults, firearm offences, robbery and threatening offences. As noted above, in 2014 he was convicted of assault with a weapon and possession of a weapon.
[6] Mr. Pascal has a six-year-old daughter, who before his detention, he supported financially. At the time of his arrest he was residing with his girlfriend, Ms. Abraham. Before his arrest, he worked for three years as a driver and mover for a moving company.
[7] Mr. Pascal’s immigration bail was cancelled after the charges before the court were brought. His immigration matter is currently before the Immigration and Refugee Board.
BACKGROUND TO THE CHARGES
[8] The Toronto Police Services drug squad was investigating Mr. Pascal and his friend, Imran Maragh, in relation to drug trafficking. Surveillance captured what the police believed were drug transactions with various people. The suspects used two vehicles during their activities, a 2016 BMW and a 2016 Honda. The two men were observed swapping their use of the two vehicles during their activities. The police were anticipating executing several warrants.
[9] As I understand it, Mr. Pascal was seen on one occasion, on December 21, 2017, doing what the police concluded was a drug transaction.
[10] Mr. Pascal and Mr. Maragh were arrested near a plaza. When Mr. Pascal was arrested he was in the Honda. The police found Mr. Maragh in possession of a handgun in his waistband. Mr. Maragh was found in possession of keys to the BMW, and Mr. Pascal in possession of keys to the Honda. The Honda is not registered to Mr. Pascal.
[11] A search warrant was obtained for a residence at 28 Avondale Ave., unit 501 in Toronto. When Mr. Pascal was arrested he was in possession of a fob to enter the building and a key to the unit where the police on a search warrant located drugs and firearms in a safe. During surveillance, on one occasion, the police observed Mr. Pascal go up on the elevator of the building to the 5th floor. They did not see him go into the unit. There were no identification documents for Mr. Pascal or anyone else located at this residence.
[12] A search warrant was also obtained for the two vehicles. Second sets of firearm and drugs charges were laid after the police did a thorough search of the vehicles. The police found that the vehicles were equipped with hidden locked compartments that contained large quantities of drugs and firearms. Neither man was authorized to be in possession of a firearm. Mr. Maragh was re-arrested on January 23, 2018.
THE SHOW CAUSE HEARING
[13] The justice of the peace concentrated his decision on the secondary and tertiary grounds. He found Mr. Pascal’s circumstances with the first set of charges on January 18, 2018 were compounded by the additional charges laid on January 22, 2018. The combination of the serious charges arising from the search of the residence and the search of vehicles were critical to the justice`s decision whether to grant bail.
[14] The justice was also concerned that the sureties proposed at the show cause hearing were the same persons who signed for his immigration bond, his girlfriend, Ms. Abraham, and sister-in-law, Shannon Walsh. On the secondary grounds, the justice’s concern was that those persons were responsible for Mr. Pascal when he is alleged to have committed the serious crimes before the court. He did not have confidence that the plan of supervision was sufficient as a deterrent to re-offence.
[15] On the tertiary grounds, the justice found the Crown has a strong case and that if convicted Mr. Pascal stands to serve a long prison term. The fact of Mr. Pascal having a criminal record with serious charges, some similar to the charges before the court, further influenced the justice`s decision to deny bail.
MATERIAL CHANGE IN CIRCUMSTANCES
[16] St. - Cloud set down three circumstances where an order can be varied on a bail review:
a) where the justice has erred in law;
b) where impugned decision was clearly inappropriate; or
c) where there is a material change in circumstances;
[St. – Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121, (S.C.C.)]
[17] Under s. 515(10) (b) bail can be denied “for the protection or safety of the public including any “substantial likelihood” that the accused will commit a criminal offence or interfere with the administration of justice. The defence has put forward a plan of supervision it argues will minimize the likelihood that Mr. Pascal will re-offend. In the defence’s view the plan represents a material change in Mr. Pascal’s circumstances from those that existed on January 18, 2018 when bail was denied.
[18] This is a defence onus case as required under s. 515 (6) of the Criminal Code with firearm offences. The burden of proof is on the defence to prove that Mr. Pascal ought to be released into the community on bail. The primary ground is not at issue in this case. The Crown opposes release on the secondary and tertiary grounds.
[19] The defence proposes house arrest, seven days a week, 24 hours a day, supervision by three different sureties and the application of an ankle monitor.
[20] The defence proposes as sureties Mr. Pascal’s mother, Donna Brooks, his stepfather, Jeffrey Ambersley, and a friend, Aaron Charles. The arrangement is that Mr. Pascal will reside at the home of his mother and stepfather at 285 Finch Ave., unit # 4 in Pickering.
[21] Until recently the mother worked as a chef at a restaurant where the hours were 8:00 a.m. until 6:00 p.m., Wednesday to Sunday, earning $20.00 an hour. She has been off work due to a disability with no definite return date. She will be available all day to supervise her son while off work.
[22] Mr. Ambersley works for a moving company where he has worked for 21 years. His hours are 7:00 a.m. to 3:00 p.m., Monday to Saturday. He will be available after work to assist with supervising Mr. Pascal.
[23] Ms. Brooks has previously been a surety for Mr. Pascal and she was never in a situation where she was required to call the police. Mr. Ambersley had been a surety for his biological son and he never had a reason to pull his bail. Ms. Brooks and her husband are prepared to pledge their entire $30,000 in savings. They understand that they risk losing their savings if Mr. Pascal breaches. They understand their obligation to call the police if Mr. Pascal is in non-compliance.
[24] Aaron Charles, age 31, the third surety, has known Mr. Pascal for over a year. He works as a realtor and has been licensed for six years. He owns a real estate development company through which he purchases and sells properties. Mr. Charles indicated that his work hours are flexible and he can be available to supervise Mr. Pascal and will be in touch with Mr. Pascal and the other two sureties throughout the day.
[25] Mr. Charles has never acted as a surety previously but expressed knowledge of what is involved and what his obligations would be. He undertakes to keep track of whom Mr. Pascal is communicating with given Mr. Charles’ understanding that Mr. Pascal would be subject to prohibitions with respect to contact with certain people.
[26] Mr. Charles has $750,000.00 equity in his home and he is willing to pledge $75,000.00 with the understanding that he risks losing that money if Mr. Pascal breaches.
[27] The ankle bracelet is a further means of monitoring Mr. Pascal. Both the company that provides the service and the police will be able to track Mr. Pascal’s movements throughout the day and evening every day. The police will be able to respond quickly to a breach by Mr. Pascal. The combination of the 24/7 supervision with the ankle monitor will have a definite deterrent effect on Mr. Pascal escaping the notice of the police and the control of his sureties.
[28] It is apparent that the previous two sureties were not in a position to supervise and control Mr. Pascal if he was at liberty to get involved in the alleged course of criminal activity before the court. It is understandable that the justice at the show cause hearing expressed reservations about granting bail.
[29] I find the proposed plan of supervision does represent a material change in circumstances. It presents one of the most stringent arrangements available - house arrest with 24/7 supervision by three sureties, a large pledge of security by the sureties, and an ankle bracelet through which the police can track Mr. Pascal’s movements.
THE TERTIARY GROUNDS
[30] The court is required to consider the factors set down by the Supreme Court of Canada in R. v. St -Cloud. Section s. 515(10) (c) of the Criminal Code requires the court in deciding pre-trial detention to consider whether the detention of the accused “is necessary to maintain confidence in the administration of justice”.
[31] In making this determination the court must first consider the following four circumstances that are expressly referred to in s. 515(10) (c):
(a) the apparent strength of the prosecution’s case;
(b) the objective gravity of the offence in comparison with the other offences in the Criminal Code;
(c) the circumstances surrounding the commission of the offence, whether a firearm was used; and
(d) whether the accused is liable for a potentially lengthy term of imprisonment.
[R. v. St-Cloud]
[32] St-Cloud held that the court is required to consider all the circumstances of each case with particular attention to the four enumerated factors. No single circumstance is dispositive. The court must consider together the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all the relevant circumstances. The ultimate question to be asked by the court after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice.
[33] The Crown’s case in some ways appears to be strong. But from another perspective there seems to be gaps in the proof for the charges.
[34] On the possession of drugs and firearms in the vehicles, there is evidence that suggests control of the contraband. Mr. Pascal had a key to the Honda containing contraband in a hidden compartment and was in the Honda when he was arrested. He was spotted also driving the BMW. The contraband in the Honda and BMW however was not in plain sight. This could weaken the Crown`s ability to prove the element of knowledge of the contraband in the vehicles.
[35] On the possession of the firearms and drugs at the residence, there appears to be evidence of control since Mr. Pascal was found to have a fob and key that allowed him to enter the building and the apartment unit where the safe containing the contraband was stored. The police saw Mr. Pascal on one occasion enter the 5th floor but did not see him enter the unit. Again, the contraband was not in plain sight. This might tend to lessen the ability to prove Mr. Pascal’s knowledge of the contraband in the safe.
[36] I do not conclude that the Crown has a decidedly strong case.
[37] The offences committed are very serious. The combination of loaded firearms together with large quantities of drugs increases the severity of the crime. The fact that the accused has a criminal record that includes fire and drug offences adds an adverse element. The seriousness of the offences if considered alone tends to point away from release. But the factors are not to be considered in isolation.
[38] The context surrounding the offences must be taken into account. The police were investigating Mr. Pascal and his friend for a rather prolonged period. So they were able to gather considerable evidence. However, in the three months of investigation which involved surveillance, the police only observed Mr. Pascal do what they believed was a drug transaction on one occasion. He was not arrested and detained at that time. So whether what they saw was a drug transaction is not entirely clear.
[39] Mr. Pascal, if convicted, is bound to be sentenced to a lengthy prison term particularly because of the number and seriousness of the crimes and his criminal record. This factor if considered alone would tend to point away from release on the tertiary grounds.
CONCLUSION
[40] In considering whether to grant release the three s. 515(10) grounds should not be treated as if they are separated by a wall.
[41] The Supreme Court of Canada in R. v. Antic provides some guidance. The Court must presume that an accused should be released on the least restrictive release which is an undertaking without any conditions attached. A release that is more restrictive must be justified by showing that less restrictive forms of release should not be ordered: [R. .v Antic, 2017 SCC 27 (S.C.C.)].
[42] Given the seriousness of the alleged crimes and Mr. Pascal’s past criminal record and his criminal activity while on immigration bail, strict bail terms are called for if he is to be released. I find, in all the circumstances, balancing the four Antic factors, that the defence has met its onus to show that detention “is not necessary to maintain confidence in the administration of justice”.
DISPOSITION
[43] I grant bail on the following terms:
• Mr. Pascal shall be under house arrest at the sureties’ residence at 285 Finch Avenue, unit #4, Pickering, Ontario under the supervision of his sureties, Donna Brooks, Jeffrey Ambersley and Aaron Charles seven days a week, 24 hours a day;
• Donna Brooks and Jeffrey Ambersley shall together pledge $30,000.00 security;
• Aaron Charles shall pledge $75,000.00 security;
• Mr. Pascal shall not be outside the sureties’ residence without being accompanied by one of his three sureties;
• Mr. Pascal shall not be in possession of any weapons;
• Mr. Pascal shall not be in possession of any illegal substances;
• Mr. Pascal shall not have any direct or indirect contact with Imran Maragh or his other co-accused; and
• Mr. Pascal shall wear an ankle bracelet provided by Recovery Science Corporation at all times while on bail.
B.A. ALLEN J.
Released: May 8, 2018
COURT FILE NO.: CR-18-1000005900BR
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY
– and –
ADRIAN PASCAL
Accused
REASONS FOR DECISION ON BAIL
B.A. ALLEN J.
Released: May 8, 2018