R. v. Nash, 2018 ONSC 4605

COURT FILE NO.: CR-17-3178-00BR DATE: 20180730 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MIGUEL NASH Defendant

COUNSEL: Lesley Pasquino, for the Crown David Genis, for the Defendant

HEARD: July 18, 2018

REASONS FOR DECISION

DE SA J.:

1The Crown has brought an application pursuant to s. 521 of the Criminal Code seeking the detention of the accused. On July 10, 2018, the Justice of the Peace granted Mr. Nash bail in relation to various charges from an incident on July 7, 2018 related to impaired driving and assault police. At the same hearing, Mr. Nash was also granted bail for breach of recognizance and impaired driving offences from April 22, 2017 (524 application). Mr. Nash had already pled guilty to the April 22, 2017 offences on November 9, 2017. His sentencing is scheduled to proceed on August 20, 2018.

2The Crown takes the position that the Justice of the Peace failed to properly apply the requirements of s. 515(6) – the reverse onus provisions – and failed to properly consider the public safety concerns raised by Mr. Nash’s release. The Crown asks that I vacate the bail and order Mr. Nash detained.

3Having reviewed the matter, I find that the accused is not an appropriate candidate for release. I find Mr. Nash’s detention is necessary both on the secondary and tertiary grounds. The release order is vacated and Mr. Nash is ordered detained in custody on all charges. My reasons are outlined below.

Background and Allegations

4On April 22, 2017, at approximately 1:41 a.m., York Regional Police (YRP) observed a black BMW travelling eastbound on Bantry Avenue in the Town of Richmond Hill. The BMW was travelling at a high rate of speed. The YRP officer observed a rear license plate of BSWZ303. A query of this plate showed that the registered owner was a suspended driver. The motor vehicle began driving erratically, turning down side streets at a high rate of speed. The YRP officer turned on her emergency lights to initiate a traffic stop. The vehicle turned into a private driveway on Silver Linden Drive and stopped. The YRP officer approached the driver side of the vehicle and found the driver’s seat unoccupied. A female was sitting in the front passenger seat and a male was in the back seat of the vehicle behind the driver’s seat, next to a dog.

5The YRP officer explained that this incident was being recorded and she could review the video to determine who was driving. The male in the back seat admitted he was the driver. He produced an Ontario Health Card with a photograph, and was identified as the accused (Mr. Nash or the accused). When the accused opened the rear door to produce the identification, the YRP officer smelled a strong odour of an alcoholic beverage emanating from the area of his mouth. His eyes were bright red in colour. His speech was slurred. The accused further advised that he was not allowed to be driving. The YRP officer reviewed the in-car camera footage and was satisfied that the accused was the driver. It was determined that the accused was disqualified from driving for life from an Impaired Driving conviction with a start date of September 17, 2010, and from a Fail to Provide Breath Sample conviction with a start date of September 17, 2010. The accused was also on outstanding charges from April 14, 2016 in Durham Region for Driving while Disqualified x2 and Fail to Comply with Probation x2. A condition of his undertaking required him to occupy only the rear seat of any motor vehicle. The accused was also on probation with a start date of April 6, 2016 and end date of July 5, 2017, with a condition not to consume any alcohol.

6At 1:50 a.m., the accused was placed under arrest for Impaired Driving, Breach of Court Order, and Driving while Disqualified and transported to YRP 4 District.

7Once at the YRP station, the accused provided two breath samples into an approved instrument. At 3:25 a.m., he provided a sample of 166 mg alcohol in 100 ml blood, and at 3:48 a.m., he provided a sample of 160 mg alcohol in 100 ml blood. The accused was charged with Impaired Operation of a Motor Vehicle, Operation of a Motor Vehicle with over 80 mgs alcohol in 100 ml of blood, Drive while Disqualified x 2, Fail to Comply with Probation and Fail to Comply with Undertaking, and held for a show cause hearing.

8On April 24, 2017, Justice of the Peace Forrest released the accused on a $5,000 recognizance with his mother, Sonia Anderson, named as surety. Under the terms of the recognizance, the accused was not to operate or have care or control of a motor vehicle.

9On June 21, 2017, the accused pled guilty to his outstanding Durham Region charge of Drive while Disqualified and received a sentence of 90 days intermittent starting June 30, 2017 and 6 months probation. His other Durham Region charges were withdrawn.

10On November 9, 2017, the Respondent entered guilty pleas to his outstanding YRP counts of Impaired Operation, Driving while Disqualified, Fail to Comply with Probation, and Fail to Comply with Recognizance. He is to be sentenced on August 20, 2018.

11On July 7, 2018, police were at Puglsey Avenue/Belvedere Crescent in the Town of Richmond Hill on an unrelated matter. Belvedere Crescent is a small residential street, and at the time, both sides of the street had motor vehicles parked along the shoulders of the roadway, leaving a narrow passage for vehicles. A silver SUV was travelling westbound along Belvedere Crescent and proceeded through this passage way at a rate of approximately 60-70 km an hour, narrowly missing parked cars and almost striking a YRP officer. At the time, the driver of the silver SUV was continuously laying on his horn. Officers got into their marked police vehicles which were parked at the time of the incident, and proceeded to follow after the vehicle with the intention to conduct a vehicle stop.

12A YRP officer activated her roof lights and the silver SUV pulled to the north side of Bedford Park Avenue just east of Yong Street. The driver of the vehicle then abruptly put the vehicle in motion and conducted a hard u-turn and turned into a parking lot south of the original stop location. Two YRP officers manoeuvred their police vehicles on both the rear driver and the passenger sides of the silver SUV to block it in.

13Police approached the vehicle, and the driver advised that, “He didn’t have his driver’s licence on him at the time” but provided a verbal name of “Paul Thompson”. When questioned if he had any alcohol to drink there was a long pause with no answer. The driver changed the subject to that he had just had a baby. As a name search was being conducted on the driver, a female party (later identified as Ms. Cooper) who was pushing a baby stroller came crying and screaming, “now you have done it Jamal.” Ms. Cooper provided officers with the Respondent’s name and date of birth. The accused then began making such comments as “let me kiss my baby and wife one more time. I’ve done some bad things I’m going away for a while.”

14The accused was placed under arrest for Dangerous Operation and Obstruct Justice. Once the accused was placed in handcuffs and was being escorted back to a marked police vehicle, he became highly agitated. Upon search of the accused, a baggie that was filled with marijuana was located in his right pocket. The accused was removed from the rear of the police vehicle and escorted to the front of the vehicle to conduct a secondary search.

15As officers were searching the accused, a strong odour of alcohol came from his mouth and his eyes were glossy. The accused was advised that he was also being arrested for Impaired Driving. After the search, the accused was being escorted back to the rear of the police vehicle when he became combative, kicking at officers and screaming while trying to free his hands. He kicked one officer twice in the groin area and slammed his body into another officer’s arm, pinning it briefly in the door jam before officers were able to get the accused into the police cruiser.

16Once the accused was securely inside the police vehicle, he began kicking the left passenger door window multiple times. Once transport began, the accused yelled “I hope you kill me, because I will kill you first. And that is a threat. Die and die and die again.”

17It was determined that the accused was on the recognizance described above which prohibited him from operating or having care or control of a motor vehicle. The accused was subsequently charged with Breaching his Recognizance and Driving while Disqualified x3.

18The accused was transported back to YRP 2 District where he alternated between crying and yelling at officers during his booking. The smell of alcohol was more pungent at this time. The accused declined a lawyer at this time and kept stating, “I did it, I’m wrong”. The YRP Breath Technician attempted to speak to the accused, but his resistant behaviour escalated. As the Breath Technician began to read the refusal to provide a breath sample form, the accused repeatedly punched the door and screamed at the officer.

19The accused was charged with: Assaulting a Peace Officer x2, Utter Threats, Obstruct Justice, Dangerous Operation of a Motor Vehicle, Refuse to Provide a Breath Sample, Drive Disqualified x 3 and Breach of Recognizance. He was held for a show cause hearing.

The Bail Hearing

20At the bail hearing held on July 10, 2018, the accused was facing a reverse onus. Ms. Cooper presented herself as the proposed surety.

21In addition to acknowledging the facts above, she testified that the silver SUV the accused had been driving belonged to her. She testified that she parked her car after she got home from her mother’s place, and then she was taking items inside from her car. After she came out, she saw that her car was gone and believed it had been stolen. She looked down the street and saw the flashing lights and her car, then she approached and identified the accused to the police.

22After hearing from the surety, the Justice of the Peace recognized that there was a strong likelihood that the accused would reoffend, and acknowledged that there was a live concern for public safety. In deciding to release the accused, the Justice of the Peace explained:

So far the Court respects the learned Crown Attorney’s comment that luckily nobody has been hurt by his, I would say, irresponsible behaviour. The Court really hopes that this behaviour does not continue.

So this Court is, in considering the submissions the Court is very mindful of the concerns of the Crown; that is-he deserves one last chance to see if what has been said by the proposed surety (Ms. Cooper) that she is able to control him and that he himself wants to change, if that is really true.

So this Court is willing to consider giving him one last chance and though Madam Crown really clearly said there is really no release that can be fashioned that will prevent him from doing what he has been doing for, for a number of years since he was a youth, this Court is willing to give this person one chance in the hope he will reform himself.

Analysis

Standard of Review

23As the Supreme Court explained in R. v. St-Cloud, 2015 SCC 27, [2015] 2 SCR 328, ss. 520 and 521 of the Criminal Code do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. The decision to grant interim release involves a “delicate balancing” of the relevant circumstances. A reviewing judge must pay deference to the bail justice’s decision in terms of this balance. The exercise of the court’s power to intervene is only appropriate in three circumstances:

1. Where there is admissible new evidence;
2. Where the impugned decision contains an error of law; or
3. Where the decision is clearly inappropriate.

24A reviewing judge cannot simply substitute his or her decision for the decision of the Justice of the Peace. Moreover, a court should not reassess the weight attributed to the relevant factors. While a failure to consider relevant evidence or the applicable law will warrant intervention, if the factors have been considered, the balancing of factors is entitled to deference. Accordingly, it is only where the balance has rendered a result that is unreasonable (or clearly inappropriate) that a reviewing court should intervene. In St. Cloud the Supreme Court commented at paras. 118 and 121:

Thus, unless there is new evidence — the reviewing judge is not in a better position than the justice to evaluate whether the detention of the accused is necessary. In addition, the reviewing judge has, in relation to the justice, no special expertise with respect to release.

It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.

25In this case, the Crown argues that the Justice of the Peace’s decision is “clearly inappropriate.” In granting bail to Mr. Nash, the Justice of the Peace did not adequately take into account the risk imposed on the public. The Crown argues that the detention of the accused is necessary on the secondary grounds.

26The Crown also takes the position that the accused’s detention is necessary on the tertiary grounds given the strength of the Crown’s case, the circumstances of the offence, and the risk imposed on the public by the accused’s release.

Reverse Onus – 515(6)

27The charges in this case are subject to the reverse onus provisions in s. 515(6) of the Criminal Code. Given the nature of the charges, the onus is on the accused to show cause why he should not be detained. The provision constitutes a departure from the presumption of bail: R. v. Antic, [2017] 1 SCR 509, 2017 SCC 27 at para. 39.

28The nature of the charges identified in s. 515(6) give rise to concerns that further offences will be committed, or the accused will not attend court as required: As explained in R. v. Pearson, [1992] 3 SCR 665 in relation to drug offences, with commentary that equally applies in the context of breach offences:

The very specific characteristics of the offences subject to s. 515(6)(d) suggest that the special bail rules created by s. 515(6)(d) are necessary to create a bail system which will not be subverted by continuing criminal activity and by absconding accused. The offences subject to s. 515(6)(d) are undertaken in contexts in which criminal activity will tend to continue after arrest and bail, and they create the circumstances under which offenders are able to abscond rather than face trial. The special bail rules in s. 515(6)(d) combat these problems by requiring the accused to demonstrate that these problems will not arise. [Emphasis added.]

29The primary or secondary ground dangers are presumed to apply in the context of the 515(6) offences. The risks of reoffending and/or non-attendance are presumed to be in play. Accordingly, if bail is granted, the release must be fashioned with a view to ensuring the risks contemplated by the reverse onus provisions – whether they be primary and/or secondary - are adequately addressed.

30Even where the reverse onus provisions are in play, s. 515(10) of the Criminal Code permits for the detention of the accused only if the justice is satisfied that:

a) Detention is necessary to ensure attendance in court (primary ground);

b) Detention is necessary for the protection or safety of the public having regard to all the circumstances including the likelihood that the accused will, if released, commit a criminal offence (secondary ground);

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

i) the apparent strength of the prosecution’s case; ii) the gravity of the offence; iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Application to this Case

31Having reviewed the reasons of the Justice of the Peace, and the underlying factual record, I find that the Justice of the Peace failed to place adequate weight on the safety of the public in deciding to release the accused. He was more focussed on giving the accused “another chance” which has no place in the analysis. When dealing with the secondary grounds, particularly in the reverse onus context, the justice must consider the risk to the public created by releasing the accused, and whether or not detention is necessary in the face of that risk.

32Indeed, the fact that the accused was already on bail for impaired driving offences and awaiting sentencing at the time he committed further offences (again for impaired driving), seems to have been completely ignored in the analysis.

33The accused has a criminal record dating back to 1998 with more than 30 convictions. Many of the offences are for breach of recognizance, driving offences (Impaired), and fail to comply with probation. The accused has repeatedly demonstrated a clear disregard for court orders, and a propensity to commit further offences.

34Counsel for the accused takes the position that Ms. Cooper has agreed to lock her car keys in a safe to ensure that the accused does not drive. I hardly think this is a plan that can be implemented with success. Indeed, the accused stole Ms. Cooper’s vehicle from her driveway while she was unloading it. She is hardly in a position to manage the accused.

35Regardless, the issue ultimately turns on an assessment of whether or not the accused would comply with the bail. Regardless of how effective a surety is, any plan always begins and ends with the accused. My concern here is that the accused would not comply with the terms of the bail. This is largely based on his history of offending, his repeated failure to comply with court orders, and the circumstances of the offence for which he is currently charged.

36The nature of the offences themselves and the accused’s continued disregard for court orders presents a serious and ongoing risk to the public. The accused’s detention is necessary on the secondary grounds.

37In my view, the accused’s detention is also necessary to maintain confidence in the administration of justice. I have considered the four factors listed in s. 515(10)(c) namely: the apparent strength of the Crown’s case; the gravity of the offence; the circumstances surrounding the commission of the offence; the potential for a lengthy term of imprisonment on conviction.

38The defence argues that the tertiary grounds is not available given that the accused is not likely to receive a lengthy penitentiary sentence if convicted. I don’t accept that submission.

39The question is whether or not detention is necessary to maintain confidence in the administration of justice. As explained in St. Cloud, no crime is exempt from the possible application of s. 515(10)(c). The length of sentence is a consideration, no doubt. However, it is but one of the factors to be considered in assessing whether detention is warranted. As the Supreme Court explained at para. 69:

The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination.

40Furthermore, the gravity of the offences here should not be understated. As Justice MacKinnon stated in R. v. McVeigh at p. 150, “every drinking driver is a potential killer.” Given the circumstances of the offences here, in my view, the accused will be facing a meaningful term of incarceration. The Crown advises it will be seeking at least an upper reformatory sentence for the various offences.

41Given the strength of the Crown’s case, the serious nature of the offences involved, the circumstances surrounding the commission of the offences, the accused’s repeated contempt towards court orders, the fact that the accused is facing jail time upon conviction, and the serious risk imposed on the public by his release, I find the accused’s detention is also necessary on the tertiary ground. In my view, the public’s confidence in the administration of justice would be undermined if the accused were ordered released in these circumstances.

42I grant the Crown’s application, vacate the release order, and order the accused detained in custody. Counsel for the accused has advised that he will arrange for the accused to turn himself into custody upon receipt of this decision. The accused is to turn himself into custody no later than August 2, 2018, otherwise a warrant shall issue for his arrest.