R. v. Wheatley, 2018 ONSC 5633

Court File and Parties

Court File No.: CR-18-00001094 Date: 2018 09 24

Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. Tevin Wheatley

Before: D. E. Harris J.

Heard: September 18, 2018

Counsel: J. Prenger for the Crown Respondent H. Saini for Applicant Wheatley

Bail Review Endorsement

Introduction

1The applicant Tevin Wheatley applies under section 520 of the Criminal Code for a review of his detention ordered by Justice of the Peace Fisher-Grant on June 6, 2018. The review is premised on a material change in circumstances; namely, the presentation of a new and improved surety to supervise the applicant in combination with electronic monitoring.

2This is a close case. The applicant was charged in May 2017 with very serious human trafficking and living off the avails offences committed against a young woman. After a contested bail hearing, he was released on a strict house arrest $7,500 bail with his father and girlfriend as sureties.

3There is strong evidence to demonstrate that Wheatley breached his house arrest in May of this year. He was in the driver’s seat of a car registered to his girlfriend – one of his sureties – parked behind the Marigold Hotel in Brampton. Police officers, present in the vicinity because this is an area frequented by sex trade workers, spoke to Wheatley. He gave his true name and date of birth. When asked to turn off his vehicle, he suddenly accelerated and drove off at high speed. He almost ran over the officer’s foot. The car failed to stop at a stop sign and continued on in a reckless manner. He made good his escape. At the time, he was disqualified from driving.

4The police attended at his father’s residence where Wheatley was supposed to be residing under house arrest. He was not there and his father did not know where he was. Wheatley turned himself in a few days later.

5At the bail hearing below, the previous bail was revoked under section 524 of the Code. It was a reverse onus situation. Again, the accused tendered his father as a surety. The applicant’s stepmother was also proposed. After a lengthy bail hearing and a reserve of her decision, the Justice of the Peace detained the applicant on the secondary and tertiary grounds of bail.

6On the secondary ground, Her Worship considered that the applicant has recent convictions from 2017 for flight from a police officer and dangerous driving. He received a suspended sentence and was on probation at the time of these offences. He also has a drug offence on his record from 2017. Mr. Wheatley was also disqualified from driving by virtue of the dangerous driving conviction. He also has a conviction for careless driving. Her Worship stated that,

Given the recent related record, the allegations of breaching various court orders, I am satisfied that without a very strong plan of release there is a substantial likelihood that he would re-offend if released.

7Her Worship found that the father’s performance on the previous bail and his testimony at the bail hearing before her demonstrated that he was not a suitable surety. She also found the stepmother had credibility problems based on her testimony. In conclusion, Her Worship found that the plan and the sureties “in no way mitigate[d]” the secondary ground concerns.

8Detention on the tertiary ground was ordered for similar reasons, principally based on the sureties being inadequate.

The Basis for Review

9The Supreme Court in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 139, speaking through the Chief Justice set out three grounds for review of an originating bail decision:

1. New evidence leading to a material change in circumstances;
2. An error of law committed by the bail justice; and
3. A “clearly inappropriate” decision.

10The applicant relies exclusively on a material change of circumstances. A friend of the applicant’s and his family, Minister Brenda Clarke, has come forward as a new surety, supporting a new plan. The plan involves the applicant living with her in Barrie with the support of tight GPS electronic monitoring.

11Minister Clarke filed an affidavit upon this application. Counsel for the applicant resisted Ms. Prenger’s request to cross-examine on the affidavit. Although I have a discretion to disallow cross-examination on a new affidavit filed on a bail review, it would be a rare case that a blanket prohibition would be appropriate. If in the cross-examination, the Crown was prolix and appeared to be on a fishing expedition, curtailment of cross-examination might be appropriate. But to not allow any cross-examination would be exceptional. In light of the importance of sureties in serious cases, the Crown should generally be entitled to test them on the witness stand.

12The applicant relied upon Justice De Luca’s excellent and helpful judgment in R. v. Tunney, 2018 ONSC 961, [2018] O.J. No. 767. In that case, Justice De Luca, a judge with long experience in criminal law, was rightly critical of delays caused by cumbersome surety approval during bail hearings. This concern has nothing to do with this case, however. Justice De Luca said in reference to release at bail hearings:

41 In some jurisdictions, the surety approval process has historically taken place in court as part of the bail hearing. At times, this process works appropriately, particularly in serious cases where an exceptional surety may make the difference between detention and release. At other times, this approach has not only caused unnecessary delays and inconvenience, but it has also resulted in unfair practices. [also see para. 49]

13The entire issue in the bail hearing below and upon this review, revolves around the suitability of the surety proffered on the applicant’s behalf. In light of that, it would have been procedural error to prohibit cross-examination of Minister Brenda Clarke.

14Not allowing cross-examination would have worked greatly to the applicant’s disadvantage as well. Once Minister Clarke testified, her sincerity, honesty and suitability as a surety were clear to all. The Crown conceded it. In retrospect, if defence counsel had succeeded with his argument to immunize Minister Clarke from cross-examination, she would never have testified and have been seen by the Crown and I. This would have had a profound and perhaps decisive impact on the bail review.

15Does the new surety supplemented by the GPS monitoring constitute a material change in circumstances within St. Cloud (see the discussion at paras. 122-138)? Chief Justice Wagner equated the admission of new evidence on a bail review with the test for the admission of fresh evidence upon appeal, citing two leading cases in that area-- Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775 and R. v. Warsing, [1998] 3 S.C.R. 579, at para. 50. He held that the four criteria from those cases ought to be modified somewhat to fit the bail context.

16There cannot be too much controversy about the four Palmer criteria here. Due diligence is to protect finality of the bail process. The explanation for not putting Minister Clarke forward is that she was not aware of the plight of the applicant and so did not offer herself up as a surety. While this is not the most persuasive reason, nor do I think there is manipulation afoot.

17I keep in mind what Justice Doherty stated as a trial judge many years ago. He said that the bail review provisions,

… favour flexibility and re-evaluation of the accused's bail status over finality of any particular order made affecting that status." R. v. Saracina (1989), 47 C.C.C. (3d) 185 (Ont.C.A.) at p.187.

18In terms of the second criteria, the new evidence bears on a relevant issue. The third issue of credibility is also met. With respect to the fourth criteria, the Chief Justice said in St. Cloud:

137 Finally, the fourth Palmer criterion should be modified as follows: the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c) Cr. C. The new evidence must therefore be significant.

19In cases predating St. Cloud, there was some skepticism voiced concerning whether new sureties could constitute a material change in circumstances. Justice Hill wrote the most frequently quoted comment when a change in sureties is proposed as a material change at the bail review stage:

17 … [with respect to] the advancement of fresh prospective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention. For example, in Regina v. Baltovich (2000), 131 O.A.C. 29 (C.A.) at 33, Rosenberg J.A. considered the post-detention changes in surety availability to be significant enough to constitute a material change.

R. v. Ferguson [2002] O.J. 1969 (S.C.), also see R. v. Tsekouras 2012 ONSC 5137, [2012] O.J. No. 676 at para. 48, R. v. Rootenberg [2017] O.J. No. 5324 (S.C.), at pars. 10-12

20Although somewhat skeptical, Justice Hill recognized that if the new sureties constitute a fundamental shift with respect to the predicates of the original bail detention, then a material change has occurred. This presaged the conclusion reached by the Supreme Court in St. Cloud.

21The lack of suitable sureties was at the heart of Her Worship’s reasons for the detention order below. The applicant’s father had been irretrievably tainted by his neglect on the first bail. A finding of fact was made that the stepmother was incredible as a witness and would not be a good surety. This left Her Worship with no one to act as the applicant’s “jailer outside of jail.”

22With the advent of Minister Clarke, supplemented by the GPS monitoring, this is no longer the case. The new evidence is admissible and a material change in circumstance has occurred. I must consider bail anew per St. Cloud:

138 If the new evidence meets the four criteria for admissibility, the reviewing judge is au-thorized to repeat the analysis under s. 515(10)(c) Cr. C. [the tertiary ground was the issue in that appeal] as if he or she were the initial decision-maker.

23In looking at both grounds for detention, I take the same general approach as the Justice of the Peace below. Does the new surety supervision and the plan, including the new inclusion of GPS monitoring, sufficiently manage and reduce the risk of re-offence? Under the tertiary ground, the question is whether improvements put forward alter the views of an informed reasonable member of the public and their confidence in the administration of justice?

24I believe the answer to both questions is yes. All agree that Minister Clarke is reliable and conscientious. She will not be able to be with the applicant 24\7 but we can be assured that she will keep a tight rein on the applicant even when he is not with her.

25The electronic monitoring proposed would be conducted by Recovery Science Corporation. Director of Operations, Stephen Tan, testified before me. There was some concern that because the applicant will reside in Barrie but the criminal charges are out of Peel, the police response to a breach might be hindered. However, I was assured that this will not be a problem. Both police forces will be immediately notified in the case of a breach.

26The proposal is essentially a home arrest bail with the usual exceptions if he is with his surety or at or coming to or from school. He plans to take courses in plumbing at Georgian College in Barrie. There will be electronic monitoring to ensure compliance with itineraries he must file with Recovery Science. They will be constantly following his movements and will be able to detect deviations from the submitted itineraries.

27There is now quite a volume of case law in Ontario considering the efficacy of electronic monitoring in relation to the three grounds for bail: R. v. Palijan, [2012] O.J. No. 6549 (Ont. S.C.), at paras. 24-27, R. v. Ma, 2015 ONSC 7709, [2015] O.J. No. 6684, at paras. 54-57, R. v. Hammoe, 2016 ONSC 1790, [2016] O.J. No. 1475, at para. 60-63, United States v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380 (Ont. S.C.J.), at para. 11, [R. v. Bahman, 2007 CarswellOnt 8246 (Ont. S.C.J.), 2007), at para. 23, R. v. Obi, 2015 ONSC 4444, at para. 36, R. v. Lami, 2016 CarswellOnt 20185, 2016 ONSC 8022, at paras. 9-10, R. v. Stojanovski, 2017 CarswellOnt 19649, 2017 ONSC 7194, at paras. 30-35, R. v. Lalonde, 2017 ONSC 1882, at para. 40, R. v. Larocque-Laplante, 2017 CarswellOnt 1860, 2017 ONSC 1038, at paras. 36-37.

28The view universally expressed in the cases is that electronic monitoring is of minimal utility because it is fulfills no preventative function, merely enabling the reporting of a transgression after the fact. It may tell the police where the accused is but it will not convey information about what he is doing. Particularly in the case of the primary ground, this reduces the efficacy of electronic monitoring. The point is also made that electronic monitoring is only as good as the surety. Lastly, there are some concerns in the cases about whether the technology has advanced far enough to be trustworthy. Ms. Prenger for the Crown did not argue that the technology was inadequate. I should also say that Mr. Tan appeared professional and objective when he testified and no technological impediments were raised.

29Although I largely agree with the conclusions in the authorities above, I would qualify them somewhat in the circumstances of this case. First, it is suggested here that Recovery Science will directly contact the police in both jurisdictions in the case of a deviation from the itineraries. Although of course the surety is still vital to the plan, enforcement is not solely up to surety. The police will receive early warning directly.

30Second, the cases give short shrift to the potential deterrent effect upon a bailee created by electronic monitoring. This makes sense in the context of the primary ground. It may not be as persuasive in the context of the secondary and tertiary grounds.

31Specific deterrence has always been a mainstay of sentencing principles. It is often said that the most effective specific deterrence is achieved by a swift apprehension of the accused and a prosecution with a high certainty of conviction: The Report of the Canadian Sentencing Commission, 1987 (The Archambault Report) at pp. 136-37, approved in R. v. J.W. (Wismayer), [1997] O.J. No. 1380, 33 O.R. (3d) 225 (C.A.), at para. 47. This same philosophy underlies the potential deterrent effect of electronic monitoring. Mr. Wheatley is aware that he will be tracked by GPS and that his movements will be required to conform to the plans filed. He knows that if he steps out of line, there will be a digital record documenting it. The electronic monitoring will produce evidence which can then be used to aid in his prosecution for breach of bail together with any substantive offences committed. The admissibility of this evidence is explicitly acknowledged in the recognizance conditions proposed by counsel.

32Of course, specific deterrence does not always work. It would be naïve to believe otherwise. In the full spectrum of criminal offences, there are many instances where the accused is acting under some unknown compulsion and no threat of severe sanctions would make any difference. Criminal conduct is often irrational and dumbfounding. But it is also unrealistic to think that at least with a subset of persons and offences, specific deterrence cannot be effective. Our sentencing law, after all, presumes this to be the case.

33In this case, the public safety secondary ground is primarily concerned with the commission of correlative offences. The human trafficking derived offences require planning and often direct contact with the victim. I believe the opportunity to commit similar offences is greatly reduced by the plan. Mr. Wheatley will be for the most part restricted to the Barrie area, some distance from the alleged human trafficking offences. His access to a cell phone and the internet will be restricted. He will know that his movements will be monitored and, as written up directly into his recognizance, will be admissible in court.

34The same is true with respect to the driving offences. While electronic monitoring is no guarantee, Mr. Wheatley will know that by reason of the bracelet he will be wearing, his swift apprehension and successful prosecution will be virtually assured. The dangerous driving allegations involved brazen and impetuous behaviour, raising the concern that he does not care or is not fully aware of the effects of criminal prosecution on his future. Nonetheless, I believe that the plan including the electronic monitoring, reduces the risk substantially.

35In the end, based on these considerations, I find the secondary ground has been discharged by the applicant. I will now move on to the tertiary ground.

36The tertiary ground reads:

Detention is justified if it 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.

37A reasonable, informed member of the public would know that the cardinal rule is that an accused ought to be released on bail: St. Cloud at para. 70. With respect to the enumerated circumstances in i-iv, the strength of the case on the dangerous driving offences is strong. The offences are serious but not overwhelming so. I question whether a conviction on these offences would lead to a “lengthy term of imprisonment” as that phrase is used in subsection (iv) of the provision.

38With respect to the human trafficking offences, these are very serious offences which would no doubt result upon conviction in a lengthy term of imprisonment. There is a mandatory minimum of four years, although the constitutional validity of this provision has yet to be definitively passed on by the courts.

39It is difficult to gauge the strength of the case based on the record. The Justice of the Peace who heard the original bail hearing released the accused, although of course it was the Crown’s onus then. It cannot be said that the evidence is “overwhelming.” Thus the general rule of detention where the evidence is overwhelming, the offence is very serious and the victim is vulnerable (see the Chief Justice’s formulation in St. Cloud at para. 88) is inapplicable.

40I would also incorporate into this ground--aside from the enumerated grounds in the statute--the public’s knowledge of the plan, the strength of the surety and the specifics of the electronic monitoring. Nothing in St. Cloud seems to preclude this (see para. 71). The language of the tertiary ground is all inclusive, directing that the public’s confidence in the administration of justice should be adjudged “having regard to all the circumstances.” It has been held that the tertiary ground encompasses the strength contemplation of the release plan: R. v. A.B., [2006] O.J. No. 394 (S.C.), 204 C.C.C. (3d) 490, at para. 32.

41For these reasons, I find that the tertiary ground is discharged. The parties have agreed on most of the terms of release although there is some dispute with respect to the cell phone and internet restrictions. I agree with the Crown’s submissions in this regard. I have also made some minor modifications to the terms.

42In the result, there will be a release on a recognizance in the amount of $5,000 no deposit, naming Brenda Clarke as the surety and with the following conditions:

1. No direct, nor indirect, contact with Ms. Karley Kodl-DeShane, except as required during court proceedings.
2. No attendance within 100 metres of any place where Ms. Karley Kodl-DeShane is known to be, except as required during court proceedings.
3. No direct, nor indirect, contact with Andre DAVIS, or Tashane BLAIR, or Jasmine METATAWABIN, unless: a. In the presence of legal counsel, or through legal counsel, for the purpose of preparing a defence on these related charges.
4. Not to possess any weapon(s), as defined in the Criminal Code.
5. Not to apply for an authorization, licence, or registration certificate, for any kind of weapon(s), including a firearm, as defined by the Criminal Code.
6. Not to operate a motor vehicle or occupy the seat ordinarily used by the driver of a motor vehicle.
7. Not to be in physical possession of keys for a motor vehicle.
8. Not to possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act), except with a valid prescription in your name.
9. Be subject to GPS Monitoring by Recovery Science Corporation (RSC), which shall include, prior to release, and continuing on Mr. Wheatley’s release: a. Entering into the RSC’s “Participant Agreement” for a GPS ankle bracelet and complying with the Agreement’s terms; and b. Wearing a GPS bracelet at all times; and c. Permitting RSC to install supplementary equipment in Mr. Wheatley’s place of residence, or as required by the agreement, and to inspect, replace and maintain equipment as RSC deems necessary to have the GPS monitoring functioning properly, in accordance with RSC standards; and d. Complying with RSC leave-notifications and battery-changing requirements; and e. Cooperating fully with RSC staff, and while f. Understanding that RSC will share data related to Mr. Wheatley’s RSC data, and give access to his RSC data to the officer-in charge at Peel Regional Police, being Constable McBride (badge##2658), or her designate, or any other police service investigating Mr. Wheatley’s activities while on this release; and while g. Understanding that Mr. Wheatley’s RSC data may also be shared with the Crown Attorney, Probation Office, a Justice of any Court - when requested, or admitted in a criminal court proceeding; and h. Notwithstanding any Order terminating or varying these terms, Mr. Wheatley shall continue to abide by these said terms with RSC until RSC confirms with Mr. Wheatley that RSC has received notice of the termination or variation that has been put in place, by either the Crown, and/or Police, and/or Court staff.
10. Remain and reside within the residence of his surety Ms. Brenda Clarke, located at 150 Esther Drive, Barrie, Ontario, L4N 9T1, except for when: a. He is in the direct and immediate supervision of his surety, or b. Travelling directly to and/or from emergency medical care for himself or his surety; or c. Travelling directly to, at, and/or from school at Georgian College in Barrie by one-route, or a second alternative route, where both of the two routes are pre-approved and documented with Recovery Science as a “passive zone” during the specified hours of his classes. With this, his class schedule at Georgian College will be submitted to Recovery Science in advance, and Mr. Wheatley may only travel during the time of these pre-scheduled class(es)- or an hour before and/or an hour after each pre-scheduled class - in case school-meetings or extra-time in the school environment is required for his education. RSC will alert the officer-in charge Cst McBride (badge##2658) by email (and/or any designate police officer she requests) if Mr. Wheatley deviates from these approved route(s) and/or schedule as soon as practicable if there is any breach of this term. Further, RSC may change the approved route(s) to an “active zone” if this assists RSC in monitoring this activity effectively. d. Further possible adjustments to Mr. Wheatley’s approved travelling routes and school schedule (at Georgian College in Barrie only) falls within the discretion of RSC to approve, with any such approvals being made by RSC in advance of the event(s) or changes. RSC may consult with the officer-in charge Constable McBride (badge##2658) and/or with an Assistant Crown Attorney in the Peel Crown’s office about any proposed adjustment(s) if RSC is unsure of how to use their discretion, but RSC is not required to do so on this point.
11. Abide by the rules and discipline of his surety’s home.
12. Only possess a phone that is unable of accessing the internet in any manner, including WiFi, which would be a flip-phone model. Phone calls and text-messages are permitted with anyone but the alleged victim Ms. Karley Kodl-DeShane.
13. Not to possess any device that is capable of accessing the internet, unless a. While using that device during a class at Georgian College in Barrie, or b. While using that device when his surety is physically present and is directly supervising the internet-activity, and while c. Internet-activity cannot be directly or indirectly related to the sex-trade industry at any time.
14. Not to attend at any hotel or motel, unless his surety is physically present with him and is directly supervising him.

D.E. Harris J.