Court File and Parties

Court File No.: 022/18BR Date: 20181012 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Dwayne Nelson, Applicant

Counsel: S. Hamel, for the Provincial Crown M. Lambert-Belanger, for the Federal Crown B. Dawkins, for the Applicant

Heard: September 20, 2018

Decision Re: Bail Review Application

Judge: Wilcox, J

Decision Re: Bail Review Application

Introduction and Background

1The accused applied under s. 520 for a review of the June 15, 2018 decision of Justice of the Peace P. Leclerc to deny him bail. The application was heard on September 20, 2018, followed by written submissions on the issue on whether there had been a material change in circumstances since the bail hearing.

2The accused faces two sets of charges. He was arrested on charges under both the Controlled Drugs and Substances Act and the Criminal Code in June, 2017. Bail was granted by Justice of the Peace L. Scully on June 28, 2017 on those charges. He was arrested again on subsequent charges under the CDSA and Criminal Code in October, 2017. His bail on the first set of charges was cancelled under s. 524. After a hearing, further bail was denied by JP Leclerc on June 15, 2018, as noted above.

3At the June 15, 2018, bail hearing, it was conceded that the accused was at the “highest rung” with reference to the ladder principal and that the court would not consider his release other than with stringent restrictions.

4The accused proposed two sureties at the June 15, 2018 bail hearing, Alain Seguin and Chanelle Lemire. The JP did not have confidence that Mr. Seguin knew the accused well enough to be a surety. The JP was positively impressed by Ms. Lemire and found the release plan to be reasonably good because of her. However, he denied bail on the secondary and tertiary grounds, mainly because of the accused’s record and his alleged actions after his release on the first bail order. He noted that the accused had essentially been on house arrest on bail on first set of charges, but had allegedly re-offended despite the stringent terms and surety. In addition, the accused had a substantial record of offences committed in various places across the country, including a number involving the disobeying of court orders. The JP found “some strength” to the outstanding allegations.

5At the outset of the bail review, the federal crown withdrew two counts of possession for the purpose of trafficking of methamphetamine from the first set of charges and one count of possession for the purpose of trafficking of fentanyl from the second set, noting that these are the most substantial of the federal (i.e. drug) charges. This obviously reduces the accused’s jeopardy.

6On the bail review the accused proposed that he be released on somewhat more restrictive conditions than JP Scully had imposed on June 28, 2017, with two new sureties. These were Geoff McKiernan and Chris Peddie. The crown opposed the application, relying on the transcript of the evidence heard and the exhibits received by JP Leclerc as well as the oral testimony of the sureties.

7Before dealing with any plan, the issue had to be addressed of whether there had been a material change in circumstances since bail was denied to justify considering bail again.

Legal Framework

8Subsection 520(7) set out the evidence that may be considered and the powers of a judge on a bail review:

(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.

9The relevant part of s. 515 is subsection 10:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) 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; and

(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.

10In R. v. Antic [1] the Supreme Court of Canada said that “the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing (para. 67):

(a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b) Section 11 (e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, “release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds”: Anoussis, at para. 23. This principle must be adhered to strictly.

(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

(f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.

(i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case.

(j) Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person’s behaviour or to punish an accused person.

(k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.

11In R. v. St-Cloud [2] the Supreme Court of Canada considered for the first time the scope of s. 520 of the Criminal Code regarding bail reviews. It found that a reviewing judge did not have an open ended discretion to vary an existing bail order. Rather, it provided a hybrid remedy with greater scope than on an appeal for varying the order, but falling short of a de novo proceeding (para. 92 and 94). Furthermore, the court in St-Cloud held that variations are appropriate in three situations:

1. If the Justice of the Peace erred in law,
2. If the impugned decision was clearly inappropriate, or
3. Where there is admissible new evidence showing a material and relevant change in the circumstances.

Material Change in Circumstances

12In the present case, there was no suggestion of the first and second of these. The focus was on whether there was a material change in circumstances.

13As for what constituted new evidence the court found the four criteria from Palmer v. the Queen [3] with necessary modifications to be relevant. The Palmer criteria were:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial . . . . (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

14The court went on to say that, “Given 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 like the sentence appeal, a reviewing judge must be flexible in applying these four criteria.” (para. 129.)

15The court expanded on each of the four criterion. For present purposes, the fourth is particularly relevant:

137Finally, 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.

16In The Law of Bail in Canada, the author, Trotter J, comments as follows on the discussions in St-Cloud of the fourth Palmer criterion:

1. Not all bail review applications that assert a material change in circumstances will engage the Court’s fresh evidence framework, at least not in the classic sense. Many claims of changed circumstances involve events in the criminal trial process, of which a reviewing judge may take judicial notice. Other changes will require that the applicant adduce evidence, the admissibility of which may be contested.

17Examples given included:

1. the withdrawal of outstanding charges or the discharge on certain counts at the preliminary inquiry;
2. a reduction in the strength of the crown’s case since the bail hearing;
3. the availability of disclosure that was not available at the original bail hearing or on a prior bail review;
4. new psychiatric or medical evidence;
5. the development of a new plan of release; and
6. the passage of a significant amount of time spent in pre-trial custody (in relation to the appropriate range of sentence).

18The accused argued that the Federal Crown’s withdrawal of the charges as noted above amounted to a material change in circumstances. There is some authority for this. For example, in R. v. Govenlock [4], where the applicant brought a second application for judicial interim release pending appeal, the Crown conceded that there had been a material change in circumstances because the applicant had faced new charges at the time of his first application, but those had been withdrawn before his second application. The court considered and dismissed the application on other grounds.

19In contrast, in R. v. Hill [5] where one of several drug charges was withdrawn following a detention order, the court on the bail review found that although there had been an alteration to the circumstances, it did not justify vacating that order.

20In the present case, I agree with the crown that the court’s decision would not have been different without the drug charges that were subsequently withdrawn. They did not appear to factor greatly in the JP’s decision.

The Proposed Bail Plan

21The applicant submitted that the development of a new bail plan constitutes a material change in circumstances. To the extent that the new plan substitutes new proposed sureties for the previous proposed sureties, that is somewhat controversial.

22The Law of Bail in Canada, 3ed, at page 8-17, quotes Hill J in R. v. Ferguson [6] at para. 17:

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.

23Similarly, in R. v. Raymer [7] Shaw J of the Ontario Superior Court of Justice said at paragraph 29:

Although on a bail review hearing, proposals for new sureties and new surety conditions do not generally constitute a material change in circumstances, (if the sureties were in fact available at the bail hearing) in this case the proposals tie in with the condition that Mr. Raymer attend residential treatment, which constitutes the material change in circumstances.

24However, in R. v. Baltovich [8] a decision of Rosenburg J of the Ontario Court of Appeal, material changes in circumstances found by the court included a change in proposed sureties among other changes in a release plan.

25So, looking at these cases, even if a change of sureties by itself is insufficient, a change of sureties as part of a new release plan can be a material change in circumstances.

26Also, in R. v. Whyte [9] the Court of Appeal commented regarding material changes in circumstances, as follows:

25Courts 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), 47 O.R. (3d) 761, [2000] O.J. No. 987 (C.A.)), or where the applicant offers a new legal argument and rearticulates existing arguments in a more comprehensive form (Daniels, supra).

26In 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.

27Looking at JP Leclerc’s reasons for refusing bail, the choice of sureties was a consideration.

28In keeping with the law’s emphasis on the liberty rights of accused persons, I am satisfied that the proposed new sureties in conjunction with some other proposed tightening of the plan constitutes a material change in circumstances.

The Proposed Sureties

29Turning to the proposed sureties, both are middle aged men and friends of the accused. They plan to live together with him in his residence. The accused’s spouse, who is also facing charges and with whom the accused has a non-communication order, would move from the accused’s to Mr. McKiernan’s house, which is nearby.

30The sureties’ time is flexible. Mr. Peddie is on ODSP for a heart problem, Mr. McKiernan works less than full time and chooses his hours. They propose to arrange things so someone would be with the accused at all times. Mr. Peddie spoke of the possibility of putting the accused to work on the Peddie family farm. They indicate awareness of the accused’s charges and criminal record and of the responsibilities of and financial risk to them as sureties. Neither has much in the way of financial resources so that even a modest amount of bail money would be significant to them.

31Mr. McKiernan is university educated as well as having training and experience in drug and alcohol addictions and social service work, because of which he found the accused’s situation interesting. He also claimed prior experience as a surety and to have pulled the bail on that occasion. He came across as a particularly strong personality who would not be influenced by the accused.

32Crown counsel acknowledged that the sureties were “reasonably good”. In addition to these proposed sureties, the applicant proposed various conditions which were in total more onerous than those that the accused had been placed on by JP Scully which JP Leclerc referred to as “stringent” and “essentially house arrest”.

Analysis

33In reviewing JP Leclerc’s reasons for not granting bail, it is apparent that, although he was impressed by one proposed surety, Ms. Lemire, because of whom the proposed plan was reasonably good in his estimation, the other surety, Mr. Seguin, was not as strong, Seguin came forward because Lemire was his girlfriend. He did not know the accused well, such that their relationship did not inspire confidence in the court with respect to his ability to supervise in terms of seeing that the accused attended court and shielding the administration of justice from interference. Setting that against the accused’s record and alleged commission of further offences while on bail, the JP was not satisfied that the accused had shown cause why he should be released with respect to the secondary and tertiary grounds.

34Looking at the plan that is proposed now in view of JP Leclerc’s reasoning, I find that it satisfies the concerns that he articulated. In coming to this conclusion, I find support in R. v. Whyte where the Ontario Court of Appeal stated:

27This application raises two competing principles: the liberty interest, and the need to maintain the integrity of the trial process. In balancing these two principles, I am satisfied that based on the unique factual situation of this case, a release order can be fashioned to satisfy the secondary ground considerations.

28Our society places a high value on the liberty of each individual, and the loss of that liberty should not be taken lightly. As noted by Iacobucci J. in dissent in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para 47:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

29The judicial interim release provisions of the Code strongly favor affording accused persons bail pending their trial: R.J. Sharpe and K. Roach, The Charter of Rights and Freedoms, 5th ed. (Toronto: Irwin Law, 2013), at p. 291. “[P]re-trial detention is extraordinary in our system of criminal justice”, R. v. Morales, [1992] 3 S.C.R. 711, at p. 728, Lamer C.J., and “to pretend that pre-sentence imprisonment does not occasion a severe deprivation and that it is not punitive, would result in the triumph of form over substance”: R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), at p. 658.

Disposition

35In conclusion, I find that the accused has shown cause. He shall be released on a Recognizance of Bail on the following terms:

1. There shall be two sureties, Geoff McKiernan and Chris Peddie.
2. The accused and both sureties each shall be responsible for $2,000.00 with no cash deposit.
3. The accused shall reside with the sureties at 87 Lakeshore Road N, New Liskeard, Ontario
4. The accused shall remain in his residence at all times, except:
   • for medical emergencies involving him or a member of his immediate family (spouse, child, parent, sibling).
   • for purposes of travelling directly to, from and while at court appearances, or meeting with his lawyer, or for purposes of complying with this or any other court Order.
   • unless he is in the presence of a surety.
5. The accused is not to contact or communicate directly or indirectly, by any physical, electronic or other means, with the following: Pattie Costello, Kelton Faulkner, Guy Aumont, Charles Faulkner or Tracey Faulkner, except:
   • in the presence of legal counsel for the purpose of preparing a defence.
6. The accused is not to attend at any Hydro One properties.
7. The accused is not to attend at 54 Empire Street, Latchford, Ontario.
8. The accused is not to possess
   • any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person), or
   • any imitation of above.
9. The accused is not to apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code.
10. The accused is not to possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in his name.
11. The accused is to report in person on a weekly basis to the nearest OPP detachment.
12. The accused shall present himself at the door of his residence, when asked to do so by police, to monitor compliance.

J. A. S. Wilcox Released: October 12, 2018

Citations

[1] 2017 SCC 27, [2017] 1 S.C.R. 509 [2] 2015 SCC 27 [3] , [1980] 1 S.C.R. 759 [4] [2015] A.J. No. 1016 [5] (1973) B.C.J. No. 736 [6] 2002 CarswellOnt. 1623 (S.C.J.) [7] 2015 ONSC 668, [2015] O.J. No. 594 [8] , 47 O.R. (3d) 761, para. 12, decision of Rosenburg J of the Ontario Court of Appeal [9] 2014 ONCA 268