Court File and Parties

COURT FILE NO.: 175/18 DATE: 20181121 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Shane Simmers Defendant

COUNSEL: M. Czerkawski, for the Crown D. Ives, for the Federal Crown G. Snow, for the Defendant

HEARD: November 1, 2018

MCARTHUR J.

Introduction

[1] Shane Simmers is charged with robbery, disguise with intent and dangerous driving, all from events on May 13, 2017 where he is alleged to have robbed a Shoppers Drug Mart while his face was masked and then drove away in a vehicle and was involved in a high-speed chase with police.

[2] He was released on these charges and granted bail on July 13, 2017 with a recognizance in the amount of $ 15,000 with two sureties; one being his mother, Maria Simmers to the extent of $14,000 and a brother for $1,000.

[3] On March 1, 2018, he was further charged with possession of a prohibited substance for the purpose of trafficking (x6) and failing to comply with conditions of the earlier judicial release. His prior bail was revoked pursuant to s. 524 of the Criminal Code. In the circumstances, the defendant had the onus to justify his release on bail.

[4] On April 4, 2018, a Justice of the Peace denied bail after a hearing. He has remained in custody since then.

[5] A preliminary inquiry was held on the robbery charge, disguise and dangerous driving charges on May 30, 2018.

[6] The trial on these matters is scheduled to proceed over two weeks commencing April 8, 2019. A pretrial application as to Charter issues is set for December 17, 2018.

[7] The defendant requests a review of bail, asks that the detention order be vacated and he be released on strict bail terms to include electronic GPS monitoring.

The Legal Issues

[8] The legal issues are whether the Justice of the Peace erred and whether new evidence exists of a material relevant change in the circumstances of the case.

[9] In either situation, should bail be reconsidered, the decision comes down to whether the defendant be released on bail or the application be dismissed.

Factual Background

[10] The May 13, 2017 robbery involved two masked persons who entered the Shoppers Drug Mart on Oxford Street at approximately 11:48 p.m. Michael Bouzied went to the pharmacy counter and demanded fentanyl patches. Mr. Simmers is alleged to be the look out. The pharmacist opened the safe after being threatened to be shot by Mr. Bouzied who then grabbed several boxes of pharmaceuticals amongst which contained a GPS tracking device.

[11] Police were called and GPS tracking assisted police in locating the vehicle to which the police responded within minutes of the robbery. The suspect vehicle took off and eventually travelled at excessive speeds in the north area of London and along Hyde Park Road. The vehicle was eventually involved in an accident, flipped over and came to a stop upside-down in a residential driveway. The vehicle was substantially damaged, inoperative and a write-off. Mr. Bouzied was injured and groaning in the vehicle. The vehicle was owned by Mr. Simmer’s mother. She testified she did not know how her vehicle was removed from her home nor did she give anyone permission to do so.

[12] A canine unit attended the scene of the accident and Mr. Simmers was located within about 15 to 20 minutes hiding in a bushed area lying face down. Mr. Simmons appears to have been bitten by the dog in the course of the canine involvement. Mr. Simmers was dragged out of the bushes and arrested.

[13] A substantial quantity of stolen pharmaceutical narcotics were recovered from the vehicle. Other stolen narcotics were found along the route that Mr. Simmers took from the vehicle to the bushes where he was located. Later examination revealed two fentanyl patches on Mr. Simmer’s stomach as well as other papers in the vehicle associated with Mr. Simmers.

[14] On March 1, 2018, Mr. Simmers was on release from the initial charges on conditions that he be in his residence between 9:00 p.m. and 7:00 a.m. except when travelling to and from meeting with counsel and unless in the company of a surety. He was found at the residence at 61 Bow Street in London at 12:45 p.m. and was in possession of significant drug paraphernalia. There were also several oxy 80 tablets, bundles of cash, fentanyl and containers to hide the drugs within the premises. Mr. Simmers was not in the company of his surety and was outside the times of his residence curfew.

[15] He was also found in possession of Canadian currency, a debt book and a weigh scale. He was later searched and had a bag that contained five other plastic zip lock bags; one marked hydromorph contin (18 milligrams); another marked hydomorph contin (6 milligrams), another bag with crystal meth; another with crack cocaine – collectively valued at approximately $4,000 to $4,500.

Decision of the Justice of the Peace

[16] The defence submitted that the Justice of the Peace erred in making a finding only that the surety was not sufficient but did not find the defendant releasable and that the Justice conflated matters such that she confused the issue of releasability with surety suitability and effectively created a reverse onus situation. I disagree.

[17] The defendant was in a reverse onus situation in this case. The Justice of the Peace in a 17 page decision considered all of the necessary factors and particularly took into account the plan with the then proposed surety and addressed these within the context and obvious concerns of the defendant’s lengthy and serious criminal history, the serious drug addiction and drug subculture. She determined the defendant had been engaged in an ongoing criminal lifestyle and, after weighing the necessary factors including his past release that he had violated, that secondary ground concerns could not be met with the proposed plan and surety.

[18] The Justice also considered the tertiary ground separately along with the four factors and weighed and considered these properly to find that a denial of bail was necessary to maintain confidence in the administration of justice in the circumstances.

Crown’s Position

[19] Both federal and provincial Crowns submit the defendant must meet the threshold of new evidence and, even if met, such evidence must amount to a material relevant change in circumstances.

[20] This is a reverse onus position in view of the additional drug charges and that fact the defendant was already on bail terms that were violated. The defendant must in any event demonstrate on the balance of probabilities that his detention is not justified and that he should be released.

[21] Mr. Bouzied received, a sentence of 44 months with 120 days of pretrial custody on the robbery charge after an early guilty plea. Not surprisingly, the defendant here is liable for a substantial penitentiary term if convicted of the robbery offence alone.

[22] The Crowns submits the application for review be dismissed.

Defence Position

[23] The defendant submits that a material change has occurred with the defendant’s mother coming forward to pledge substantially more money, with the defendant undertaking drug treatment while in custody and with increased supervision in living at his mother’s home and the availability of electronic monitoring.

[24] The defendant submits he has discharged the onus, has demonstrated a suitable release plan and ought to be released.

Analysis and Commentary

The Law

[25] This review process is pursuant to s. 520 of the Criminal Code of Canada. Pursuant to s.520(7) the court can consider the transcript of the earlier decision made in this case by the Justice of the Peace, the exhibits filed and such additional evidence as the accused or Crown may lead. The judge then is statutorily required to either dismiss the application or, if the accused shows cause that his detention is not justified, allow the application, vacate the order and make any other order as is warranted for the release in accordance with s. 515 of the Criminal Code of Canada.

[26] This section does not confer an open-ended discretion on the reviewing judge to vary the initial decision. This process is also not a de novo proceeding but rather, a hybrid.

[27] It is appropriate to exercise the power to review in three situations:

1. Where the new admissible evidence shows a material relevant change in the circumstances of the case;
2. Where the prior decision involves an error of law;
3. Where the decision is clearly inappropriate.

[28] I am also aware of the decision of R. v. Antic, 2017 SCC 27, and its observation on the overuse of sureties and the overemphasis on risk aversion and the implications that surety overuse arose from. That issue does not arise here.

The Issues:

[29] The first issues is whether the evidence of GPS monitoring in combination with other circumstances amounts to new evidence and shows a material relevant change in this case?

GPS Monitoring

[30] The defendant provided evidence of the availability of radio-frequency and GPS monitoring as well as a new surety being the defendant’s mother.

[31] The materials submitted involve a detailed outline of the compliance monitoring program developed and made available by Recovery Science Corporation. In addition, Mr. Steven Tam, a founding partner and director of operations of the corporation, also testified. The monitoring efforts of this company started in 2010. In view of the advancements and changes in technology, the company currently monitors 105 individuals on bail. The technological advances are impressive and are proving effective.

[32] Monitoring operates through location acquisition of a signal from a device affixed to an ankle bracelet that is transmitted to a satellite. This monitoring can generally occur on a minute-by-minute basis. Inclusion and exclusion zones can be determined and likewise monitored. The default monitoring period is generally set for every 10 minutes. If the transmitter travels outside of inclusion zones or into an exclusion zone, an alert can be generated by the system.

[33] The monitoring company then determines if the alert is a violation or an exception based on the presence or absence of a surety authorization that is compared to a known voice sample of the surety. If a violation has occurred, this is reported forthwith to the police, usually within 5 minutes for high risk cases and generally within 15 minutes otherwise.

[34] The system can also monitor where the transmitter is every 15 seconds in order to locate the whereabouts of an individual.

[35] The company has now monitored approximately 500 cases including 60-70 of which are requested by defence counsel. The company has reported 45 violations of which bail was revoked in 35 cases and the remaining 10 cases involved the re-release of the individuals.

[36] The monitoring system is not fool-proof but is proving to be an effective risk management tool on a 24 hours / 7 days a week basis.

[37] The system also provides past and ongoing location reports that can be received or reviewed by third parties such as an officer-in-charge, probation officer, etc.

[38] The current cost is a monthly fee of $540 which is borne by the defendant. Continued payment is an obligation of the defendant with maintenance of the monitoring system a term of release. If payment is not made as required, the police officials are advised.

Criteria for new evidence

[39] In R. v. St. Cloud, 2015 SCC 27, the court commented that the interests of justice would be undermined if a narrow view of new evidence was adopted given the realities of the expeditious nature of bail proceedings. The court adopted the following criteria from R. v. Palmer, [1980] 1 S.C.R. 759 with necessary modifications to determine what constitutes new evidence:

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

[40] The monitoring evidence here is credible. Such monitoring has been proven to be reliable and effective. This system is becoming more familiar and more frequently adopted and certainly allows more options from custody in appropriate cases.

[41] In relation to the evidence of the surety proposed in this case, such evidence can be expected to affect the result particularly in combination with GPS monitoring.

[42] As to due diligence, I am mindful that technological advances are relatively novel and continue to change significantly. This monitoring system, although not having widespread adoption, obviously continues to grow and be considered in more areas. In this case defence counsel’s efforts to propose this system is inextricably linked with the surety proposed and ought not to reflect any lack of diligence. All conduct must be seen and be consistent with the nature of bail proceedings generally and practical realities as has been recognized by courts before and particularly since R. v. St. Cloud, supra.

[43] The threshold of new evidence is met in this case.

Material relevant change

[44] I am mindful of the holding expressed by Justice Hill in R. v. Ferguson paragraph 14 that “The material change in circumstances paradigm is not to be so narrowly applied so as to foreclose any periodic review of the detention status”. In that case, he applied this in a situation involving new sureties for larger amounts. It has long been recognized that the bail review provisions should “favour flexibility and re-evaluation of the accused’s bail over finality of any particular order made affecting the status”. See R. v. Saracina (1989), 47 C.C.C. (3d) 185 at para. 187 (Ontario. C.A.).

[45] In this case, context is important.

[46] Given the additional evidential features, the GPS evidence becomes materially relevant since it is capable of significantly addressing risk factors and potential release issues which are central considerations involving both secondary and tertiary grounds.

[47] Given these findings, I am required to review bail and either dismiss the application or, if the accused shows cause, allow the application, vacate the order and make any other order as is warranted for the release.

Bail Review Analysis

Proposed release plan

[48] The defendant’s proposed release plan now is to have his mother as surety in the amount of $25,000, he reside at his mother’s residence, be GPS monitored, subject to random searches, attend drug counselling.

[49] His prior proposal was to have a 37 year old female friend as a surety in the amount of $ 2,000 to $3,000, and to reside with the surety at her residence and with whom had little knowledge of the defendant’s drug addiction treatment plan.

[50] The defendant has a criminal record which is both serious and includes offences for non-compliance of court orders. The defendant has a significant and long standing drug addiction. His drug addiction and associations with others in that culture played a significant role in both set of offences. The drugs involved in this case are of the extremely serious nature and include trafficking in them.

[51] The defendant’s mother was his surety for the first set of charges that involve robbery and dangerous driving. It was her vehicle that was damaged beyond repair in that incident. It is not surprising that she was no longer prepared to continue as a surety at that time. She candidly admitted that she had had it “up to here” with the defendant’s “shenanigans”. The defendant had successfully hidden his drug use, possession, problems and associations from her.

[52] The defendant’s mother was prepared to come forward now to act as a surety. She had been a surety before for the defendant. She indicated what had changed was that, unlike before where the defendant resided at her father’s residence where she saw him daily, the defendant would now be supervised 24/7 by her along with GPS monitoring. She proposed that the defendant would reside at her and her husband’s home.

[53] Overall, the defendant’s mother impressed me as sensible, articulate and even-handed. She certainly is a person who would follow through on her obligations and duties and would not tolerate any misconduct by the defendant.

[54] The defendant also testified that during his past many weeks in detention pending this review that he was now taking suboxone, a medication used to treat opioid addictions, had been attending Alcoholics Anonymous (AA) and counselling meetings and other ceremonial activities available at the detention center, was feeling much better and planned to follow up with addiction services if released. He was aware of and prepared to be GPS monitored.

[55] The defendant candidly admitted that he had breached past recognizances and did not take his past releases seriously. He acknowledge that he had been able to comply at times on bail and for other substantial parole periods without incident.

Circumstances of the offences

[56] The circumstances of these offences are indeed serious and have serious consequences that extend to the public. The scourge of drug addictions have been amplified with drugs like fentanyl, crystal meth amongst other drugs. The seriousness has escalated over the last two to three years in particular with the increasing prevalence of fentanyl. None of our communities are immune. The effects particularly of fentanyl have proven fatal to many lives with its adverse effects extending to family members directly as well as to other members of the public.

[57] The circumstances as to the nature of drugs, their substantial potency and dangers have increased since bail provision were considered in R. v. Morales, [1992] 3 S.C.R. 711. That case upheld the reverse onus provisions and observed that the small-fry drug trafficker should ordinarily not have difficulty discharging the onus to justify release on bail.

[58] I am mindful that given the strong case against the defendant, particularly on the robbery charge alone, the defendant would likely receive a substantial jail sentence.

Secondary and Tertiary Grounds

[59] As mentioned earlier, the accused has the onus to establish on the balance of probabilities that his detention is not justified in order to be released. Here, the issues are whether (a) the defendant has proven that his detention is not necessary for the protection or safety of the public including the substantial likelihood that the defendant will, if released, commit a criminal offence or interfere with the administration of justice; and/or (b) the defendant has shown that his detention is not necessary to maintain confidence in the administration of justice having regard to all of the circumstances including the apparent strength of the prosecution case, the gravity of the offences, the circumstances around the commission of the offences and the potential of a lengthy term of imprisonment on conviction.

[60] The Supreme Court of Canada’s direction remains clear and consistent: bail is denied 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.

[61] Detention is justified when it is necessary for public safety. It is well-recognized that the bail system does not function properly if an accused interferes with the administration of justice or commits crimes while on bail. The Justice of the Peace in this case properly denied bail in the circumstances before her.

Review of various facts and legal standard

[62] In this case, the effects of the defendant’s drug addiction manifested themselves in the extreme on more than one occasion including both set of charges now before the court. The defendant’s drug addiction has involved a significant period of his life otherwise.

[63] The first set of charges involved the unauthorized use of the defendant’s mother’s vehicle, association with others involving drugs, a robbery involving drugs, a high-speed motor vehicle pursuit, a serious vehicle accident, some injury to the other vehicle’s occupant and substantial damages to property.

[64] The second set of charges demonstrates a consistent commitment of the defendant to drugs, the drug culture and involved more serious prohibited drugs as well as significant features of trafficking.

[65] Both set of charges involve substantial risk-taking by the defendant that put members of the public at real and imminent risk if released. Whether the defendant simply regarded release on bail as a joke as he admitted, he obviously has become increasingly desperate in his use and pursuit of drugs. His addiction and drug associations have reached the point that rational restraint was easily overcome. His actions have put at serious risk both the protection and safety of the public in multiple ways.

[66] The defendant’s efforts in detention to deal with his drug addiction are admirable and encouraging. I am likewise impressed with the potential for GPS monitoring in bail cases. These collectively are material changes, as I have found.

[67] The real issue is whether the combined efforts of the defendant and the features of the plan adequately address the substantial likelihood of the defendant committing further criminal offences. The companion issue is also whether the substantial public protection and safety concerns can be addressed in this case.

[68] In view of the two sets of offences and the overall circumstances, the defendant’s significant past criminal record, past numerous violations of court orders, I am not satisfied as to the depth of the defendant’s insight as to the seriousness of his addiction, nor the checks to his criminal associations and lifestyle. He has testified that his efforts have included abstinence and other medication. These are all good first steps toward some recovery.

[69] The defendant’s recent efforts, however, are not enough to overcome the remaining collective serious concerns including his past and ongoing drug associations and the relapses that will most likely arise even with his current release plan, proposed surety and GPS monitoring. One need only look to the serious and escalating nature of the underlying incidents in the context of the defendant’s criminal record, his continued drug associations and his ability to conceal his drug use and activity from his mother, to understand why the defendant remains a substantial risk to the public’s protection and safety if released.

[70] Without something more like an objective third party assessment to confirm a diagnosis, a prognosis, a treatment plan tailored to the defendant’s serious addiction including a realistic relapse strategy, the likelihood of the dangers that the defendant poses to himself and, more significantly, the public remain. Simply put, the likelihood of committing an offence if released and remaining a substantial risk to the public’s protection and security remain. These concerns are likewise not adequately addressed by the plan and measures proposed by the defendant.

[71] The defendant’s drug addiction is serious and long-standing. His past actions demonstrate he is prepared to go to increasingly extraordinary lengths oblivious to court orders or the public’s safety in furtherance of his own drug use and/or an involvement in serious drug trafficking with similar associations.

[72] The test is not now whether to take a chance and roll the dice based on the defendant’s best intentions but whether the defendant has discharged the onus on both secondary and tertiary grounds. In this case, the defendant has not discharged the onus on either of these grounds.

[73] This is not to say that GPS monitoring cannot be an effective tool to assist in supervision and compliance in many other cases. However, in a situation as here where past drug associations, continued past breaches, misconduct and escalating criminal activity in the context of an ability to conceal his drug use and associations from the most capable and well-intentioned supervision, the defendant’s proposal that includes GPS monitoring has limited effect and does not sufficiently address the concerns of either the secondary and tertiary grounds in the circumstances of both set of charges.

Conclusion

[74] For reasons provided, the application of the defendant is dismissed.

“Justice M.D. McArthur” Justice M.D. McArthur

Released: November 21, 2018

COURT FILE NO.: 175/18 DATE: 20181121 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SHANE SIMMERS BAIL REVIEW DECISION McArthur J.

Released: November 21, 2018