Court File and Parties
COURT FILE NO.: CR-18-1277-00BR DATE: 20181217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. JASON AMAGYEI
BEFORE: D. E. Harris J.
COUNSEL: E. Taylor for Crown Respondent C. Levien for Applicant Amagyei
BAIL REVIEW ENDORSEMENT
D. E. HARRIS J.
[1] These are my reasons why I dismissed the applicant’s Section 520 of the Criminal Code bail review at the end of the oral hearing held on December 14, 2018.
[2] The applicant is charged with an attempt to possess an unauthorized firearm contrary to Section 91(1) of the Criminal Code and attempt to import a firearm contrary to Section 103(2) of the Code. Justice of the Peace Quon detained him in custody on August 10, 2018 based solely on the tertiary ground. In his reasons, Justice Quon focused on the statutory criteria in Section 515(10)(c) (i-iv): i.e. the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence and the potential for a lengthy term of incarceration.
[3] The allegations are that a Homeland Security undercover agent in the United States posed on the dark web as a firearms exporter and dealer. The applicant contacted him by email inquiring about purchasing a handgun. After being offered several options, the applicant settled on a PF9 handgun for $750 to $800 US. The applicant gave his name and address. A deposit of 30 percent of the purchase price was discussed.
[4] The delivery of the gun was set for July 5, 2018. A Peel Regional Police undercover officer attended and met the applicant. Both the officer and the applicant had photographs of the same swimming pool on their phones in order to verify each others’ identity. The pictures were shown. The applicant used his cellphone to pay $743 US by bitcoin. The applicant showed the undercover officer the completed transaction on his cell phone. The undercover officer received word on his cell phone a short time later that the money was coming in.
[5] The undercover officer produced an “inert firearm.” It was a Norinco 9 mm. The gun was cocked and appeared to be operational. Two magazines were produced. The applicant was appreciative and was observed smiling and nodding. The undercover officer asked if bullets were needed and the applicant said yes. When the undercover got out of the car to get the bullets out of the car trunk, the tactical squad moved in and arrested the applicant.
[6] The applicant is 21 years old with no criminal record. He offered his father as a surety in the amount of $20,000 and strict house arrest supervision. Although the applicant’s brother Kevin did not testify, the plan was to have him supervise during the day while their father was at work.
[7] Bail release was a reverse onus by virtue of the attempt importation charge: Section 515(6)(vi). The Crown conceded the primary ground. In his reasons, the Justice of the Peace held that the applicant had discharged the secondary ground. The secondary ground raises the question of whether detention is necessary for the protection or safety of the public including the substantial likelihood that the applicant would commit criminal offences if released. In this part of his decision, the Justice of the Peace was satisfied based on the applicant’s lack of a criminal record or any history of criminality.
[8] Detention was ordered on the tertiary ground. The Crown’s case was strong as the applicant had used his own name and then been personally involved in the transaction with the Peel undercover officer. The gravity of the offence was clear as it was a purchase of an illegal handgun together with ammunition. The circumstances of the offence, similarly, were serious as they included the use of the dark web to avoid detection and untraceable bitcoin to make the purchase. Lastly, with respect to the length of the likely sentence, the Justice of the Peace was of the opinion that this too militated towards detention. In reference to the importation charge, he said that there was a three-year mandatory minimum for a first offence.
[9] Counsel are agreed that the Justice of the Peace probably erred with respect to the mandatory minimum. The importation offence was charged as an attempt. No firearm was actually imported, the entire scheme being a ruse by law enforcement. In light of this, the mandatory minimum in Section 103 does not apply.
[10] In any case, it is beyond dispute that the applicant is facing a lengthy term of imprisonment although not the inflexible three years dictated by the mandatory minimum. I agree with the Crown that this was harmless error.
[11] The 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:
- New evidence leading to a material change in circumstances;
- An error of law committed by the bail justice; and
- A “clearly inappropriate” decision.
[12] This bail review application was premised by counsel solely on a material change in circumstances. The material change of circumstances relied upon is the tendering of the applicant’s brother Kevin as a surety and the additional proposal of electronic monitoring of the applicant.
[13] Chief Justice Wagner in St. Cloud 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 quoted from Warsing, listing the four criteria for admission of new evidence:
(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. [The Chief Justice made it clear that this criterion, in the context of bail, should be modified to require relevance and nothing more: see para. 135] (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. (Emphasis Added)
[14] The best interpretation of conditions 2 and 4 in the context of bail is that a material change in circumstances must relate to the reasons for detention in the court below. In other words, the validity of the detention order must be thrown into some question by the new evidence tendered on the review. Otherwise, the evidence is not relevant as required by condition 2 nor could it have affected the result as required by condition 4. Any other approach to fresh evidence would imply a de novo hearing upon the review, a position specifically rejected by the Chief Justice (see St. Cloud, para. 94).
[15] This interpretation is confirmed by the Chief Justice’s brief discussion of condition 4 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.
[16] The pre-St. Cloud jurisprudence also demanded that the new evidence relate to the reasons the court below denied bail. For example, Justice Hill said,
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. (Emphasis Added) R. v. Ferguson [2002] O.J. 1969 (S.C.)
[17] In this case, the new surety and the electronic monitoring have no relevance to the grounds for refusing bail. In fact, the Justice of the Peace in deciding that the applicant had discharged his onus on the secondary ground discussed the plan of supervision and, although finding gaps in it because the applicant’s brother Kevin had not testified and his exact work schedule was unknown, was satisfied that the secondary ground did not constitute an impediment to release. The absence of Kevin’s evidence at the bail hearing was not an issue.
[18] The Justice of the Peace’s tertiary ground reasons for detention emphasized the strength of the case—as Mr. Taylor said at this hearing, the applicant was caught red-handed—and its seriousness. There is likely going to be a significant jail sentence. The Justice of the Peace held that for these reasons, releasing the applicant would lead to a loss of public faith in the administration of justice.
[19] While reliable surety supervision and electronic monitoring could affect the analysis on the tertiary ground in a different case (see e.g. R. v. Papasotiriou 2018 ONCA 719, 366 C.C.C. (3d) 298, at para. 46), here the Justice of the Peace did not criticize the surety arrangements or the program proposed. He did not hold that they in any way frustrated the discharge by the applicant of his tertiary ground onus.
[20] Ultimately, the reason the Justice of the Peace detained the applicant derived from the terrible scourge illegal handguns represent in our community. He was perfectly entitled to make that assessment—it is unimpeachable—and to find that it led to the conclusion that the tertiary ground was not satisfied.
[21] In summary, I do not agree with the applicant that there has been a material change in circumstances as that concept is used in St. Cloud. There has been no persuasive argument advanced to show that the decision below should be reviewed. That is why this application was dismissed.
DATE: December 17, 2018
COURT FILE NO.: CR-18-1277-00BR DATE: 20181217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. JASON AMAGYEI
COUNSEL: E. Taylor for Crown Respondent C. Levien for Applicant Amagyei
BAIL REVIEW ENDORSEMENT
D. E. HARRIS J.
DATE: December 17, 2018