COURT FILE NO.: CR-19-1403-00BR
DATE: 2019 01 14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. LINDON HUNTER
BEFORE: D. E. Harris J.
HEARD: January 11, 2019
COUNSEL: M. Godinho for the Crown Respondent T. Kent for the Applicant Hunter
BAIL REVIEW ENDORSEMENT
[1] The applicant Lindon Hunter applied under Section 520 of the Criminal Code for a review of his detention order made by Justice of the Peace L. Ross on August 23, 2018. I dismissed the application on January 11, 2019. There are my reasons for doing so.
[2] The applicant was detained on the second and tertiary grounds in the court below. He is charged with robbery, intent to commit an indictable offence while masked and failing to stop his vehicle while being pursued by the police.
[3] This bail review is premised on a material change in circumstances: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 122-139. Specifically, two new sureties are proposed to take the place of the surety from the bail hearing below.
[4] The allegations are that the applicant and another man, while masked, entered a bank and, threatening the patrons and the staff, made off with about $7000. Apparently no weapons were used. A security guard was assaulted during the robbery. For the purpose of evading capture, the men used bicycles to make their escape. They soon abandoned the bicycles in favour of the greater speed of a car, with an accomplice at the wheel. After stopping at an apartment, they changed clothes. The applicant then took the wheel in a second car and began to drive away.
[5] As he was leaving, the police arrived. The cash from the bank had tiny GPS transmitters attached to it. The police had a precise map of the applicant’s movements from the time he left the bank. A police chase of the applicant’s vehicle ensued in a busy densely populated residential neighbourhood. The applicant eventually crashed the car and made good his escape on foot. He was arrested several days later.
[6] The applicant has four previous robberies on his criminal record dating back to 2008. Most recently, in December of 2015, he was found guilty of two robberies and served the equivalent of three years incarceration.
[7] At the hearing below, the applicant proposed a surety which the Justice of the Peace held was not suitable. It was agreed on this review hearing that the Justice of the Peace was correct in her assessment. The applicant has now produced two new sureties: his mother and his sister. He was estranged from his mother until quite recently but has always been close to his sister. They are an enormous improvement on the surety tendered at the original bail hearing. The plan proposed is an improvement as well.
[8] In detaining on the secondary and tertiary ground, the Justice of the Peace leaned heavily on the manifestly inadequate surety and the unsatisfactory release plan advanced. However, the Justice of the Peace continued on with respect to the secondary ground,
Even if the plan were satisfactory, I believe there is a substantial likelihood that you will commit further offences.
[9] The ruling then continued on to state that the applicant had a girlfriend who was pregnant and two other children whom he had not taken responsibility to care for. According to the Justice of the Peace, the applicant told the court he now wanted to take responsibility. The Justice of the Peace commented in her reasons that the applicant had previous opportunities but had not taken advantage of them.
[10] This odd, tangential aside appears to relate to earlier remarks by the Justice of the Peace concerning people who say they are going to turn their lives around, like the applicant, but they “could have done all of that before” the alleged offences.
[11] This was a strange road to go down. The applicant did not testify at the bail hearing. Defence counsel had made brief submissions about the applicant’s aspirations and his pledge to improve himself. The Justice of the Peace’s comments appeared to contain a moral condemnation of the applicant but were probably more about her skepticism of his implicit promise conveyed through counsel not to commit further criminal offences. It may also have been a response to what could have been construed as a bid for sympathy to the court. On balance, despite their unfortunate appearance, I do not believe the Justice of the Peace’s comments reflect error.
[12] Leaving this aside, there was plenty of room for the Justice of the Peace to find that, given the applicant’s affinity for committing the crime of robbery over the years, the secondary ground was satisfied by the Crown. Yet she did not say that. What she said was a bare conclusion that there was a likelihood of further offences, even if the plan had been good. The lack of supporting reasons for this conclusion raises a concern.
[13] However, I think the Crown was correct to refer to the sufficiency of reasons jurisprudence on this point. If the reviewing court can tell the parties and the public the reasons underlying the conclusion, then that is sufficient: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, para. 55, point 10.
[14] In this instance, the foundation for the secondary ground conclusion is not difficult to see. The history of robberies and the seriousness of the current offences was compelling evidence to establish secondary ground detention. There could not have been any other basis for the Justice of the Peace’s conclusion.
[15] In light of the secondary ground detention being predicated on the likelihood of committing other serious offences, not on the inadequacy of the plan, the offer of new, vastly improved sureties does not amount to a material change of circumstances. It does not reach the ultimate problem the Justice of the Peace below had with release of the applicant. The fresh evidence tendered must bear on the reason for detention in order for it to constitute a material change: R. v. Amagyei, 2018 ONSC 7544, at paras. 14-17 (publication ban in effect until the trial is completed), St. Cloud, at paras. 135, 137. Here it does not.
[16] With respect to the tertiary ground detention, counsel for the applicant with admirable frankness conceded that the enumerated statutory conditions are all met: the Crown case is strong, the offences are serious, the circumstances around the offences are aggravating including the planning and the danger posed during the robbery and the car chase, and if convicted, a substantial penitentiary term will be imposed.
[17] Although sureties can ameliorate tertiary ground concerns to some extent, they are only as good as the applicant. An informed member of the public would look to the accused applicant first. A good surety cannot rectify an unreliable accused. That, in my opinion, is the situation in this case. That was essentially the reason for tertiary ground detention ordered by the JP below.
[18] Again, producing new and improved sureties does not alter the reason detention was ordered on the tertiary ground. There is no material change in circumstances on the tertiary ground.
[19] Those are the reasons why I dismissed the bail review application.
D.E. HARRIS J.
DATE: January 14, 2019
COURT FILE NO.: CR-19-1403-00BR
DATE: 2019 01 14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. LINDON HUNTER
HEARD: January 11, 2019
COUNSEL: M. Godinho for the Crown Respondent T. Kent for the Applicant Hunter
ENDORSEMENT
D.E. HARRIS J.
DATE: January 14, 2019