Court File and Parties

COURT FILE NO.: CR-19-63 DATE: 2019/06/27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – M.L.

Counsel: Ross Stewart, Counsel for the Federal Crown Raffael Joanis-Beaulieu, Counsel for the Provincial Crown Monick L. Grenier, Counsel for the accused

HEARD: June 21, 2019

REASONS FOR JUDGMENT on bail review

Rick Leroy, J.

Introduction

[1] This is the ruling on the bail review heard June 21, 2019. Justice of the Peace Marchand detained Ms. M.L. on May 15, 2019 after hearing. That bail hearing arose from CDSA, weapons and ammunition charges following execution of a search warrant on May 10, 2019 at the address Ms. M.L. identified as her home on April 1, 2019. Ms. M.L. was present in the property when the warrant was executed on May 10, 2019.

Burden

[2] The burden was on the accused at both hearings. Ms. M.L. was arrested and released on a promise to appear and O.I.C undertaking on April 1, 2019. Subsection 524(4) of the Criminal Code applies. She is charged with offences referred to in subsection 515(6)(d) of the Criminal Code. As she was detained by Justice of the Peace Marchand subsection 520(7)(c) of the Criminal Code applies.

Criminal Record

[3] Ms. M.L. has a criminal record. She is 39. Her record derives from life changing circumstances befalling her in 2014.

[4] She pled to break enter and theft charged by the OPP in Lancaster in Fort St. John, B. C. on August 12, 2015 and was sentenced to a conditional sentence of six months and probation for one year. No derivative charges arose from that sentence.

[5] Ms. M.L. was sentenced in Sherbrooke, Quebec on March 29, 2018 for offences charged in 2015 and was placed on probation for two years.

Active files

[6] There are three outstanding warrants for Ms. M.L.’s arrest issued in Sherbrooke and Granby from August and September 2018 for credit card fraud and breach of probation.

[7] Ms. M.L. was charged with shoplifting and breach of probation as result of an incident at a local retail building supply store on April 1, 2019.

[8] The most serious charges arise from the recent search which garnered a significant cache including 200 grams of crystal methamphetamine, thirty grams of powdered cocaine, 4.8 grams of crack cocaine in 12 baggies, 3 tablets of MDMA ecstasy, one gram of heroin, one Hydromorphone capsule, 44 grams of hash oil, 48 packs of 100-milligram hash oil in the freezer, three grams of psilocybin, five thousand dollars in cash in separate envelopes containing one thousand each, $445 in the co-accused’s wallet, one one-ounce gold bar, two cross-bows, switchblade knife, three shotgun shells and pellet rifle, packaging materials, a working scale, debt list, three cell phones and a cutting board.

The bail hearing

[9] The evidence adduced in the bail hearing included the criminal record, the preceding background, two photographs of the residence searched and the probation order from Sherbrooke issued May 29, 2018.

[10] Ms. Grenier’s plan was that Ms. M.L. be released on her own recognizance with bond, without deposit and conditions to include continued participation in the Suboxone Program, mental health counselling, monthly reporting to police and residence in the home of a friend’s mother in Glen Robertson.

[11] Ms. Grenier cites both error in law and an improved plan as basis for review.

[12] Justice of the Peace Marchand accepted as fact that the ITO did not reference hand-to-hand interaction involving Ms. M.L. and her knowledge and control of the controlled substance are triable issues.

[13] Justice of the Peace Marchand noted the two sets of recent local charges, the apparent strength of the Crown case, the value, diversity and packaging of the drugs and weapons seized, the three outstanding warrants from Granby and Sherbrooke and the lacuna of evidence regarding Ms. M.L.’s personal circumstances that obliged the Court to speculate.

[14] He identified concerns in relation to whether detention was necessary to insure her attendance in court in order to be dealt with according to law – three outstanding warrants, the lacuna of evidence of ties to the community.

[15] He responded directly to Ms. Grenier’s submission to the point that even if there was a conclusion of substantial likelihood that if released from custody she would commit a criminal offence, there was no violence and danger to the public made out. He confirmed that the drug trafficking falls under the rubric of danger to the public.

[16] Justice of the Peace Marchand agreed that the limited number of breaches could not be the basis for a conclusion there is evidence of substantial likelihood of criminal offences if released.

[17] In the end result, Justice of the Peace Marchand concluded that the plan offered for release was less than viable, that defence did not meet the burden of showing judicial interim release was warranted and the plan did not respond to the protection of the public required. He did not identify the evidence he relied on to form the conclusion that Ms. M.L. would, if released from custody, commit a criminal offence.

[18] He detained on a combination of the primary and secondary grounds in s. 515(10) of the Criminal Code. He noted that an improved plan would merit release.

The bail review plan

[19] Ms. M.L. has been detained for forty-eight days. The detention center describes her as a model resident, a kind and genuine person. Ms. M.L. confirmed enrolment in the Suboxone Program, Bible study, AA, NA and yoga.

[20] Ms. M.L. testified and delivered an affidavit in support of the application. This detention is the first of her life and an important life lesson.

[21] She has ties to this community. She resided in Glen Robertson for fourteen years between 2000 and 2014. She was in a relationship and did not have a criminal record. She has been with her family physician, Dr. Souligny from Hawkesbury for twenty-two years. In 2012, she learned that her partner, step-father to her daughter, was sexually abusing the daughter. He was convicted. The daughter went to reside with her biological father in Quebec. She said her daughter suffered injury. Ms. M.L. is a recipient of ODSP.

[22] Ms. M.L.’s life fell apart. Depression set in. She turned to and became addicted to opioids. The charges for which she was convicted arose from that background.

[23] Ms. M.L. ran from the situation by moving to British Columbia in 2015. To her credit, she arranged for disposition of the outstanding Ontario charges on August 12, 2015.

[24] She resided in British Columbia for the ensuing four years without offending. She returned to Sherbrooke in 2018 to visit her parents. She arranged disposition of those outstanding charges on March 29, 2018.

[25] She said she wishes to attend to the outstanding warrants from Granby and Sherbrooke. She is told by counsel after discussion with the Crowns’ offices in Granby and Sherbrooke that the outstanding warrants will be resolved with promises to appear.

[26] Ms. M.L. said she has never really attempted withdrawal and addiction rehabilitation, but did engage with her doctor on March 19, 2019 for a referral and strategy for that purpose. She said the Suboxone regimen was and is part of the plan as well as referral for mental health counselling scheduled to begin the Monday following detention. She said the Suboxone Program is working.

[27] The John Howard Society committed to assisting Ms. M.L. with housing and the ongoing components of the recovery program when she is released. She had an emergency bed at Riverview for five days starting Monday June 24, 2019. She understood that respite would provide portal into longer term local housing in the community that could include six weeks residence in Baldwin House.

[28] The JHS recommends conditions of release as follows:

• That the accused report to the John Howard Society Supervision Program at 329 Pitt St., Cornwall, ON, on Thursday June 27, 2019 at 1:00 p.m. and thereafter as required;
• That the accused be under the direction and supervision of the program and be amenable to its rules and regulations; and
• That the accused reside at an address verified by the bail program. Any change of address to be reported to the bail program

[29] Ms. M.L. committed to compliance with JHS requirements.

New Evidence

[30] As the reviewing justice, I do not have the power to interfere with the decision of the Justice of the Peace because I would have weighed the relevant factors differently. Correct judgments are intended to be final.

[31] The issue is whether it is appropriate to exercise this Court’s power of review on the basis of admissible new evidence that is asserted to demonstrate a material and relevant change in the circumstances of the case.

[32] The rules of evidence are to be relaxed in the context of the new evidence criteria identified in R. v. Palmer. If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) of the Criminal Code.

[33] Although the Supreme Court in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 confirmed that the four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759, 1979 8 (SCC) are relevant with necessary modifications to the determination of what constitutes new evidence for the purposes of the review in ss. 520 and 521 of the Criminal Code, application has to be flexible given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused. The release hearing takes place at the very start of the criminal proceedings. In St. Cloud, the Supreme Court rejected the Crown’s submission for a narrow view regarding new evidence. At paragraph 131, Justice Wagner wrote that “A generous and liberal interpretation of the meaning of “new evidence” in the context of ss. 520 and 521 Cr. C. is consistent with principles developed by this court”. At paragraph 130, Justice Wagner notes “that the pre-trial detention of accused persons – like their release – is by its nature very often interim and not final.”

[34] Justice of the Peace Marchand was not given evidence to overcome the reverse onus for release. His hands were tied in that respect. He said that with evidence of a more viable plan of release, he would have approved same.

[35] The JHS offers a level of independent supervision and facility missing from the bail hearing. Ms. M.L. has tangible access to appropriate housing under the auspices of the JHS. I expect them to be in regular contact. Even if she was homeless, detention at the OCDC is not a default.

[36] Ms. M.L. testified and undertook to abide by JHS requirements.

[37] We now know that Ms. M.L. has ties to this community. She resided in Glen Robertson for fourteen years and is treated by her long term family doctor.

[38] She has since started the Suboxone drug rehabilitation Program and stated her commitment to permanent change in that part of her life. She attends narcotics anonymous, AA, Bible study. She views treatment as an opportunity to be seized.

[39] Ms. M.L. has used the time in detention to display sound pro-social skills. The letter from the center is as positive as I’ve seen.

[40] Ms. M.L. is a recipient of ODSP. I accept that as reliable evidence of disability from employment and tie to this community. That she will not benefit from structure employment might provide is not in and of itself a circumstance favouring detention.

Discussion

[41] I don’t accept that the detention order would have been changed to release, but for an error in law.

[42] Deference is owed.

[43] Although I accept the conclusion from the bail hearing of detention on the secondary ground without a specific finding there was a substantial likelihood of re-offending if released is problematic, the Justice of the Peace did advert to the serious nature of the charges, the inherent violence and risk of recidivism involved in the drug business and there was no evidence from the accused to help him with an alternate perspective.

[44] There were documented grounds uncontested and without context to detain in respect to the primary ground.

[45] The main gist of the Crown position is driven by the accused’s past decisions in the face of criminal proceedings together with the serious danger to public safety that trafficking in controlled substances represents. She showed disregard for court process. She went to B.C. in 2015 without resolution of outstanding charges. She took flight. History is a good indicator of future behaviour.

[46] Ms. M.L. explained the exceptional circumstances she faced at the time. She had to escape the status quo at the time. She depicted the criminal charges as incidental to the upset, turmoil and depression from the damage to her daughter and consequential loss of extended family who thought her decision to report the step-father’s assaultive behaviour was disloyal.

[47] That she dealt with outstanding charges voluntarily, albeit on a somewhat delayed basis, tends to support that perspective.

[48] I am satisfied that, had the new evidence been adduced at the bail hearing, it would have affected the result.

[49] My issue is whether the evidence before me is sufficient to rebut the reverse burden. Has Ms. M.L. adduced evidence to satisfy me that she will attend to deal with these charges as required and she is not a substantial risk of offending while on release?

[50] The new plan brings strengths when compared to her past circumstances. The most significant change is the commitment to recovery. She may have lamented her addictions in the past, but never with the view to the long road of recovery.

[51] She was victimized and left to her own resources which turned out to be barren.

[52] I conclude that detention is unnecessary to ensure Ms. M.L. will attend court as required to be dealt with according to law. As with the secondary ground, this analysis involves risk prediction and management. Although every person charged with serious criminal offences is a prospect for running, the circumstances here are such that the flight risk is materially ameliorated by the evidence brought forward on the review and can be adequately addressed with conditions.

[53] A strong case is a relevant consideration but is not determinative of bail. The Crown case will always appear strong in the early stages. Section 11(e) of the Canadian Charter of Rights and Freedoms prohibits the inference at the bail hearing to the point that the accused is probably guilty so there is no great hardship to detention.

[54] I conclude that detention is unnecessary for the protection or safety of the public including any victim of or witness to the offence, having regard to all the circumstances, including any substantial likelihood that the accused would, if released from custody, commit a criminal offence or interfere with the administration of justice.

[55] I am mindful of the comments by the Justice of the Peace confirming that Ms. M.L.’s record does not bring her within the substantial likelihood range. I am mindful of Mr. Justice Lamers’ comments in R. v. Morales (1992), 77 Cr. C.(3rd) 91 at page 107 where he said:

Bail is denied only 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. Moreover detention is justified only when it is necessary for public safety. It is not justified where detention would merely be convenient or advantageous.

[56] The secondary ground to the extent that it might be a factor can be managed with conditions pending resolution. I accept the Crown’s admonition regarding the illicit trade in controlled substances and inherent concern for re-offending while on interim release. In response, defence argues that the Crown case is light on the essential elements of possession and control as it involves Ms. M.L.. She is a user. Over the last twenty years, Ms. M.L. broke the law in 2014, 2018 and now faces charges in 2019. She was otherwise free of offending, including fourteen years in Glen Robertson and four years in British Columbia. She is addicted to opioids and is making a solid run at recovery.

[57] Reverse onus or not, Ms. M.L. has the right not to be denied reasonable bail. She met the reverse onus with the bail review evidence. So now I turn to the reasonable terms of bail.

Terms of release

• The statutory conditions for a CSO - #1, 2, 4 – except for attendance in Granby and Sherbrooke to deal with the outstanding warrants and charges.
• That the accused report to the John Howard Society Supervision Program at 329 Pitt St., Cornwall, ON today, Thursday June 27, 2019 at 1:00 p.m. and thereafter as required;
• That the accused be under the direction and supervision of their program and be amenable to its rules and regulations;
• That the accused reside at an address verified by the bail program. Any change of address to be reported to and approved by the bail program;
• That the accused is to keep the IO apprised of her address – Detective John Wood OPP Long Sault at 613-534-2223 between the hours of 8 and 4;
• That the accused is to report in to the JHS and Cornwall Police Service weekly;
• #10 (1-4), 11(4,5,7), 12(counselling and rehabilitative programs (substance abuse and mental health) recommended and approved by Dr. Souligny and the John Howard Society;
• #9 to include P.S. and R.R..

[58] Defence counsel declared an objection to this term as it applies to Mr. R.R.. Paragraph 515(4.2) of the Criminal Code obliges the Court to consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim or witness to the offence to include as a condition of the order that the accused abstain from communicating with any victim, witness or other person identified in the order.

[59] The object of a non-communication provision regarding a witness prevents an accused person from pressuring a witness to alter his/her/their testimony.

[60] As Justice Trotter observes at page 6-30 of the Law of Bail in Canada, 3rd Edition:

“Non-communication conditions may disrupt relationships that are important to an accused person. It is not difficult to imagine numerous situations in which the victim is a member of the accused’s immediate family. The temporary termination of contact with family members may well be perceived as punishment by the accused. As with the imposition of all other conditions, there must be a legitimate basis for restricting the accused person’s association and activities prior to trial.”

[61] Whatever the relationship between Mr. R.R., the co-accused and Ms. M.L., be it spousal or mere friendship, Ms. M.L. gave Mr. R.R.’s address as her place of residence on April 1, 2019 and that is where the warrant was exercised.

[62] The issue in not about pressuring a witness to alter his/her/their testimony; rather this is Ms. M.L.’s time to embrace opioid recovery and I am concerned about Mr. R.R. as relapse trigger or facilitator.

The Honourable Mr. Justice Rick Leroy

Released: June 27, 2019