Court File and Parties

Court File No.: 19-1928 Date: 2019/07/02 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Edward McGrath, Applicant

Counsel: Moiz Karimjee, for the Provincial Crown David McKercher, for the Federal Crown Karin Stein, for the Applicant

Heard: June 24, 2019

Reasons for decision on Bail Review

A.E. London-Weinstein J.

[1] Mr. McGrath brings an application under s. 520 of the Criminal Code. He is seeking a review of the detention order made by Justice R. Graydon on Tuesday, May 21, 2019.

[2] Mr. McGrath is charged with 23 criminal offences arising from an incident alleged to have happened on April 25, 2019.

[3] At the time of the allegations, Mr. McGrath had been placed on a probation order requiring that he not have any contact with the complainant absent the complainant’s prior written consent filed in advance with the police. I understand the complainant did not file that consent, but that the complainant was not actively objecting to Mr. McGrath being in contact with him, as it appeared that Mr. McGrath was employed as a tree cutter by the complainant.

[4] However, on April 25, the complainant called police to report that Mr. McGrath had shot a bullet over his head after an argument on the telephone.

[5] Mr. McGrath was arrested a short time later in a vehicle which roughly fit the description provided by the complainant. Mr. McGrath was in the passenger seat of the vehicle and his co-accused Mr. Tountas was driving the vehicle. A loaded .22 caliber pistol was located in the front passenger seat area of the vehicle. In addition, .22 caliber ammunition was also located in the vehicle along with a pellet gun.

[6] Police later observed a bullet hole in the wall above the couch in the living room at 1720 Grassmere Crescent. Cst. Medvenduke located .22 caliber ammunition in a bedroom on the second floor of the residence. A hole in the drywall was found in the living room and a spent .22 caliber casing.

[7] Neither Mr. McGrath, or the co-accused. Mr. Tountas had valid fireman’s licenses.

[8] The Guns and Gangs police unit executed a search warrant at 1720 Grassmere Crescent. In Mr. McGrath’s bedroom, police seized 10 .22 caliber rounds, three 9 mm caliber rounds, 386.1 grams of meth, and 695.9 grams of marijuana. A health card belonging to Mr. McGrath was found in the room believed to be Mr. McGrath’s bedroom.

[9] Evidence was also seized under warrant from the vehicle which was driven by Mr. Tountas. The car was not registered to Mr. McGrath, he was merely a passenger in the vehicle at the time it was stopped and he was arrested. As a result of the evidence seized from the car, Mr. McGrath and Mr. Tountas were jointly charged with: three counts of Possession for the Purpose of Trafficking (cocaine, crack cocaine and xanax).

[10] Evidence seized from Mr. McGrath’s room at 1720 Grassmere Crescent resulted in charges of possession for the purpose of trafficking in methamphetamine, and possession of cannabis for the purpose of distribution.

[11] A more fulsome description of the charges is set out in a summary which was provided to the court.

[12] Mr. McGrath was on a probation order not to have contact with the complainant, except for the terms I described, which were not executed by the complainant. He was also on a s.109 order at the time of the allegations.

[13] Mr. McGrath was denied bail by Justice Graydon on the tertiary ground.

[14] On behalf of Mr. McGrath, Ms. Stein seeks a de novo hearing on the basis of a material change in circumstances since the last bail hearing. In the alternative, she argues that the original justice erred in the tertiary ground analysis. An additional surety is being proposed to address the hearing judge’s concern about supervision during employment. The plan will have Mr. McGrath attend the Ottawa Mission Lifehouse and Stabilization programs for treatment for his addiction. Two sureties will supervise him. Mr. Raymond Hebert will supervise him while he works for Mr. Hebert. Mr. George Khaled, who was the surety proposed at the previous bail hearing was again part of the proposed plan of bail.

[15] I found that the addition of Mr. Hebert as a proposed surety met the threshold for a material change in circumstances as articulated in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. The provisions in s. 520 do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. They establish not a de novo hearing, but rather a hybrid remedy.

[16] Review is only appropriate in three situations:

1. Where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case;
2. Where the impugned decision contains an error of law; or
3. Where the decision is clearly inappropriate.

[17] The criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759 are relevant to the issue of what constitutes fresh evidence in regard to the review contemplated by s.520. The proper approach is to adopt a generous and liberal interpretation of the meaning of new evidence within the context of a bail review. R v. St. Cloud, supra para 131.

[18] The four Palmer criteria are:

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, when taken with the other evidence adduced, be expected to have affected the result.

[19] In the context of a bail review, this fourth Palmer factor is modified as “the fresh evidence must be such that it is reasonable to think, having regard to all of the circumstances that it could have affected, not would have affected, the balancing exercise in regard to the tertiary ground, and meets the other three criteria. In those circumstances the evidence should be admitted.

[20] I have found that adding a surety who would supervise Mr. McGrath at work is relevant to both the secondary and tertiary ground consideration. In coming to this conclusion, I have not conflated the secondary and tertiary ground.

[21] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, the Court explained that bail denial to maintain confidence in the administration of justice is not a mere “catch all” for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories. The same facts may be relevant to all three heads. But that does not negate the distinctiveness of the three grounds. Hall, para 30.

[22] In my view, the specific factors supporting the bail plan are not only relevant to secondary ground concerns, but are relevant to tertiary ground concerns. A reasonable person’s confidence in the administration of justice could be affected, by knowing that very stringent terms of release are being proposed, versus very few conditions being imposed. This may have particular significance in close cases. The public may very well, for example, lose confidence in the administration of justice upon learning that an individual charged with a serious offence was released with few conditions. However, that confidence may not be undermined if the public were aware that very significant restrictions and continuous supervision were in place. The conditions imposed by the court are directly relevant to public perception of the administration of justice. While conditions of release are relevant to secondary ground concerns, in my view they are also relevant to tertiary ground concerns.

[23] In my view, the fact that Mr. McGrath will now be with Mr. Hebert working during the day, thus increasing the time that he is supervised, is a material change in circumstance which could have affected the initial weighing of the factors by the original justice. In fact, in addition to the comments in Hall, supra, which clearly contemplate factors being potentially relevant to all three grounds, in St. Cloud, supra, the Court indicated that all the circumstances of each case must be considered, paying particular attention to the four listed circumstances. However, the four listed circumstances are not exhaustive. No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. This involves the balancing of all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be determined is whether detention is necessary to maintain confidence in the administration of justice.

[24] In order to answer this question, the court must assume the perspective of the public, that is the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.

[25] In short, an accused’s person release plan may be relevant to whether public confidence in the administration of justice is capable of being maintained. R. v. B.(A.), (2006), 2014 C.C.C. (3d) 490 (Ont. S.C.J.) at p. 501.

[26] Having found that there was a material change in circumstances which could have affected the weighing of the relevant factors by the original justice, I have gone on to conduct the analysis regarding the tertiary ground.

[27] I would like to say at the outset that in my view, the two sureties proposed were both excellent candidates. Mr. Khaled is a long time friend of Mr. McGrath. Mr. Khaled is employed and is a responsible member of the community. I was highly impressed with his willingness to assist Mr. McGrath and I found him to be a very good potential surety. While Mr. McGrath has a somewhat lengthy criminal record and neither surety aware of it, that did not suggest to me that they were not close to Mr. McGrath or would be unable to supervise him appropriately. Sharing the details of one’s criminal record is not something that is necessarily part of a lengthy friendship, such as the one shared by Mr. McGrath with Mr. Khaled and Mr. Hebert.

[28] Mr. Hebert, similarly, was a no nonsense, direct, and sensible individual. I found his motivation to help Mr. McGrath to be sincere and I had no doubt that he would supervise Mr. McGrath while at work.

[29] The plan itself to have Mr. McGrath working and in treatment is also a good plan to target Mr. McGrath’s long standing addiction issues.

[30] However, when I consider the four enumerated tertiary ground factors, despite what I regard as an improved bail plan by the addition of very caring and capable sureties, I am not satisfied that the tertiary ground concerns have been satisfied.

The Crown’s case in relation to the possession of the firearm and the discharging it over the complainant’s head.

[31] The firearm was seized shortly after Mr. McGrath is alleged to have left the residence. It was located in the passenger area of a vehicle where he had been sitting. The bullet fired has been retrieved from the dry wall, along with a shell casing. While I appreciate that the Crown’s case may appear artificially stronger at a bail hearing then later in the trial after cross examination of witnesses and full disclosure, on an initial review of the case at this stage, the Crown case appears very strong.

[32] The charge is very serious. The presence of the gun along with narcotics is some evidence that the gun was a tool of the drug trade. The fact that the gun was allegedly fired takes this to a level beyond mere possession of a firearm, which in and of itself is already a serious charge.

[33] The circumstances surrounding the commission of the offence involve Mr. McGrath allegedly firing a gun over the head of a person who he was not supposed to be in contact with, while on a s. 109 order. The presence of drugs in his room is also suggestive of drug trafficking.

[34] Mr. McGrath also has the potential for a lengthy period of imprisonment due to the nature of his charges.

[35] I have considered all of the circumstances which I consider to be relevant under the tertiary grounds. The new sureties are both strong, and the plan for treatment is strongly in the interests of Mr. McGrath, who suffers from an ongoing addiction which he has periodically been able to successfully address. Treatment of his addiction would get at what I perceive to be the root of his conflict with the law. He has no prior firearms convictions on his record.

[36] If Mr. McGrath had been charged merely with possession of a firearm, my decision may have been different.

[37] However, an individual person fully apprised of the circumstances of the case and the plan of bail, and all of the surrounding circumstances, would in my view, lose confidence in the administration of justice if Mr. McGrath were released.

[38] Mr. McGrath is alleged to have discharged a firearm over the head of the complainant into the wall behind him. This allegation occurred while he was on probation, and the subject of a s. 109 order.

[39] Therefore despite the strength of the bail plan, which I regard as relevant to the tertiary ground, Mr. McGrath shall remain detained. The original detention order will stand.

A.E. London-Weinstein J. Released: July 2, 2019