COURT FILE NO.: 7938/18
DATE: 2019-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Kirk, for the Crown
Joe Chapman, for the Federal Crown
Respondent
- and -
JOHN SEAMUS FYFE
Anthony Orazietti, for John Seamus Fyfe
Applicant
HEARD: January 18, 2019
VARPIO J.
REASONS ON bAIL REVIEW APPLICATION
[1] This is an application pursuant to s. 520 of the Criminal Code of Canada wherein the accused is seeking his release from custody. He was detained on charges involving possession for the purpose of trafficking, weapons offences and breaches of probation. In his notice of application, he proposed that his release was warranted because he has been able to secure electronic monitoring to assist his proposed sureties (who were called at the bail hearing) and because of an alleged reasonable apprehension of bias on the part of the Justice of the Peace who detained the accused. The Justice of the Peace in question had signed a warrant to search the accused’s residence after he was initially arrested and the accused submitted that this gave rise to an apparent reasonable apprehension of bias. Upon review of the pertinent case law, including R v. Perciballi 2001 13394 (ON CA), [2001] O.J. No. 1712 (Ont. C.A.) and R v. Williams [2013 ONCA 477], the accused abandoned this ground.
[2] For the reasons that follow, I find that the accused’s ability to procure electronic monitoring does not meet the test for a material change in circumstance as described in R. v. St. Cloud 2015 SCC 27, [2015] 2 S.C.R. 328 and, as such, the application is dismissed.
FACTS
Background
[3] Mr. Fyfe comes to the Court with a tragic story. According to his affidavit, Mr. Fyfe has two undergraduate degrees and is a medical school graduate. He passed his first step of the U.S. licensing exams and completed rotations in a variety of medical fields as recently as 2004, presumably with an eye towards becoming a doctor in the United States. Unfortunately, in the past 10 years, he has attended residential treatment programs for substance abuse on three separate occasions, the most recent being in March 2018.
[4] Mr. Fyfe has no criminal record however, in the summer of 2018, he was found guilty of five separate offences for which he received conditional discharges. He was found guilty of three counts of breach of recognizance and two counts of possession of a schedule I substance. He was put on twelve months of probation and the terms of the probation continue until this day.
[5] In October 2018, the Sault Ste. Marie Police Service (“SSMPS”) received information that Mr. Fyfe was involved in trafficking narcotics. The SSMPS conducted a 1.5 day surveillance of the accused and, on October 16, 2018, the SSMPS arrested Mr. Fyfe for possession of an illegal substance for the purposes of trafficking. A subsequent search of both Mr. Fyfe’s vehicle and his residence (the latter of which was searched pursuant to the impugned search warrant) revealed that Mr. Fyfe was in possession of cocaine, fentanyl and methamphetamines whose street value approximated $39,600. Mr. Fyfe was also found to be in possession of a mace stick, bear mace, and two knives that open with centrifugal force. He was thus charged with offences that are before the Court.
[6] Given the possession for the purposes of trafficking charges, Mr. Fyfe was held for a reverse onus bail hearing and, on November 3, 2018, he was released by a Justice of the Peace. Mr. Fyfe had a surety, Ms. Michelle Boland. Mr. Fyfe was to live with Ms. Boland and was to remain in her residence except for certain enumerated exceptions which included when he was in the Ms. Boland’s presence.
The Alleged Breach and the New Bail Hearing
[7] On December 6, 2018, Mr. Fyfe was arrested for breaching his recognizance. The Crown brought a section 524 hearing, which was successful. A bail hearing then occurred on December 20, 2018. At the hearing, Cst. Derek Belanger testified that on December 6, 2018, he was at the Sault Ste. Marie Canadian Tire when he saw Mr. Fyfe by himself. Cst. Belanger knew Mr. Fyfe and knew the terms of his recognizance. Cst. Belanger also knows Ms. Bolland. Cst. Belanger waited for a period of time to see if Ms. Bolland was with Mr. Fyfe. She did not appear to be. Accordingly, the officer called the station because he knew that Mr. Fyfe was not to be out of his residence except in the presence of his surety or other enumerated exceptions (which were not applicable to an outing at Canadian Tire).
[8] SSMPS officers attended at the scene and found Mr. Fyfe sitting in the passenger’s seat of a motor vehicle. They began to effectuate an arrest when Ms. Bolland arrived. Ms. Bolland’s presence at the scene is accepted by all parties.
[9] The Crown filed materials at the bail hearing outlining that Canadian society, and Sault Ste. Marie in particular, are living through what can only be described as an opioid crisis. Statistics were filed showing a spike in opioid related deaths in Ontario as recently as 2017. Further, the Crown filed City Council resolutions from 2018 wherein the municipal government outlined and sought help for this city’s opioid crisis. Indeed, the City Council documents make reference to a recent CTV W5 program called “Steel Town Down” wherein the documentary outlines this city’s difficulties with said crisis.
[10] Mr. Fyfe called Ms. Bolland as a surety, as well as his sister who was not a surety on the original substantive charges. Ms. Bolland testified that she drove Mr. Fyfe to his apartment to clean it out and, during said transportation, the pair decided to stop at the Cambrian Mall. Mr. Fyfe went to the Post Office outlet in the Canadian Tire to get a package while Ms. Bolland walked to the other end of the mall to go to the bathroom as she was having some issues in that regard. Ms. Bolland walked back to her car and saw the officers. Of note, Ms. Bolland was cross-examined at the bail hearing on an alleged inconsistency in her testimony wherein she indicated that she had decided to pick up shampoo at a hair dresser in the mall during the time she went to the bathroom. Given the lapse of time that Mr. Fyfe was left to be responsible for himself without Ms. Bolland’s direct supervision, Mr. Fyfe was arrested for breaching his recognizance.
[11] The matter went over to December 21, 2018 for the Justice of the Peace to render a decision. The decision occurred on the last day of court prior to the Christmas holidays. The Justice of the Peace detained Mr. Fyfe. She examined the evidence, quoted sections 515(10)(b) and (c) of the Criminal Code of Canada as well as the relevant case law and legal tests. She then found:
I must ask myself now what [release] document could I craft that would satisfy the concerns raised?
R. v. Antic requires us to work our way up the ladder of release, but the ladder only has so many runs [sic], and once a person has reached the top, there is no bail plan that would provide the Court with the confidence needed [to release the accused].
Given the serious conditions that Mr. Fyfe was on, on the previous release document, it is my opinion that he was already at the top of that ladder.
There will be a detention order on the secondary and tertiary grounds in this matter.
ANALYSIS
[12] Mr. Fyfe brings an application pursuant to section 520 of the Criminal Code of Canada. Specifically, he framed his application by stating that
[t]here are material and relevant changes in circumstances pursuant to the Supreme Court of Canada’s decision in R. v. St. Cloud. The change in circumstances include a stronger plan of release which includes surety(ies) [sic] as well as GPS monitoring through services offered by Recovery Science.
[13] Mr. Fyfe does not allege that the Justice of the Peace made an error beyond the now abandoned ground of reasonable apprehension of bias.
[14] In oral argument, counsel specified four areas that constitute a material change of circumstance:
- GPS monitoring as described in the Notice of Application;
- Mr. Fyfe has secured employment;
- Mr. Fyfe has John Howard Society supervision; and
- Mr. Fyfe is attempting to once again enter residential treatment.
[15] Items 2 through 4 can be dealt with summarily. Mr. Fyfe’s employment was mentioned at the bail hearing accordingly it cannot constitute a material change in circumstance. Mr. Fyfe’s acceptance by John Howard Society is not a material change of circumstance as per R. v. St. Cloud in so far as it could easily have been procured at the initial bail hearing since the John Howard Society is present every day in the bail courts of Sault Ste. Marie. The accused does not threfore meet the due diligence test described in R. v. St. Cloud.[^1] Finally, while Mr. Fyfe has attempted to enter residential treatment, he has not received any word as to whether or not he has been accepted for same. Accordingly, this cannot constitute a material change in circumstance in so far as we do not yet know whether or not his circumstance has indeed changed, let alone whether such a change is material.
[16] Counsel rightly conceded that this application has to do with the added ability of the sureties and the SSMPS to supervise Mr. Fyfe given the fact that he is able and willing to be the subject of electronic monitoring. Counsel submits that this ability and willingness is a material change of circumstances as per R. v. St. Cloud.
[17] In R. v. St. Cloud, the Supreme Court outlined three bases upon which a bail review judge can interfere in a decision of the justice of the peace:
- Where the justice of the peace erred in law;
- Where the decision of the justice of the peace was “clearly inappropriate”; and
- Where new evidence shows that there has been a relevant and material change in circumstances.
[18] Wagner J. at paragraph 128 adopted the standard for fresh evidence from Palmer v. The Queen 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775 with requisite alterations for the relaxed nature of the evidential standards found at bail hearings.
[19] Recently, courts have examined whether or not the accused’s willingness to abide by electronic monitoring constitutes a relevant and material change of circumstance.
[20] In R. v. Ma 2015 ONSC 7709, [2015] O.J. 6684, my colleague Goldstein J. dealt with a case where the accused persons were detained on secondary and tertiary grounds following charges of alleged rape and robbery of sex workers. At paragraphs 54 to 57, he stated as follows:
I respectfully disagree that the availability of ankle monitoring constitutes a material change of circumstances. I say this for three reasons:
First, and most importantly, ankle monitoring is simply irrelevant on the tertiary ground, at least in this case. Monitoring is concerned with individual compliance with bail conditions. It is unconcerned with maintaining confidence in the administration of justice in the larger sense. The basic problem is not whether Mr. Ma can be properly monitored, but whether he should be released at all. I can only imagine that the reasonable person described by Wagner J. would be flabbergasted to find that a person in Mr. Ma's position was not detained.
Second, I agree with Ms. Battersby that even if the ankle monitoring information had been available at the bail hearing the result would have been no different. As Hourigan J. (as he then was) pointed out in R. v. Palijan, [2012] O.J. No. 6549 (Sup.Ct.) the ankle monitoring does nothing to prevent non-compliance. The ankle monitors can only gather evidence of compliance. Unlike a surety, who stands to lose something if the accused does not comply and therefore has an incentive to prevent non-compliance, Recover Sciences is a pure reporting instrument. I do not wish to be taken as saying that ankle monitoring is never suitable. There are undoubtedly many cases where ankle monitoring is the correct way to manage an accused person on release. This is not one of those cases. Here, the commission of further offences is a real concern. There is nothing to stop Mr. Ma from cutting off the bracelet, or simply walking out of his house, and committing further offences against vulnerable victims. Although the Crown did not seek detention on the primary ground, Mr. Ma demonstrated a very troubling interest in the passports of both victims. I have no doubt that had the Recovery Sciences information been presented to the justice of the peace, he would still have detained Mr. Ma.
Third, the justice of the peace indicated (although he did not make a strong finding) that he had doubts about the proposed sureties. Nothing about the proposed sureties has changed since the proposed bail hearing, except, perhaps, that they are now willing to have Mr. Ma's wife reside with them. It is apparent from the transcript, and from the evidence before me, that the proposed sureties were not forthcoming about the reasons for disliking Mr. Ma's wife. They would only refer to the fact that she was not a "traditional" girl and did not like the same kind of food they liked. The justice of the peace was, understandably, suspicious. There is ample support in the transcript for the conclusion that the two proposed sureties were less than forthright. Is it possible that Mr. Ma had told them she was a former prostitute? It is not necessary to decide the point, but it lends a very interesting hue not only on the relationship between Mr. Ma and his proposed sureties. In any event, I find that even with the addition of the ankle monitoring the plan of release is not substantially different. [emphasis added]
[21] This reasoning has been noted with approval in R. v. Stojanovski [2017] O.J. No. 6505 at para 33.
[22] I also agree with the logic of my colleague Goldstein J. First, in the circumstances of this case, the electronic monitoring does nothing to address the tertiary ground. It does not in any way touch upon the factors listed in section 515(10)(c). While I agree with Mr. Fyfe’s counsel that the nature of the bail plan will always need to be considered as per St. Cloud, the addition of the ankle bracelet is not sufficiently material to the tertiary grounds such that its presence at the initial bail hearing could have affected the outcome of the hearing. Put another way, it is clear from the Justice of the Peace’s reasons that Mr. Fyfe’s background (including his addictions and his recent priors for breach of recognizance) put him at the “top rung” of the Antic ladder. The subsequent breach which occurred while ostensibly under the direct supervision of the surety – which I accept appears to be technical[^2] – rendered Mr. Fyfe’s situation such that his detention was necessary as per the tertiary grounds. The presence of ankle bracelet supervision at the bail hearing could not have affected this outcome in so far as the public’s confidence in the administration of justice would not have been affected by this GPS tracking. As such, the change is not material to the tertiary ground.
[23] As noted in Palijan, the ankle bracelet would not have assisted the sureties in keeping Mr. Fyfe from committing further offences. As such, the presence of ankle bracelet monitoring is not a material change to the secondary ground detention as per St. Cloud in the circumstances of this case.
CONCLUSION
[24] While the accused’s ability and willingness to be subjected to ankle monitoring are a change to the proposed bail plan, they do not constitute a material change as per R. v. St. Cloud in so far as the presence of same would not have affected the outcome of the bail hearing. Accordingly, the application is dismissed
Varpio J.
Released: January 23, 2019
COURT FILE NO.: 7958/19
DATE: 2019-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOHN SEAMUS FYFE
REASONS ON BAIL REVIEW APPLICATION
Varpio J.
Released: January 23, 2019
[^1]: I also note that John Howard Society supervision does not particularly add anything to the supervision plan in this case given the presence of the two sureties.
[^2]: Although I note that no evidence was put forward regarding the contents of the package received by Mr. Fyfe.