RESTRICTION ON PUBLICATION
Pursuant to s. 517(1) of the Criminal Code, the court issued an order prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given or the representations made and the reasons issued on this bail review, until such time as, if a preliminary inquiry is held, the accused is discharged or if trial occurs it is completed.
WARNING
The court has issued an order prohibiting the “publication” of any information regarding this matter that would identify the young person in this proceeding. This non-publication order relates to a prohibition on the publication of the name of or any other information that would identify J.B. in this proceeding. This version of the decision has been edited to comply with this order and may be published.
This is ordered in accordance with
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction
COURT FILE NO.: DR(P) 1836/19
DATE: 20191119
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. J. Kingdon, for the Crown / Respondent
Respondent
- and -
HAYDEN PIERCE
Mr. C. Sheppard, for the Accused / Applicant
Applicant
HEARD: November 15, 2019 at Brampton
DECISION on bail review application
STRIBOPOULOS J.
Introduction
[1] Mr. Pierce applies under s. 520(1) of the Criminal Code to review the detention order made by Justice of the Peace M. Duggal on September 14, 2019.
[2] Mr. Pierce faces numerous criminal charges, each of which is rather serious. These include robbery with a firearm, pointing a firearm, two counts of possessing a firearm, two counts of being the occupant of a motor vehicle knowing there was a firearm in the vehicle, and two counts of possessing a loaded restricted firearm without having an authorization or licence.
[3] Following a bail hearing, the Justice of the Peace ordered Mr. Pierce’s detention. Although satisfied that Mr. Pierce’s detention was unnecessary to ensure his attendance in court or for the protection or safety of the public, the Justice of the Peace concluded that Mr. Pierce’s detention was necessary to maintain confidence in the administration of justice. On this application, Mr. Pierce seeks to challenge that conclusion and secure his release on bail.
[4] These reasons will proceed in four parts. In the first part, the allegations, as presented at the bail hearing, are summarized. The second part will briefly review the evidence at the bail hearing and the Justice of the Peace's reasons for ordering detention. The third part will explain the standard of review before addressing whether intervention by this court is justified in the circumstances of this case. In the final part, these reasons will address the merits of Mr. Pierce's application for release on bail.
I. Allegations at the Bail Hearing
[5] The Crown did not adduce evidence at Mr. Pierce’s bail hearing, “to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused”: Criminal Code, s. 518(1)(c).
[6] Instead, following the usual practice in Ontario’s busy bail courts, defence counsel consented to the Crown reading in a synopsis of the allegations: see Criminal Code, s. 518(1)(d). What follows is a summary of the allegations, as presented at the bail hearing.
[7] Shortly after midnight, on the morning of August 25, 2019, Mr. Pierce is alleged, along with two adult co-accused, and a young person, to have committed a gunpoint carjacking.
[8] The victim was seated in her vehicle, parked on the street, just out front of a hospital in the City of Mississauga. She was preoccupied with texting her friend, a security guard at the hospital who she was planning on meeting that evening. The victim reports seeing a black Honda Civic drive past her and park across the street.
[9] Shortly after that, two men approached her vehicle. The victim did not know these men; they were strangers to her. The driver’s side window of the victim’s vehicle was open. One of the assailants pointed a firearm at the victim through her open car window. He asked her where the keys were and told her to get out of the car. This same person then opened her car door, held the gun to her chest, and pulled her out of her vehicle. The two assailants then entered the victim’s vehicle and drove off. The victim reports that the black Honda Civic also left the location at the same time.
[10] At approximately 1:30 that morning, while patrolling a parking lot, in the City of Brampton, a police officer encountered the victim’s vehicle, along with the black Honda Civic. Mr. Pierce was driving the victim’s vehicle, while one of his co-accused was seated in the front passenger’s seat. Another co-accused, along with a young person, were in the black Honda Civic.
[11] The two vehicles fled the parking lot. The police officer pursued the vehicles to Murphy Road, a nearby residential street. The officer stopped the stolen vehicle. At 1:37 a.m., the passenger in the stolen vehicle was arrested without incident while still seated in that car.
[12] In contrast, Mr. Pierce fled from the stolen vehicle. He ran behind a home at 14 Murphy Road. The police arrested Mr. Pierce at 1:49 a.m. During a search of the backyard of the house at 14 Murphy Road, the police found a loaded .357 Magnum revolver. In various locations on the same property, the police also located a hat and sunglasses, presumably belonging to the driver of the stolen vehicle.
[13] During a search of the stolen vehicle the police found a satchel on the floor in the back-passenger area. In it, they located a second revolver which was loaded with five rounds of ammunition. During a search of the black Honda Civic police also found identification belonging to the victim.
II. The Decision at the Bail Hearing
[14] Given the charges involve firearms, Mr. Pierce had the burden of justifying his release on bail: see Criminal Code, s. 515(6)(a)(viii).
[15] At the time of his arrest, Mr. Pierce was just 18 years old. He does not have a criminal record. Before his arrest, he was living with his parents at the family’s home in Caledon, along with his two older sisters, who are both university students. At the time, Mr. Pierce was working on a part-time basis through an employment agency while pursuing his goal of becoming a professional soccer player.
[16] At his bail hearing, Mr. Pierce proposed his release with two sureties, his mother and father. Mr. Pierce’s parents are both teachers employed by the Toronto District School Board. They jointly own their home and have a substantial amount of equity in it. Neither of the proposed sureties has a criminal record. His parents were each prepared to pledge $15,000 to secure their son’s release from custody.
[17] Mr. Pierce’s parents both testified at the bail hearing. The Justice of the Peace was impressed by both potential sureties. The release plan proposed that Mr. Pierce would remain in the family’s residence at all times, except if he was in the immediate and continuous presence of either of his sureties. The Justice of the Peace had no concerns with the release plan. Ultimately, he was satisfied that Mr. Pierce’s detention was unnecessary on either the primary ground (s. 515(10)(a)) or the secondary ground (s. 515(10)(b)). In other words, that his detention was unnecessary to ensure his attendance in court or for the protection or safety of the public.
[18] Nevertheless, after giving careful consideration to the factors enumerated in s. 515(10)(c), in light of the circumstances of this case, as they stood at the bail hearing, the Justice of the Peace was not persuaded that Mr. Pierce's detention was unnecessary under the tertiary ground. In other words, he concluded that Mr. Pierce's detention was required to maintain confidence in the administration of justice.
[19] The apparent strength of the Crown’s case figured prominently in the analysis undertaken by the Justice of the Peace. In particular, it was alleged that Mr. Pierce was the driver of the stolen vehicle and that he ran when police attempted to stop the vehicle. Further, a loaded revolver was later found along his apparent escape path. These facts, taken together, strongly supported an inference that Mr. Pierce was likely the person who confronted the victim at gunpoint.
III. The Standard of Review
[20] The Criminal Code instructs that the reviewing judge is to either "dismiss the application" (ss. 520(7)(d)) or “if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted": Criminal Code, ss. 520(7)(e),
[21] The Supreme Court of Canada's decision in St-Cloud provides essential guidance on the operation of these provisions: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. The decision explains that the reviewing judge does not have an open-ended discretion to conduct a de novo bail hearing: St-Cloud, at paras. 92, 118-120.
[22] Instead, the reviewing judge may only intervene if satisfied that: (i) the original justice erred in law; (ii) the impugned decision was clearly inappropriate (i.e., if the original justice gave excessive or insufficient weight to relevant factors); or (iii) there is admissible new evidence that shows a material and relevant change in the circumstances of the case: St-Cloud, at paras. 120, 139.
[23] Mr. Pierce submits that this court is entitled to review the decision of the Justice of the Peace on all three bases. He argues that the Justice of the Peace erred in law, made a decision that was inappropriate, and that there is admissible new evidence that shows a material and relevant change in the circumstances of the case.
[24] In contrast, the Crown argues that Mr. Pierce has failed to establish any foundation for revisiting the initial bail determination. In ordering Mr. Pierce's detention, the Crown submits the Justice of the Peace gave careful and detailed reasons that are free of any legal error. Further, the Crown disputes that there is any new evidence before this court that gives rise to a change in the circumstances. It follows that this court is not entitled to revisit the decision ordering Mr. Pierce's detention.
[25] Ultimately, despite Mr. Sheppard's able submissions, having given careful consideration to the reasons given by the Justice of the Peace, I have concluded that his reasoning in ordering detention is not tainted by legal error. Nor am I satisfied, given the information and evidence that was before him at the bail hearing, that his decision was inappropriate. After correctly identifying the governing legal principles, referencing the relevant evidence and information before him, the Justice of the Peace ultimately concluded that Mr. Pierce's release on bail would undermine public confidence in the administration of justice.
[26] Given this, the authority of this court to consider whether or not Mr. Pierce should be released on bail depends on the existence of admissible new evidence that shows a material and relevant change in the circumstances of the case.
[27] St-Cloud provides direction on the admissibility of fresh evidence on a bail review. With some modification, it adopted a version of the four-prong test governing the admission of fresh evidence in conviction and sentence appeals (the “Palmer” criteria): St-Cloud, at para. 127-128; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. The same criteria apply on a bail review but with some flexibility given that bail hearings are generally expeditious and based on preliminary and incomplete information: St-Cloud, at paras. 127, 129.
[28] In the first part of the test, the reviewing judge determines whether the evidence was either: (i) not available at the time of the original hearing, i.e., it is truly new; or (ii) not tendered at the original hearing, despite its availability, “for some reason that was legitimate and reasonable”: St-Cloud, at para. 132-134. Absent either of these preconditions; the fresh evidence is inadmissible.
[29] The second Palmer criterion is whether the fresh evidence “bears upon a decisive or potentially decisive issue in the trial”: Palmer, at p. 775. In St-Cloud, the Court held that in the context of a bail hearing, the evidence need not bear on a critical trial issue; it need only be relevant to an issue arising from section 515(10) of the Criminal Code: St-Cloud, at para. 135. And since the “range of ‘relevant’ evidence will generally be quite broad” at the bail hearing, the Court observed, this criterion will “rarely be decisive in the context of an application for review”: St-Cloud, at para. 135.
[30] The Court in St-Cloud similarly noted the third Palmer criterion — that the evidence must be credible, i.e., reasonably capable of belief — must be interpreted in light of the relaxation of the rules of evidence at bail hearings: St-Cloud, at para.136; Criminal Code, s. 518(1).
[31] The fourth criterion requires the proposed fresh evidence be capable of affecting the result. In St-Cloud, the Court modified this test for bail purposes to require the applicant to show that the evidence “could have affected the balancing exercise engaged in by the justice” under section 515(10) of the Criminal Code: St-Cloud, at para. 137. The new evidence, in other words, must be “significant”: St-Cloud, at para. 138.
[32] If the new evidence meets the four criteria for admissibility, the reviewing judge may consider all of the evidence de novo, “as if he or she were the initial decision-maker”: St-Cloud, at para. 138.
[33] Mindful of the Supreme Court of Canada’s guidance in St-Cloud on the admission of fresh evidence on a bail review, I am satisfied that there is admissible new evidence that shows a material and relevant change in the circumstances of the case.
a) New Release Plan
[34] A significantly more stringent release plan is being proposed on this application than was suggested at the initial bail hearing. Although Mr. Pierce is still proposing his mother and father as sureties, they are now willing to pledge substantially higher sums of money to secure his release ($50,000 rather than $15,000). Their total combined exposure ($100,000), should Mr. Pierce breach his bail terms, represents a considerable portion of the equity in their family home.
[35] The greater financial exposure of Mr. Pierce’s parents will undoubtedly enhance the "pull of bail" on him. It can only serve to increase the likelihood of his strict compliance with the terms of release, to avoid "undue pain and discomfort" for his parents: R. v. Uxbridge Justices, ex parte Heward-Mills, [1983] 1 All E.R. 530, at p. 532; quoted with approval in Canada (Attorney General) v. Horvath, 2009 ONCA 732, at paras. 40-41.
[36] Beyond the conditions proposed at the original bail hearing, Mr. Pierce's parents are now also willing to incur the significant costs associated with GPS ankle bracelet monitoring. This will assist in ensuring that Mr. Pierce abides by a bail condition requiring him to remain inside his residence. The GPS ankle bracelet will send an alert to the monitoring company if Mr. Pierce leaves home (without advance notice from one of his sureties) or removes the ankle bracelet. The monitoring company then alerts the police. That said, the lag time between an apparent breach and the monitoring company notifying the police can vary. Depending on the circumstances, the delay can equal or even exceed 30 minutes.
[37] To be sure this same plan could have been put forward at the initial bail hearing. That said, the short time between an accused’s arrest and their bail hearing can be a period of considerable distress for them and their family. This is especially the case for someone who has never been arrested before. In such circumstances, it is hard to fault an accused person for not making the most tactically sound decisions. The rush to secure release may take precedence over postponing a bail hearing to put forward the best release plan. Recognizing all of this, the Supreme Court cautioned that courts applying the due diligence requirement in this context should do so with a fair degree of flexibility: St-Cloud, at para. 127.
[38] On behalf of the Crown, Mr. Kingdon disputes that the new release plan qualifies as a relevant and material change in circumstances entitling this court to revisit the initial bail decision. He notes that the Justice of the Peace did not have concerns with the release plan and did not think detention was justified on either the primary ground or secondary ground. It follows, Mr. Kingdon argues, that the new release plan is not enough to engage this court's authority to consider whether to grant Mr. Pierce bail. Ultimately, I do not find this submission persuasive.
[39] In applying the tertiary ground, a Justice of the Peace does not face a binary choice between ordering release or pre-trial detention. The focus is on maintaining confidence in the administration of justice. In making that decision, beyond the specifically enumerated factors, the justice must have regard to "all of the circumstances." The release plan forms a part of these circumstances. It may be an important consideration in deciding whether public confidence in the administration of justice can be maintained when an accused person is released: see R. v. Dang, 2015 ONSC 4254, at para. 58.
[40] Ultimately, I am satisfied the plan of release before me on this review is far more stringent than that which was put forward at the initial bail hearing. Although the two proposed sureties remain the same, there is a substantial increase in the amount they are both now willing to pledge. Second, and even more importantly, at the initial bail hearing, unlike the plan before me, there was no proposal for GPS monitoring. Of course, like any technology, GPS monitoring has its limitations and is no bail panacea. That said, it is a far more stringent form of supervision than any surety can provide on their own.
[41] Given this, a proposal for electronic monitoring may on its own constitute admissible new evidence that shows a material and relevant change in circumstances: see R. v. Thanigasalam, 2019 ONSC 3648, at para. 29; R. v. Karbalaei-Heydari, 2019 ONSC 5212, at para. 12. In so concluding, I respectfully disagree with the view that electronic monitoring is not at all relevant in assessing whether an accused’s detention is necessary to maintain confidence in the administration of justice under the tertiary ground: see e.g. R. v. Ma, 2015 ONSC 7709, at paras. 54-57.
[42] In R. v. Doucette, [2016] O.J. No. 852 (S.C.), Nordheimer J., when he was still a judge of this court, recognized the potential significance of electronic monitoring, observing at paragraph 5:
The electronic monitoring does change the calculus, however. While there are weaknesses in electronic monitoring when it comes to other issues relating to the issue of bail, electronic monitoring does significantly reduce the likelihood that an accused person will commit an offence if he or she is released. This is because the accused has to know that in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area. As is proposed in this case, that automatic alert goes directly to the police. This greatly reduces the window of opportunity for the commission of an offence.
The record before me suggests that the alert to police may be far from immediate; it can take as long as 30 minutes. Despite this, for the person on bail, just knowing that non-compliance with a home confinement condition will come to the attention of the authorities in relatively short-order will undoubtedly have a powerful deterrent effect.
[43] Given all of this, I am satisfied that a more stringent release plan, like that now being proposed, could have affected the Justice of the Peace’s balancing of the relevant considerations under s. 515(10)(c): St-Cloud, at para. 137.
b) The Crown’s Case After Disclosure
[44] At the bail hearing, information bearing on the strength of the case against Mr. Pierce came from the Crown reading in the allegations. Undoubtedly, the source of this information was a police report of some kind. By necessity, such reports are prepared hurriedly, sometimes while the police investigation remains ongoing because accused persons must be taken before the bail court within 24-hours: see Criminal Code, s. 503(1)(a).
[45] Mindful of these realities, Justice Trotter has observed that the “expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown”: Gary T. Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Thomson Carswell, 2010) at 3-7; see also St-Cloud, at para. 57, (quoting this same passage from the Law of Bail in Canada).
[46] It has been nearly three months since Mr. Pierce’s arrest. Unlike the lawyer who represented him at the bail hearing, defence counsel now has the benefit of some initial disclosure. The information gleaned from the disclosure suggests that the case against Mr. Pierce is different from and not nearly as strong as initially appeared at his bail hearing, at least as it concerns the most serious charges (i.e. pointing a firearm and robbery with a firearm). A summary of some of the key points gleaned from disclosure is necessary:
- During her police interview, the victim reported to police that beyond the two men who approached her, she only saw “one guy” in the black car. This could support an inference that there were only three parties to the carjacking. This suggests that a fourth individual could have joined the three assailants after the robbery, remembering that four people were arrested by police 90 minutes later because of their apparent connection to the stolen car and the black Honda Civic.
- The victim described the man who pointed the handgun at her and demanded that she exit her vehicle as being 5’4” or 5’5” tall. Mr. Pierce is over 6 feet tall, calling into question him being the person who forced the victim out of her car at gunpoint.
- The officer who first observed the stolen vehicle in a parking lot in Brampton, approximately 90 minutes after the robbery, at 1:33 a.m., initially noted seeing two occupants. Later in his notes, however, he mentions the driver and two-occupants.
- The stolen vehicle was not pursued, in the sense of there being a car chase. Rather, the officer followed the vehicle onto Murphy Road. The officer made observations from a distance before seeing the stolen vehicle and the black Honda Civic together. This officer believes that the person who ran was the driver of the stolen vehicle.
- A couple of minutes later, at 1:35 a.m., a second officer arrived at the location. He saw the stolen vehicle and the black Honda Civic parked in front of # 10 and #12 Murphy Road. He observed a man standing between the two vehicles (presumably Mr. Pierce). The second officer says that the man, who was standing between the vehicles, then took flight. He ran past this officer’s vehicle, and the officer made eye contact with him. This officer says that one of Mr. Pierce’s co-accused was the driver of the stolen vehicle.
- This same officer saw the man who ran, go between #12 and #14 Murphy Road. He could not say which of the two backyards the man entered.
- A third police officer arrived in the area at 1:41 a.m. He describes observing Mr. Pierce emerge from the backyards of homes located on Murphy Road, onto Triple Crown Drive, close to Airport Road. This location is a short distance from 14 Murphy Road, about eight houses up that same block. At 1:43 a.m., police took Mr. Pierce into custody. The officer who made eye contact with the man who ran then attended the second location and identified Mr. Pierce as being that same person.
- The loaded revolver was located by police, with the assistance of a police dog, at 2:01 a.m., in the backyard of 14 Murphy Road.
- On Murphy Road, in the vicinity of the two vehicles, the police arrested three people. Police arrested a young person, who was seated in the backseat of the stolen vehicle. The police also arrested a second co-accused, who one of the officers describes as the driver of the stolen vehicle. Police also arrested another co-accused, the driver of the black Honda Civic. This individual is the registered owner, along with his mother, of that vehicle.
- The two firearms recovered by police, the loaded revolver from the backyard at 14 Murphy Road, and the second loaded revolver located in the satchel found in the backseat of the stolen vehicle, have both been submitted for DNA analysis. The results of that analysis remain outstanding.
- A latent fingerprint impression, taken from the exterior of the driver’s side door of the stolen vehicle, has been matched to Mr. Pierce. Police did not find his fingerprints inside the stolen car.
There are significant differences between the case against Mr. Pierce presented at the bail hearing and the information since gleaned from Crown disclosure.
[47] Importantly, the allegations at the bail hearing left the distinct (but potentially erroneous) impression that Mr. Pierce was driving the stolen vehicle. It now appears that rather than driving the stolen car, Mr. Pierce may have only been speaking to the driver of that car before he took flight. His fingerprint on the exterior door of the stolen vehicle is consistent with him leaning into that vehicle to speak with the driver, and being the person observed standing between the two cars.
[48] The evidence from the victim, that two men approached her, and that there was only “one guy” in the black Honda Civic, supports an inference that three rather than four people participated in the armed robbery. Given that over 90 minutes elapsed between the robbery and police intercepting the two vehicles, it is conceivable that one of the four people police arrested joined the group at some point after the robbery.
[49] Mr. Pierce does not appear to have been observed inside either of the two vehicles. The victim described the person who brandished the gun as being just 5'4" or 5'5", while Mr. Pierce is over 6 feet tall. Combined, this evidence could be interpreted as consistent with Mr. Pierce joining the perpetrators at some point after the robbery.
[50] All of that said, the evidence remains compelling that Mr. Pierce was the person who took flight between the two houses. He was arrested a short distance away, emerging from some backyards. One of the police officers also identifies him as the person who ran. The presence of his fingerprint on the exterior of the driver's side door of the stolen vehicle supports him being the person who ran. In all of the circumstances, the case against Mr. Pierce, that he is the person responsible for the loaded revolver found in the backyard of 14 Murphy Road, remains rather strong.
[51] In my view, this court is required to receive the additional information presented during this bail review regarding the Crown’s case against Mr. Pierce. It readily satisfies each of the preconditions for receiving fresh evidence on a bail review identified in St-Cloud. First, this information was not available to Mr. Pierce at his initial bail hearing. Second, it is of a nature that could have influenced the decision of the Justice of the Peace. Third, the information comes directly from Crown disclosure, including the videotaped statement of the victim, and the notes of the police officers involved. Finally, the information is significant. The analysis of the Justice of the Peace largely proceeded on the assumption that the Crown had a strong case that Mr. Pierce was involved in a gunpoint carjacking and was very likely the person who brandished the firearm. This fresh evidence calls this into question. Therefore, it could have affected the balancing exercise engaged in by the Justice of the Peace under s. 515(10)(c).
[52] In summary, I am satisfied that the more stringent release plan now proposed, along with the fresh evidence regarding the Crown’s case, constitutes new evidence that shows a material and relevant change in the circumstances of the case. Accordingly, this court must assess whether or not Mr. Pierce has established that his continued detention is not justified.
IV. Decision on the Merits
[53] At the time of the alleged offences, Mr. Pierce was just 18 years old. He has turned 19 while in custody. He does not have a criminal record.
[54] The proposed sureties are Mr. Pierce’s parents. They are both teachers. Neither has a criminal record. Mr. Pierce’s father has served as a surety in the past. They both testified before the Justice of the Peace, who was very favourably impressed by each of them.
[55] Given their testimony at the bail hearing, along with their affidavits filed on this application, I am convinced that the proposed sureties are upstanding members of the community. Each fully appreciates the weighty responsibility they will be assuming as sureties. I do not doubt that both will conscientiously discharge their responsibilities. Further, each is prepared to pledge a substantial sum to secure their son’s release from custody. Like the Justice of the Peace, I am satisfied that they are capable of effectively acting as sureties.
[56] Close and careful supervision of Mr. Pierce by the two proposed sureties, combined with the use of electronic monitoring, convinces me that his detention is not justified on either the primary or secondary grounds. I am convinced that Mr. Pierce will attend court as required. Further, that the release plan eliminates the need for his detention to protect the safety of the public. There is no substantial likelihood that if released on bail he will commit a criminal offence or interfere with the administration of justice.
[57] The Crown concedes that Mr. Pierce has justified his release on both the primary ground and secondary ground. However, the Crown argues that Mr. Pierce has not justified his release under the tertiary ground.
a) Positions of the Parties on the Tertiary Ground
[58] The Crown emphasizes that it has a very strong case concerning the charge that Mr. Pierce possessed the loaded revolver found in the backyard 14 Murphy Road. It also argues that it has a strong case that Mr. Pierce was a party to the gunpoint robbery.
[59] The Crown notes that police found Mr. Pierce standing between the stolen vehicle and the black Honda Civic only 90 minutes after the robbery and that his fingerprint was on the stolen car. Along with his obvious connection to the discarded handgun, the Crown argues this gives rise to a strong basis for believing he was a participant in the armed robbery. Robbery with a firearm carries a mandatory minimum sentence of 5 years imprisonment: see Criminal Code, s. 344(1)(a)(i). In the circumstances, if convicted after trial of the robbery related offences, the Crown says Mr. Pierce would face a sentence much longer than that.
[60] Finally, the Crown emphasizes the epidemic of gun violence that has been plaguing Peel Region in recent years. Given all of these circumstances, the Crown submits that Mr. Pierce’s release on bail will seriously undermine public confidence in the administration of justice.
[61] In contrast, Mr. Sheppard argues that, given all of the circumstances, Mr. Pierce’s detention in custody is not necessary to maintain confidence in the administration of justice. First, he notes that Mr. Pierce’s youth and lack of any prior criminal record. Second, defence counsel emphasizes the very stringent plan of release, including two responsible sureties, who are pledging substantial sums, combined with the added supervision of GPS monitoring.
[62] Further, Mr. Sheppard argues that the Crown’s case does not appear to be nearly as strong as it seemed at the bail hearing. There are triable issues when it comes to Mr. Pierce’s alleged involvement with the most serious offences. Mr. Sheppard concedes that the case against Mr. Pierce is much stronger concerning the charge of possessing the loaded revolver located in the backyard of 14 Murphy Road. At the same time, he notes that if his client is only found guilty of that offence, he does not face a mandatory minimum sentence.
[63] Even if convicted of possessing a loaded revolver, if detained, Mr. Sheppard argues that his client will spend more time in custody than would be the case after sentencing, remembering the significant mitigating factors of his youth and lack of prior criminal record. Mr. Sheppard argues that a potential offender serving a sentence that is entirely out of proportion with his culpability would in itself undermine public confidence in the administration of justice.
[64] Given all of these circumstances, Mr. Sheppard argues that it would undermine public confidence in the administration of justice to order Mr. Pierce's detention.
b) Analysis of the Tertiary Ground in the Circumstances of this Case
[65] Subsection 515(10)(c) provides that the detention of an accused person in custody is justified:
If the detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including:
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[66] The Supreme Court of Canada has twice provided guidance on the proper interpretation of this subsection: see St-Cloud; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309. In my view, to varying degrees, each of the factors specifically enumerated in s. 515(10)(c) are operative in this case.
[67] First, the case against Mr. Pierce, especially involving the charges that he possessed a firearm without a licence (s. 92(1)) and possessed a loaded restricted firearm without an authorization or licence (s. 95(1)), appears strong. The available evidence suggests there is a compelling connection between Mr. Pierce and the loaded .357 revolver police found in the backyard of 14 Murphy Road.
[68] At the same time, the evidence against Mr. Pierce involving the far more serious charges appears somewhat weaker. On the available evidence, a trier of fact could conclude that only three people were involved in the robbery, not four. That none of the police officers observe Mr. Pierce inside either the stolen vehicle or the black Honda Civic could support an inference that he only met up with the perpetrators after the fact. Although he took flight from police, this is consistent with him running because he was carrying a loaded handgun rather than because of his involvement in the robbery.
[69] Second, the gravity of the charges that Mr. Pierce faces cannot be understated. Handguns are a plague not only in Peel Region but throughout the Greater Toronto Area. The news is awash on an almost daily basis with stories chronicling the tragic and senseless toll of handgun violence in our communities. The use of a handgun during a robbery, an inherently unpredictable crime, is especially grave and exceptionally dangerous.
[70] Third, the circumstances of the offences are most troubling. This crime victimized an entirely innocent member of the public. She was seated in her car on a public street outside of a hospital. Without warning, the victim was accosted at gunpoint and forced from her vehicle. A firearm then was pointed at her chest. The perpetrators next took her car and everything that she owned that was inside it. The impact of such a crime on the victim, as well as the entire community, is impossible to quantify. Brazen criminality of this nature erodes our collective sense of safety and security. Unchecked, crimes of this kind undermine the tranquillity of our communities and the most basic demands of public order.
[71] Finally, if convicted of these offences, Mr. Pierce undoubtedly faces a lengthy term of imprisonment. Robbery, with a prohibited or restricted firearm, carries a mandatory minimum sentence of five-years imprisonment: see Criminal Code, s. 344(1)(a)(i). The maximum sentence is life-imprisonment: see Criminal Code, s. 344(1)(b). If convicted after trial, despite his youth and lack of criminal record, Mr. Pierce will likely face a sentence in the range of 6 to 8 years of imprisonment.
[72] At the same time, the case against Mr. Pierce on the most serious of the charges appears to be entirely circumstantial and far from overwhelming. The charge for which he faces the greatest jeopardy, possessing a loaded restricted firearm (for the handgun found in the backyard of 14 Murphy Road), no longer carries a mandatory minimum sentence: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. That said, despite his youth and lack of a criminal record, a sentence in the range of three years imprisonment seems likely.
[73] In St-Cloud, the Supreme Court rejected that a detention order must always follow where the four circumstances set out in subsection 515(10)(c) weigh in favour of that result: see St-Cloud, at paras. 66-69, 87. The Court pointed out that such an interpretation would ignore the subsection’s non-exhaustive wording: St-Cloud, at para. 68. The four factors must be considered “together with any other relevant factors” to determine “whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice”: St-Cloud, at para. 69; see also at para. 87.
[74] Therefore, beyond the factors specifically enumerated in s. 515(10)(c), I am required to take into account “any other relevant factors.” In my view, in the circumstances of this case, these must include the following considerations.
[75] First, there is the release plan put forward by Mr. Pierce. Under that plan, Mr. Pierce must remain inside his residence. He will be under the supervision of both his parents. His parents, who are each responsible and law-abiding people, are pledging a substantial portion of the equity in the family home to secure his release. Finally, there is the use of GPS monitoring, which will provide an added assurance of compliance with the home confinement condition.
[76] Second, if ordered detained but not convicted of the most serious charges, it seems likely that Mr. Pierce’s time in pre-trial detention will exceed the length of any sentence the court might impose. As noted in R. v. White, 2010 ONSC 3164, “public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if [they were] convicted”: para. 10; see also R. v. Myers, 2019 SCC 18, at para 51 (quoting this excerpt from White with approval).
[77] Third, there is evidence that Mr. Pierce is not doing well in custody. Due to his age and his size, he is the target of bullying by older and physically larger inmates. Beyond the significant toll on his mental and physical well-being, there is also evidence that his detention is compromising his relationship with his parents. Due to lockdowns, his father has been turned away almost half the time when he has attended the detention centre for visits.
[78] To be sure, such effects are an unfortunate and inherent part of pre-trial detention: see Martin L. Friedland, Detention Before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (Toronto: University of Toronto Press, 1965) at p. 172; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 66. Nevertheless, they are undoubtedly also factors deserving of some consideration in deciding whether or not pre-trial detention is necessary to maintain public confidence in the administration of justice in the circumstances of a particular case.
[79] In St-Cloud, the Supreme Court also expanded upon the make-up of the “reasonable person” whose perception is key in deciding whether a denial of bail is necessary to maintain confidence in the administration of justice. The Court explained that the “reasonable person” is a “thoughtful person, not one who is prone to emotional reactions” or “whose knowledge of the circumstances of the case is inaccurate” or “who disagrees with our society’s fundamental values”: St-Cloud, at para. 80. That said, the reasonable person “is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused”: St-Cloud, at para. 87.
[80] A final observation regarding the Supreme Court’s decision in St-Cloud. The Court noted that it could undermine public confidence in the administration of justice not only where a justice orders release when detention is justified, but also when the court orders detention where the circumstances do not warrant it: St-Cloud, at para. 86-87. “[I]t is important not to overlook the fact,” the Court stressed, “that the release of accused persons is the cardinal rule and detention, the exception”: St-Cloud, at para. 70
[81] With the benefit of the Supreme Court of Canada's guidance on the proper application of s. 515(10)(c), I have carefully considered all of the circumstances of this case, including the factors enumerated in s. 515(10)(c)(i)-(iv). This analysis has been undertaken to assess whether Mr. Pierce's detention is necessary to maintain confidence in the administration of justice. Unfortunately, there is no precise formula the court can apply in making this determination. Rather, the law demands a deliberate, reasoned and principled exercise of judicial discretion.
[82] Ultimately, after considering all the relevant factors, I am satisfied that Mr. Pierce's release on bail would not cause a reasonable person to lose confidence in the administration of justice. In so concluding, I recognize that the "reasonable person" in this context is someone informed about the philosophy of the bail provisions found in the Criminal Code, who appreciates the constitutional rights to be presumed innocent and not to be denied reasonable bail without just cause. In my view, such a person, aware of all the circumstances of this case, including the stringent bail terms this court will be imposing, would not lose confidence in the administration of justice by Mr. Pierce's release on bail.
Conclusion
[83] Accordingly, this court Orders Mr. Pierce’s release on bail, subject to the following conditions:
With two named sureties, Jamie Pierce and Nicolle Correia, each pledging $50,000, with no deposit;
You are to reside with your sureties, Jamie Pierce and Nicolle Correia, at 48 Cirrus Crescent, Caledon, Ontario.
You are to abide by the rules of the home, established by your sureties, and to take direction from each of them.
You are to be subject to GPS monitoring by Recovery Science Corporation (RSC) which shall include:
i. Entering RSC’s Participant Agreement and comply with its terms;
ii. Wearing a GPS ankle bracelet at all times;
iii. Permitting RSC to install supplementary equipment and to inspect, replace, and maintain equipment as it deems necessary;
iv. Complying with the RSC leave notification and charging requirements; and
v. Cooperating fully with RSC staff.
You are to provide notice to RSC within 3 hours of any termination or variation in the terms of your release. Notwithstanding any order terminating or varying these terms, you shall continue to abide by the terms relating to RSC’s GPS monitoring until RSC confirms it has received notice of the termination or variation directly from the Crown, the police, or court staff.
You are to remain inside your residence, or on the property of your residence, at 48 Cirrus Crescent, Caledon, Ontario, at all times, except:
i. If you are in the direct and continuous presence of one of your named sureties;
ii. In the case of a personal medical emergency, in order to travel directly to, while at, or returning from hospital;
iii. To travel directly to court for scheduled court appearances, while at court for scheduled court appearances, and while travelling directly home after scheduled court appearances;
- You are not to have any contact or to communicate in any way, directly or indirectly by any physical, electronic, or other means, with Anthony Powell, Shane D’Souza and J.B., except:
i. Any incidental contact, while at court, for scheduled court appearances;
ii. While in the immediate and continuous presence of legal counsel, for the purpose of preparing a defence.
You are not to have any contact or to communicate in any way, directly or indirectly by any physical, electronic, or other means, with Dalia Nayef.
You are not to possess any weapons as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted device, ammunition or explosive substance, or anything designed to be used or intended for use to cause death or injury or to threaten to intimidate any person);
You are not to apply for any authorization, licence, or registration certificate for any weapon as defined by the Criminal Code.
Signed: “J. Stribopoulos J.”
Released: November 19, 2019
COURT FILE NO.: DR(P) 1836/19
DATE: 2019-11-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
HAYDEN PIERCE
Applicant
DECISION on bail review application
Stribopoulos J.
Released: November 19, 2019