Her Majesty the Queen v. Dulo Basquin

COURT FILE NO.: CR-19-13385-BR DATE: 2019/12/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen The Crown

– and –

Dulo Basquin Defendant

Counsel: S. Donoghue for the Crown J. Boss for the Defendant

HEARD: November 13, 2019 (at Ottawa)

s. 520 BAIL REVIEW DECISION

KANE J.

[1] This is an application pursuant to s. 520 of the Criminal Code of Canada to review the July 22, 2019, decision of Judge Dumel denying bail to Mr. Basquin.

[2] Mr. Basquin has been charged with:

(a) forceable seizure of the victim without lawful authority - s. 279(2);

(b) stealing from the victim while armed with an offensive weapon - s. 343(d);

(c) break and entering a residence and committing robbery therein with a firearm - s. 348(1)(b);

(d) wearing a ski mask with the intention to commit an indictable offence - s. 351(2);

(e) conspiracy with others to commit theft with an offensive weapon, by agreeing to rob the victim - s. 465(1)( c);

(f) use of a firearm, namely a hand gun, while committing theft with an offensive weapon - s. 85(1)(a);

(g) pointing a firearm, namely a hand gun at the victim - s. 87(1);

(h) possession of a hand gun for the purpose of committing an offence – s. 88(1); and

(i) possession without lawful excuse of a prohibited, a restricted firearm or a non-restricted firearm, namely a hand gun, without a license permitting such possession – s. 91(1).

[3] The ten-day trial of the charges against Mr. Basquin, Ms. Costanzo and Mr. Mackenson regarding the February 20, 2019 robbery with weapons of an individual in his home is scheduled to commence on May 4, 2020. Mr. Basquin has been held in custody at the Ottawa – Carleton Regional Detention Centre since his arrest on or about March 21, 2019.

[4] The grounds of this application are:

(j) that there has been a material change in circumstances in that Mr. Basquin is now able to offer a cash deposit of $3,000 through and in addition to his two proposed sureties; and

(k) that the Judge erred in denying bail to Mr. Basquin on the tertiary grounds under ss. 515 (10)(c) of the Code on July 27, 2019.

Background

[5] The participants in this robbery were three males and two females who included Mr. Jean-Phillipe, Ms. Costanzo and allegedly Mr. Basquin.

[6] The three black males during the robbery wore masks over their face and latex hand gloves. It is alleged that the two females were in the apartment and granted access therein to the three males to carry out the robbery.

[7] It is alleged that the victim was ordered to the ground in his apartment and that a hand gun and knife were held to the victim’s head to intimidate while tape was used to bind his hands and cover his mouth. The thieves thereupon stole $700, a telephone and a television from the victim.

[8] Mr. Jean-Phillipe and a Mr. Duffaut were arrested immediately after the February 20, 2019 robbery.

[9] Mr. Jean-Phillipe admitted his involvement in the robbery to police, including holding a knife to and binding the victim’s hands and covering his mouth with tape, and was thereupon charged. He admitted that he wore a mask and Playtex gloves during the robbery. Mr. Jean-Phillipe also advised police that he and Ms. Costanzo planned this robbery which included obtaining the face masks worn by the males and the duct tape used in the robbery.

[10] Initially the identity of the two other males participating in the robbery were unknown. Mr. Jean-Phillipe subsequently gave a video statement to police in which he stated that Mr. Basquin participated in the robbery during which he held a gun to the victim’s head to intimidate him. The Crown’s case against Mr. Basquin is based solely upon this statement to police by Mr. Jean-Phillipe and not other evidence.

[11] Another black male was arrested immediately after the February 20, 2019 robbery but was not charged. This individual upon his arrest was in possession of a mask and latex gloves.

[12] The Crown apparently severed the charges against Mr. Jean-Phillipe based on his subsequent identification of Mr. Basquin’s involvement in the robbery. The status of the charges against Mr. Jean-Phillipe and whether he has been held in custody since February 20, 2019 is not in evidence.

[13] It is alleged that Mr. Mackenson was a participant in this robbery and that he acted as a lookout in the apartment as the robbery took place. The status of his bail or detention is not in evidence.

[14] Judge Dumel who denied bail to Mr. Basquin on July 27, 2019, despite her having granted bail on terms of a recognizance to Ms. Costanzo on March 5, 2019.

Original Bail Plan Proposed

[15] Mr. Basquin in seeking his release on bail on July 22, 2019, presented a bail plan pursuant to ss. 515 (2)(c) with conditions which included:

(a) two sureties who are a married couple and who have a twelve-year-old child;

(b) such sureties were to sign a $2,000 bond;

(c) he was to reside with and remain in the residence of his sureties at all times, unless in the company of one of those sureties; and

(d) the male surety has several older children who reside at a different address and who are friends of the defendant. The male surety was to spend the day and evening with these other children at their home as he is currently on sick leave. The defendant was to accompany and remain with the male surety during the day and then be joined there by the female surety after her work until their return for the night to their home with their child and the defendant.

July 22, 2019 Denial of Bail

[16] The Crown opposed bail being granted to Mr. Basqin upon the secondary and tertiary grounds under s. 515 (10) at the previous bail hearing.

[17] Justice Dumel quickly dismissed the Crown’s argument that bail be denied on the secondary ground as she determined that detention was not necessary in order to protect the public or due to the risk the defendant would commit some other events one on bail. The conclusion is not surprising given the absence of a criminal record and the proposed bail terms which included virtual house arrest unless accompanied by one of his sureties, their $2,000 bonds and the other conditions proposed.

[18] Bail was denied however on the tertiary ground under s. 515(10)(c), which provides that detention was only justified if custody was necessary to maintain confidence in the administration of justice having regard to all circumstances including:

(a) the apparent strength of the prosecution’s case;

(b) the gravity of the offence;

(c) the circumstances surrounding the commission of the offence, including whether a firearm was used; and

(d) the fact that if convicted, the defendant would be liable for a potentially long term of imprisonment and when a firearm was used, would be liable to imprisonment for three years or more..

[19] Judge Dumel as to these four factors noted that:

(a) the Crown, as to the strength of its case, submitted it had a very strong case based upon Mr. Jean-Phillipe’s statement that Mr. Basquin was present and participated in the home invasion and robbery, versus the defence submission that Mr. Jean-Philippe evidence is that of an unsavoury, involved and charged participant in the robbery who was simply giving self-serving information to police;

(b) as to the gravity, the charges allege a home invasion and robbery that was committed with significant violence including the use of a revolver by the defendant and a knife by Mr. Jean-Phillipe;

(c) the surrounding circumstances included the use of a firearm, the planning of the robbery including attending thereon with weapons and tape to bind the victim and the participation by some as lookouts; and

(d) the fact that the defendant if convicted, was likely to receive at least a penitentiary term of incarceration.

[20] Judge Dumel, quoting from the decision in R. v. Mordue, 2006 31720 (ON CA), 2016, 215 OAC 125, concluded that:

(a) the elements as to the gravity of the offences, given that gun violence is on the rise and problematic in this community, the circumstances surrounding the alleged commission of the offences and the potential of a lengthy term of imprisonment if convicted, have “maximum force”;

(b) that while there may be triable issues, the strength of the Crown’s case involving a witness who states that Mr. Basquin was in the apartment and essentially leading this home invasion is “significant” and when considered with the other three factors, is “sufficiently strong”; and

(c) that detention was necessary in order to maintain the “repute of the administration of justice and confidence in the administration of justice”.

Analysis

Whether to Grant S. 520 Review

[21] A reviewing judge must first determine whether it is appropriate to exercise the power to review pursuant to s. 520: R. v. St. Cloud, 2015 SCC 27, 2015 S.C.J. 27, paras. 118 and 120.

[22] The court on a bail review may amend the prior bail order if:

(a) new evidence is submitted by the applicant as permitted by s. 520, if that evidence shows a material and relevant change in the circumstances of the case;

(b) the prior bail order contained an error in law; or

(c) the justice in the previous order gave excessive weight to one relevant factor or insufficient weight to another factor: St. Cloud, supra, para. 121.

[23] The defendant submits the s. 520 review power should be exercised based on:

(a) new evidence consisting of the amended and proposed increased bail terms;

(b) the new or additional evidence of another black male in possession of a face mask and wearing latex gloves being arrested on February 20, 2019 following the robbery but was not charged, thereby creating a reasonable doubt as to the Crown’s case against the defendant; and

(c) errors in the July 22, 2019 decision denying bail.

Criteria As To New Evidence

[24] The four criteria from Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775 are relevant, with any necessary modifications, to determine what constitutes new evidence on a s. 520 review application.

[25] The four criteria for the admission of new evidence pursuant to Palmer, supra, 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 it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: St. Cloud, para 128.

[26] The Palmer criteria:

(a) must however be applied flexibly, just as the rules of evidence are a relaxed in the context of a bail hearing pursuant to s. 518: St. Cloud, supra, para. 129.

(b) must not be applied in a manner that delays or needlessly complicates the release process, which by its very nature, generally requires an expeditious and flexible procedure; and

(c) such criteria therefore serve as guidelines for the reviewing judge, must be applied flexibly and must not have the effect of creating a procedural straitjacket that would interfere with the administration of justice: St. Cloud, paras. 129 and 138.

First Criteria

[27] The due diligence criterion should not be applied as strictly in criminal matters as in civil cases: St. Cloud, para. 131 and Palmer, at p. 775.

[28] A reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable St. Cloud, para. 132.

[29] The amendments now proposed to the original bail plan are that the sureties would deposit $3,000 as security, rather than the signing of a $2,000 bond as originally proposed.

[30] That proposed deposit of $3,000 as security is not insignificant given the current obligations as to children and the limited income levels of $1,500/month disability income for the male surety and $45,000/annum for the female surety. Such deposit of money is also higher on the s. 515 (2) ladder scale.

[31] It is unknown whether the defence at the bail hearing knew of the arrest of another black male wearing latex gloves and in possession of a face mask, which Mr. Jean-Phillipe told police he also wore during the robbery, and the decision by police to not charge this individual. This evidence however was not cited at the bail hearing as a basis which diminished the strength of the Crown’s case.

[32] The two categories of new evidence meet this first criterion.

Second Criteria

[33] The evidence on a s. 520 bail review application need not relate to a trial issue. It is sufficiently relevant if it relates to bail, an issue under s. 515 (10) or as to s. 520.

[34] This second Palmer criterion therefore will rarely be decisive in the context of an application for review under s. 520 and s. 521 as to which the range of “relevant” evidence will generally be quite broad: St. Cloud, para. 135.

[35] The proposal to post $3,000 as security relates to the issue of bail.

[36] The evidence as to another black male wearing latex gloves and in possession of a face mask being arrested and not charged relates to the trial issue of reasonable doubt as to whether the defendant committed these offences.

[37] The two categories of new evidence meet this criterion.

Third Criteria

[38] The third criterion requiring the evidence must be credible, as in that it is reasonably capable of belief, is a reduced requirement given the relaxation of the rules of evidence at the bail stage and s. 518(1)(e) which provides that “the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”: St. Cloud, para. 136.

[39] The two categories of new evidence meet this criterion. Judge Dumel in dismissing the need for detention on the secondary ground found the sureties credible. The evidence as to the other black male arrested but not charged comes from the Crown.

Fourth Criteria

[40] The fourth Palmer criterion that the evidence, if believed and in consideration of all the other evidence, could likely have affected the result, is modified. The new evidence must be such that it is reasonable to believe that it, having regard to all the relevant circumstances, could have affected the balancing exercise engaged in by the judge denying bail, under s. 515(10). The new evidence must therefore be significant: St. Cloud, para 136.

[41] The proposed amended bail plan is relevant evidence related to whether the defendant should remain in custody or be granted bail. The amendment of depositing $3,000 by the sureties rather than the original proposal of a $2,000 bonds, signals the seriousness of the proposed sureties. The limited amount of the $3,000 to be posted must be considered in light of the limited financial means of the sureties, including the male surety’s current disability status.

[42] It is doubtful however that that the posting of such amount by the sureties would have impacted the decision denying bail, as that denial was based on the tertiary ground under s. 515(10)(c), namely that release on bail would impair public confidence in the administration of justice.

[43] The evidence of another male being arrested and in possession of a face mask and wearing latex gloves, not argued at the previous bail hearing, is relevant to the trial issue of reasonable doubt and may well have impacted the decision to deny bail.

[44] If the new evidence meets the four criteria for admissibility, the reviewing judge under s. 520 is authorized to repeat the analysis under s. 515(10) including the balancing exercise and determine whether detention of the accused is still justified: St. Cloud, para. 138.

[45] The Palmer criteria as to the introduction of new evidence are met. The decision denying bail in addition also contains a number of errors as indicated below. The court for both of those reasons will therefore conduct the s. 515(10)(c) analysis once again.

Underlying Legislation and Rights Not Referred To

[46] The oral decision denying bail does not reference or reflect consideration of the following legislation, rights of the accused as to bail and the problematic increasing trend of bail being denied pending trial.

[47] Any person charged with an offence has the right to not be denied reasonable bail without just cause pursuant to ss. 11(e) of the Canadian Charter of Rights and Freedoms, part one of the Constitution Act, 1982.

[48] This ss. 11(e) Charter right to not be denied reasonable bail without just cause is based upon the cornerstone principle of presumption of innocence under Canadian criminal law, as now guaranteed by ss. 11(d) of the Charter: St. Cloud, para. 70.

[49] Section 11(e) of the Charter created the entitlement to be granted reasonable bail unless there is just cause to do otherwise.

[50] That ss.11(e) Charter entitlement to bail establishes:

(a) the right not to be denied bail without just cause; and

(b) the right to reasonable bail, in terms of any conditions thereto: St. Cloud, para. 27.

[51] S. 515(1) begins in directing, subject to the other provisions of s. 515 and absent a plea of guilty, that an accused charged with an offence, other than those listed in s. 469, be released on recognizance unless the prosecutor shows cause why detention is justified or any other order under s. 515 should be made. Such other non-detention orders include the ladder or increasing requirements attached to an order of release under s. 515(2).

[52] Section 515(2) again directs the defendant be released with elevated requirements, unless the prosecutor shows cause why detention in custody is justified.

[53] Section 515 (3) directs the court to not impose any of the higher restrictions under ss. 515(2)(b) to (e), unless the prosecutor shows cause why an order under the immediately preceding paragraph should not be made.

[54] The Supreme Court in R. v. Antic 2017 SCC 27 as to the ladder principles in sections 515 (2) and (3), stated those Code provisions indicate that release is favored at the earliest reasonable opportunity and on the least onerous grounds: para. 29.

[55] Section 515(10)(c) states that detention in custody is justified only on the primary, secondary and or tertiary ground. [emphasis added]

[56] The above provisions in the Code, repeatedly indicate that an accused be released, or released on the lowest necessary terms and not be detained in custody which is prohibited, unless the prosecutor establishes that pre-trial detention is justified considering all the circumstances of the case, including those circumstances listed in s. 515(10).

[57] The Supreme Court in Antic listed principles and guidelines which must be adhered to in a contested bail hearing which include the following:

(a) accused persons are constitutionally presumed innocent and the corollary to the presumption of innocence is the constitutional right to bail;

(b) section 11(e) of the Charter guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms;

(c) save for exceptions, an unconditional release on an undertaking pursuant to ss. 515(1) is the default position when granting release;

(d) pursuant to the ladder principle, release is favored at the earliest reasonable opportunity and, having regard to the statutory criteria for detention, on the least onerous grounds;

(e) each rung of the ladder must be considered individually and must be rejected with justification before moving to a more restrictive form; and

(f) a recognizance with sureties is one of the most onerous forms of release.

[58] As to the problematic increasing trend in denying bail before trial notwithstanding the rights and protections as to bail legislated in the Charter, the Supreme Court in Antic stated:

Settling the proper interpretation of s. 515(2)(e) in the schema governing the forms of release does not resolve one concerns that underlines this case. The bail review judge’s errors appear to be symptomatic of a widespread inconsistency in the law of bail. One commentator, Kent Roach, observers an element of incongruity in the bail system: “although the Charter speaks directly to bail, the bottom line so far has been that remand populations and denial of bail have increased dramatically in the Charter era”: K. Roach, “A Charter Realty Check: How Relevant Is the Charter to the Justness of Our Criminal Justice System?” 2008, 40 S.C.L.R. (2d) 717, at p. 727. (para 64)

[59] It is not uncommon that the prosecution’s submissions in seeking detention at a bail hearing are limited to attempting to establish that detention is justified under the primary, secondary and/or tertiary ground pursuant to ss. 510(10)(c), without reference to the presumption of innocence, the rights of the defendant to bail and the above principles.

[60] A court’s obligation however requires it’s consideration and the balancing of the defendant’s above broader rights as to bail, which the decision denying bail does not include.

[61] All courts have busy schedules. That and the often informal nature of bail hearings as occurred in this case, do not reduce the rights of the person at risk of pre-trial detention with its detrimental impact, the risk and damage resulting from often lengthy pre-trial incarceration in the event of an acquittal, nor the responsibility of the court to record its consideration of the above bail rights of the defendant and the prohibition against pretrial detention, unless justified under s. 515 (10).

[62] The court erred in not considering the above principles as to bail.

[63] After deciding that pre-trial custody was not justified on the secondary ground, the court also erred limiting its consideration on the tertiary ground to the four circumstances listed in s. 515 (10) (c) as if the rights of Mr. Basquin to bail were to be determined solely as to those circumstances, without reference to his above rights to bail, without regard to other relevant circumstances which included the determination that detention was not necessary on the secondary ground: St. Cloud, para 69.

Detention Unjustified on Secondary Ground

[64] Judge Dumel determined that detention was not justified on the secondary ground “as to a risk or substantial likelihood of committing an offence if released”, because:

(a) the defendant had no prior criminal record; and

(b) based on the proposed bail plan involving two sureties and virtual house arrest.

[65] The absence of risk as to the safety of the public, the victim and witnesses, the absence of likelihood the defendant would commit an offence if released based upon the supervision and resulting protection by the proposed bail plan, together with the absence of any prior criminal record, led to the dismissal of the Crown’s request for detention on the secondary ground. While not determinative, these same elements are among the circumstances to consider in determining whether detention is justified on the tertiary ground under s. 515(10)(c).

Whether Detention Necessary to Maintain Confidence in System of Criminal Justice – S. 515 (10) (c)

[66] Section 515(10) provides that detention in custody is only justified on the primary, secondary or tertiary grounds. (emphasis added)

[67] Detention is supposed to only be justified in rare cases as a result of the proper application of s. 515(10)(c): St. Cloud, para. 50. (emphasis added)

[68] The release of an accused person on bail with reasonable terms is the cardinal rule in Canadian criminal law. Detention in custody is the exception to the cardinal rule that an accused be released on reasonable bail terms, unless there is just cause requiring custody: St. Cloud, para. 70.

[69] The issue therefore was and is whether, based on all the circumstances, this case constitutes a rare or exceptional instance beyond the cardinal rule of release on reasonable terms of bail pending trial, or whether the exception of detention in custody was justified under s. 515(10)(c).

[70] The Supreme Court in St. Cloud summarized the essential principles as to the application of tertiary ground in ss. 515(10)( c) as follows:

▪ Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.

▪ Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

▪ The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.

▪ A court must not order detention automatically even where the four listed circumstances support such a result.

▪ The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

▪ The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis.

▪ 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 balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

▪ To answer this question, the court must adopt 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. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

▪ This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified: para 87. (emphasis added)

S. 515 (10) (c) Elements

Strength of Crown’s Case – S. 515(10)(c)(i)

[71] The expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown: St. Cloud, para. 57.

[72] The Crown called no witnesses at the bail hearing. Its evidence consisted of a police charge sheet which includes a prosecution summary as well as a subsequent arrest details/bail report. This charge sheet and prosecution summary do not identify or refer to the defendant and refers only to Mr. Jean-Phillipe, Ms. Constanzo, Mr. Makenson and an unidentified male who held a revolver.

[73] The Crown in argument of this application does not dispute that its case against Mr. Basquin is limited to and dependent upon Mr. Jean- Phillipe’s subsequent police statement that the defendant was the unidentified male who held a revolver.

[74] The defence submits Judge Dumel summarily discounted what will be the credibility issue at trial of Mr. Jean-Phillipe’s identification of the defendant given his admission that he and Ms. Constanzo planned and organized the robbery, that he held the knife and participated in this robbery and his undoubted goal to minimize his criminal liability therein.

[75] In his subsequent identification of the defendant as the unidentified holder of a revolver, Mr. Jean- Phillipe according to the subsequent arrest details/bail report, further points responsibility towards Mr. Basquin in stating that it was the defendant who directed him as the robbery was being carried out. The defence submits this subsequent identification of the defendant and Mr. Jean-Phillipe’s allegation of the defendant’s leadership responsibility conflicts with his original admission of his planning and preparation for this robbery with Ms. Costanzo and his undoubted wish to minimize the judicial impact of his admitted offences, which will place his credibility in issue at trial. It is submitted that these factors diminish the strength of the Crown’s case on the original bail hearing and on this application.

[76] Judge Dumel, without further articulation or analysis, simply states that while there may be issues at trial, the strength of the Crown’s case is “significantly strong” and in consideration of that, together with the other s.515(10)(c) elements which she determined were at a maximum level, justified detention to maintain confidence in the administration of justice.

[77] The defendant now points to the evidence not argued on the bail motion, that police on February 20, 2019, arrested another male individual who then had possession of a mask and duct tape like those used by Jean-Phillipe during the robbery but did not charge that other male. The Crown to prove its case against the defendant at trial beyond a reasonable doubt, will be required to establish this evidence does not raise a reasonable doubt as whether this other male arrested but not charged, was the male accompanying Mr. Jean-Phillipe during the robbery. This additional evidence raises a question as to the strength the Crown’s case against the defendant.

[78] The Supreme Court in St. Cloud as to strength of the Crown’s case, indicates pre-trial detention will usually be ordered if the crime is serious or violent, if there is overwhelming evidence against the accused and if the victim was vulnerable, para 88. (emphasis added)

[79] Judge Dumel acknowledged there were issues as to the strength of the Crown’s case. That acknowledgement plus the arrest of another male in possession of similar mask and gloves, indicates this is not a case of “overwhelming evidence” against the defendant.

Gravity of Offence

[80] The justice under s. 515(10)(c)(ii) must determine the “objective” gravity of the offence charged in comparison to the other offences in the Code: St. Cloud, para 60. (emphasis added)

[81] The bail judge held that the gravity of these offences and particularly the home invasion to commit robbery, involving unexplained “significant violence” and the use of a fire arm and a knife to intimidate by the defendant and Mr. Jean-Phillipe, resulted in this ss. 515(10)(c)(ii) element being at “maximum force”.

[82] Punishment under the Code if convicted of these offences include lengthy maximum periods of incarceration as follows:

a. S. 279(2) – up to ten years;

b. S. 343(d) and s. 344 (a.1) – four year minimum and up to life imprisionment;

c. S. 348 (1) (b) – imprisonment up to life;

d. S. 351 (2) – imprisonment up to ten years; and

e. S. 85 (1) (a) - a minimum of one year and up to a maximum of 14 years.

f.

[83] The high end of the above potential sentences indicates the seriousness of these charges if convicted.

[84] These offences however did not result in physical harm or injury to the victim. The defendant in addition was 20 years old at the time and has no prior criminal record Those factors in the case of conviction, would likely result in a lower period of incarceration within the above ranges.

[85] The determination by the judge that the gravity of these offences was at “maximum force” is not an error, but may be overstating the gravity on the facts in this case.

Surrounding Circumstances of Offense

[86] The bail judge as to surrounding circumstances points to the brandishing of a fire arm and knife, directing the victim to the floor, the taping of the victim’s hands and mouth. It was however Mr. Jean-Phillipe who admitted that he and Ms. Costanzo planned the robbery and obtained the tape and masks used and that he held a knife to the victim as he bound his hands and mouth.

[87] That the four listed circumstances to be considered in the s. 515(10)(c) analysis are among but not the only circumstances to be considered, as stated by Parliament in directing the court to consider “all circumstances, including” and thereupon lists the four specific circumstances to consider: St. Cloud, para. 68.

[88] Circumstances surrounding the commission of the offence that might be relevant under this s. 515(10)(c) element include the use of a firearm, whether the offence involved violence, heinous or hateful conduct, involved planning and the defendant’s role therein, whether it was committed in a domestic context, whether it was carried out by a criminal gang or terrorists, involved a vulnerable victim, and permit consideration of mitigating and aggravating factors considered on sentencing: St. Cloud, para. 61.

[89] There was no evidence of:

(a) hateful conduct;

(b) a vulnerable victim who was subjected to physical violence;

(c) planning of this robbery by the defendant; or

(d) this robbery being done by a criminal gang.

[90] Public fear or concern for safety as referred to by Judge Dumel, is not the sole or determinative consideration as to “public confidence” under s. 515(10)(c), however such a concern is a relevant element to be considered as part of the tertiary analysis: Mordue, paras. 23 and 24, and St. Cloud, para. 73.

[91] The strength of the bail plan proposed and resulting absence of concern as to safety which led to the dismissal of the Crown’s request to detain on the secondary ground related to whether public fear or concern for safety would result if bail was granted. Those elements are absent in the court’s analysis of circumstances as to whether detention should be ordered on the tertiary ground.

[92] The same and now enhanced proposed bail plan, although not the same issue, nor determinative of the tertiary ground, is a relevant consideration as to whether detention is justified and necessary to maintain the public’s confidence in the administration of justice.

[93] It was an error to not consider these elements in determining that pre-trial detention was justified to maintain public confidence in the administration of justice.

[94] The risk of an accused being denied bail resulting in pre-trial custody and then being acquitted at trial, also risks undermining a reasonable person’s confidence in the administration of justice: St. Cloud, para. 87.

[95] The defendant then being 20 years of age, the absence of a criminal record, the lack of injury to the victim and the scheduled date for trial being some 14 months later were and are relevant considerations.

[96] The defendant’s age and absence of a criminal record are also important considerations on sentencing if he is convicted. These mitigating factors are not referred to by the bail Judge in her analysis as to the tertiary ground who erred in concluding that this element as to surrounding circumstances was at the “maximum” or most serious level.

Potential of Lengthy Term of Imprisonment If Convicted

[97] In denying bail, the court’s consideration of this issue was limited to the comment that the defendant if convicted, based on the case law, would at a minimum face a penitentiary term of imprisonment.

[98] A five-year period of incarceration if convicted, by way of example, of a then 20-year-old, first offender, involving these offences where the victim was not physically harmed, is below a “lengthy term” of imprisonment. The court therefore incorrectly concluded this s. 515(10)(c)(iv) element was at its “maximum force”. That determination was relied upon to justify pre-trial custody.

Conclusion

[99] As the Supreme Court stated in St. Cloud, detention in custody is the exception to the cardinal rule in criminal law that an accused should be released on bail on reasonable terms, unless there is just cause requiring pre-trial custody. (emphasis added)

[100] Consideration of all factors listed above, including the relative strength of the four listed elements in s. 515(10)(c), combined with the defendant’s younger age and absence of a prior criminal record, do not support a conclusion that his detention was a justifiable exception to the otherwise cardinal rule in favor of release upon reasonable terms of bail.

[101] A reasonable person, properly informed about:

(a) the principles of bail under s. 515 and the Charter;

(b) all of the circumstances of the case, including the relative strength of the four listed circumstances in s. 515(10)(c);

(c) combined with the proposed terms of bail including house arrest, the posting of $3,000 by the sureties and the presence of one of two sureties to otherwise be with the defendant;

would not have their confidence in the administration of justice undermined if Mr. Basquin is released on such terms of bail.

[102] Mr. Basquin is accordingly released on bail pending trial on terms which include those contained in the proposed amended bail plan and such other terms as the court will determine with the assistance of counsel upon delivery of this decision.

Mr. Justice Paul Kane

Released: December 18, 2019

COURT FILE NO.: CR-19-13385-BR DATE: 2019/12/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen The Crown

– and –

Dulo Basquin Defendant

S. 520 Bail REVIEW Decision

Kane J.

Released: December 18, 2019