R. v. T. James, CITATION: 2019 ONSC 7248

COURT FILE NO.: CR-19-4751-BR

DATE: 2019-12-13

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen

AND: Talius James

BEFORE: Mr Justice Ramsay

COUNSEL: Michal Sokolski for the Crown; Michael Del Gobbo for the accused

HEARD: December 12, 2019 at Welland

ENDORSEMENT

[1] This is a bail review under s.521 of the Criminal Code.

[2] On October 18, 2019 the accused was stopped at the border at Niagara Falls. He was the registered owner and sole occupant of the car he was driving. Customs agents found sixteen 9 mm Luger rounds in a hidden compartment behind the glove box. Three 40-calibre Glocks were found in a recess behind the front bumper, accompanied by three magazines of prohibited size. One of the firearms had been bought in Mississippi a few days before the arrest. According to the evidence of his mother, the accused crossed into Canada two or three times a month in the six months preceding his arrest. He has friends in the greater Toronto area and relatives in Niagara Falls.

[3] The accused is 26 years old. He is an American national. He resides in Rochester, New York, where he has a good job working either as an operator or mechanic on heavy equipment owned by the City. He has no criminal record.

[4] At the bail hearing the mother of the accused offered $25,000 cash, or more if necessary. The wife of the relative who lives in Niagara Falls offered to stand surety without deposit.

The test on review

[5] Section 521 of the Code does not confer on the reviewing judge an open-ended power to review the initial order. It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. The relevant factors are not limited to the ones expressly specified in s. 515(10)(c) of the Code. Where new evidence is submitted by the accused or the prosecutor the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case: R v St-Cloud, 2015 SCC 27, para. 120-121.

The primary ground

[6] The justice was only asked to consider the first and third grounds for detention. He adverted to the relevant considerations – the seriousness of the offence, the probability of conviction, the potential sentence, the lies told to Customs agents, the lack of a previous record, the family and community ties of the accused (mostly in Rochester), and the nature and circumstances of the offence. On the primary ground he decided that a $75,000 bond, including $50,000 deposit, was sufficient to ensure the attendance of the accused. The Canadian relative was the surety for $25,000 without deposit. Given the resources of the accused and his family members that amount strikes me as clearly inadequate, although it has worked so far.

[7] The accused was ordered to stay out of Canada except to return to court or to see his lawyer, to reside with his mother in Rochester, to notify the police of any change of address. The justice also imposed the prima facie mandatory firearms prohibitions in s.515(4.1) and (4.11) of the Code.

The tertiary ground

[8] The principles for applying the tertiary ground in s.515(10)(c) of the Code are summarized at paragraph 87 of St-Cloud, to which case the justice referred.

[9] In the context of the tertiary ground, the justice made the following observation:

I will note for the record, as it was noted by the Crown, that … one Glock handgun that allegedly was purchased four days prior to the arrest was purchased in Mississippi and suggests that Mr James may well have an established channel to acquire firearms given the short time between acquiring that handgun and the crossing of the border.

[10] This was quite apt. The circumstances, including the existence of a hidden compartment, suggest possession of the firearms for the purpose of selling them in Canada. The justice recognized this.

[11] The justice adverted to St-Cloud and concluded:

… notwithstanding the seriousness of the allegations I do not believe a reasonable and well-informed member of this community would consider incarcerating Mr James, a first-time offender, as a preferred alternative to confining him in a law-abiding house and the cash deposit.

[12] I would say first, that the choice was not between detention and confinement in a law-abiding house. The release order did not confine the accused. It said that he was to live with his mother in Rochester, but that he could change his residence as long as he let the police know where he was staying. There were no restrictions on his residence or movements in the United States, nor could any have been enforced.

[13] The question was whether the accused had shown that his detention was not necessary to maintain confidence in the administration of justice (“pour ne pas miner la confiance du public envers l’administration de la justice”).

[14] All four statutory factors mentioned in clauses (i) to (iv) of paragraph 515(10)(c) of the Code supported detention on the tertiary ground. That does not automatically lead to detention because these factors are not exhaustive. The countervailing factors were the lack of criminal record and the fact that the accused has a legitimate job and comes from a law-abiding family. Those factors are often decisive. They only go so far, however, in a case involving a strong likelihood of conviction of the sort of crime that is carried on as a business activity and that involves firearms. It suggests ties with a network of criminal associates and dedication to anti-social values. Powerful sidearms are the tools of the narcotics industry. It is this sort of weapon that takes the lives of criminal rivals, innocent bystanders and police officers.

[15] The justice gave far too much weight to the lack of a criminal record and far too little to the seriousness and nature of the offence and the probability of conviction. The result was a release order that was clearly inappropriate. The accused did not show cause for release on the tertiary ground.

[16] The review is allowed. The release order is vacated. I order the detention of the accused until he is dealt with according to law.

J.A. Ramsay J.

Date: 2019-12-13