Court File and Parties

Court File No.: 8222/20 Date: 2020-06-04 Ontario Superior Court of Justice

Between: Her Majesty The Queen Karen Pritchard, Counsel for the Crown Lindsay Marshall, Federal Prosecutor

- and -

Stephen Ward Jennifer Tremblay-Hall, Counsel for the Accused

Heard: May 29, 2020

Varpio J.

Reasons on Detention Review

[1] Mr. Stephen Ward brings an application pursuant to s. 520 of the Criminal Code of Canada as a result of his detention before Justice of the Peace Cachagee on April 17, 2020.

[2] I heard the instant application on May 29, 2020 and dismissed the application with reasons to follow. The following are my reasons.

Facts

[3] Mr. Ward comes before the court with a criminal record including convictions for drug offences. Specifically, his record features dated convictions from 2007 through 2010. He also has two sets of convictions in 2019 that include two separate findings of guilt for possession of Schedule I substance for the purpose of trafficking as well as a conviction for unauthorized possession of a prohibited or restricted weapon.

[4] His first set of charges currently before the court stem from an incident that occurred on April 10, 2019 wherein it is alleged that Mr. Ward attended at an apartment in Goulais River with another male and two females. The other male was apparently a former tenant in the apartment. The four broke into the apartment and were discovered by the owner of the building and another man. The owner was punched by the non-tenant male. The owner of the apartment suffered a broken jaw. Police were called at approximately 6:30 a.m. and were told that a silver Chevrolet Cruze left the scene of the break-in. En route to the scene, the police observed a silver Chevrolet Cruze and pulled it over. The tenant was in the car as was Mr. Ward, who was subsequently arrested and charged with break and enter as well as assault-related offences. He was released from custody.

[5] It appears from the transcript that Mr. Ward was charged with other offences after being released from custody and resolved same. As a result, Mr. Ward was later released on the April 10, 2019 charges via recognizance dated December 4, 2019.

[6] On February 2, 2020 at approximately 12:45 p.m., officers were dispatched to an address in Echo Bay where an unresponsive woman was found at the residence. She was ultimately declared dead. She resided at the address with her common law spouse. The common law spouse ultimately indicated to police that he and his spouse called Mr. Ward and had Mr. Ward deliver cocaine to them earlier that evening. [^1] A toxicology report showed that the deceased’s blood work contained fentanyl and benzoylecgonine. The toxicology report indicated that the blood fentanyl concentration could cause death. The concentration of cocaine in the deceased’s blood work was also capable of causing death. The accused’s cell number appeared to be in the spouse’s cell phone contacts.

[7] Police surveilled Mr. Ward on February 10, 11 and 12, 2020 and observed Mr. Ward to engage in “numerous meets with various people consistent with drug trafficking”. Mr. Ward made stops in his vehicle whereby he would meet individuals at various locations throughout the city for very brief periods of time. These individuals would either attend at Mr. Ward’s motor vehicle or Mr. Ward would attend at another motor vehicle. On multiple occasions, police observed Mr. Ward attend at a storage unit for brief periods of time then leave. The OPP obtained a search warrant to search Mr. Ward’s apartment, the vehicle Mr. Ward had rented and the storage unit.

[8] On February 12, 2020, Mr. Ward was located driving the vehicle and was taken into custody at that time. The search warrants were executed.

[9] In the residence, police seized tin foil packages of cocaine, packaging materials, a radio frequency detector, methamphetamine, residue in a glass bottle, crystal meth (61 grams), and a variety of currency. The police also seize ammunition for a 12-gauge, .22 and .57 firearms. In total, 14 grams of crystal meth were seized from the residence as was 5 grams of crack cocaine and 443 grams of cocaine (the latter was seized from the motor vehicle).

[10] In the storage unit, the officers located a debt list, a sawed-off 12-gauge shotgun, shotgun shells, crystal meth pills, oxycodone pills.

[11] On March 11, 2020, Mr. Ward’s father was cleaning out the storage unit when he discovered a bag that contained 1,582.5 pills stamped “Percocet 5”.

[12] In total, over $6,000 was seized as well as a large amount of narcotics.

[13] Mr. Ward faces a number of charges including drug offences, breaches of court orders, weapons offences and manslaughter.

The Hearing

[14] On April 17, 2020, the presiding Justice of the Peace detained the accused on the tertiary grounds. The matter was a reverse onus situation. I will review the relevant portions of his reasons.

Analysis

[15] The accused submits that the presiding justice erred in the following fashion:

1. He failed to require the Crown to seek leave to cross-examine the surety as per R. v. A.K. 2020 ONSC 1555, [2020] O.J. No 1121 (Ont. S.C.);
2. His reasons do not disclose a proper balancing of the tertiary ground factors; and
3. He did not specifically refer to the fact that dates were not being set as a result of COVID-19.

[16] In R v. St-Cloud, 2015 SCC 27, Wagner C.J.C. described the scope of the bail review at paras 120 and 121:

On the basis of the wording of ss. 520 and 521 Cr. C., a comparison with other review provisions and with sentence appeals, and the nature of the decision being reviewed, I conclude that these sections do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must therefore determine whether it is appropriate to exercise this power of review.

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. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C.. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.

[17] Once the applicant has demonstrated an error in law, that the presiding justice gave excessive or insufficient weight to a relevant factor or that there is a material change in circumstance, the reviewing court is to engage in a bail hearing de novo.

Leave to Cross-Examine a Surety

[18] In the initial hearing, defence counsel provided the presiding Justice of the Peace with A.K., supra., and asked for a ruling as to whether the Justice of the Peace believed that he was required to grant leave so as to permit cross-examination of a surety. The Justice of the Peace ruled that he was not required to grant said leave.

[19] In A.K., the presiding judge found that the Crown must seek leave to cross-examine a surety lest the bail process become unduly lengthy. In other words, the Crown had to pass a threshold test in order to cross-examine a surety. At paras 26 to 34 of its reasons, the court stated in A.K. that there was no absolute right to cross-examine a surety and that leave was required to do so.

[20] Defence counsel rightly indicated that other Superior Court cases have rejected A.K. (see: R. v. A.F., 2020 ONSC 2053, at para. 33 to 53) but that, since A.K. was the only binding decision at the time of the accused’s bail hearing, the Justice of the Peace was obligated to follow A.K.

[21] Simply put, I agree with Goodman J’s reasoning in A.F. regarding the right of cross-examination and its limits and uses. I do not believe that the Crown must, by definition, seek leave to cross-examine of a surety and I adopt Goodman J.’s reasoning from paras. 33 to 53. I leave for another day whether there are instances where the court can deny the right of cross-examination in circumstances where the court deems said cross-examination unnecessary given the purpose of bail hearings as per R. v. Brooks (2001), O.J. 1563 (S.C.).

[22] Accordingly, no error in law was committed by the presiding Justice of the Peace in failing to grant leave to cross-examine the surety.

Failure to Adequately Balance the Tertiary Ground Factors

[23] As regards sufficiency of reasons, Trotter J.A. for the majority of the Ontario Court of Appeal recently stated in R. v. Slatter, 2019 ONCA 807, at paras 57 to 59:

The appellant submits that, while the trial judge thoroughly examined J.M.'s credibility, he failed to address his mind to the reliability of her evidence, especially her propensity for suggestibility. He asserts that the trial judge's reasons are insufficient for this reason.

A functional approach governs appellate review of the sufficiency of reasons. The relevant inquiry is "whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel": R. v. Dinardo, 2008 SCC 24, at para. 25; R. v. Vuradin, 2013 SCC 38, at para. 10. "An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review": Dinardo, at para. 25.

Under this deferential approach, a trial judge need not "review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel": R. v. A.M., 2014 ONCA 769, at para. 14. However, "major inconsistencies in the evidence of material witnesses" should be addressed and explained": R. v. D.H., 2016 ONCA 569, at para. 35. Accordingly, failure "to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error": A.M., at para. 18.

[24] I must thus take a functional, deferential approach to my interpretation of the reasons given by the Justice of the Peace in deterring whether he engaged in the appropriate weighing under the tertiary ground.

[25] In describing the tertiary ground, the presiding Justice of the Peace stated:

Over to the tertiary grounds – the tertiary grounds, Mr. Ward, means does my decision, if I release you – does that put the administration of justice into disrepute? In other words – would a regular person feel that, you know, that the courthouse today, particularly myself, made a bad decision if I were to release you? So, basically, it means what’s the public’s sentiment on this? And there is all levels of being informed. People who might comment on whatever my decision is didn’t participate in this bail hearing. So, it’s pretty tough to be fully, 100% informed. So, I am going to go through my analysis of the tertiary grounds…

[Emphasis added]

[26] Defence counsel submitted that the highlighted portion of the above passage constitutes a misstatement of the tertiary ground test in that the Justice of the Peace appears to deviate from the “reasonable person properly informed” standard.

[27] Standing alone, this is a possible interpretation of the Justice of the Peace’s statement. A functional examination of the reasons, however, indicates that the Justice of the Peace properly applied s. 515(10)(c) of the Criminal Code of Canada.

[28] Section 515(10)(c) of the Code states:

Justification for detention in custody

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all 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.

[29] In his reasons, the Justice of the Peace examined each of the factors listed above at (i) through (iv). He examined the evidence relating to each point. With respect to the strength of the Crown’s case, he cited the surveillance, the warrant, the searches subsequent to arrest and the evidence furnished therefrom. He also described the deceased’s spouse’s statement wherein that person admitted to consuming cocaine purchased from Mr. Ward. [^2]

[30] The Justice of the Peace then examined the evidence relevant to the other three factors. With respect to the gravity of the offence, the Justice of the Peace noted that “these are serious charges involving violence, prohibited weapon, drugs and manslaughter”.

[31] Regarding the circumstances of the offence, the Justice of the Peace stated that “victims are known to Mr. Ward and involved violence with some degree of planning regarding the incident in Goulais. The court during the allegations that Mr. Ward sucker punched [the victim] with brass knuckles that required surgery for a broken jaw; head cuts that required staples and he may lose three teeth. The allegations of supplying a substance were also heard that resulted in the unfortunate death of [the victim]. Police surveillance and search warrants demonstrated that Mr. Ward had a substantial quantity of illicit narcotics, currency and drug paraphernalia, as well as a sawed-off shotgun and appropriate ammunition while under a firearms prohibition”. The Justice of the Peace later noted the existence of an opioid crisis in Sault Ste. Marie.

[32] The Justice of the Peace also noted the potential for a lengthy prison term.

[33] The Justice of the Peace reviewed the Crown and defence positions. He then quoted much of the now considerable jurisprudence regarding COVID-19.

[34] The Justice of the Peace then engaged the tertiary ground analysis by stating:

When the four statutory factors in subsections (i) through (iv) are taken into account, the tertiary ground may require detention if there is a very serious, troubling crime alleged against the accused and if convicted, he will be incarcerated for a substantial amount of time. Chief Justice McLaughlin put it well in R. v. Hall, 2020 SCC 10, paragraph 40 – “Where, as here, the crime is horrific, inexplicable and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon the bail system and the justice system as a whole repose [sic].” Paragraph 46, “Lastly, Chief Justice Wagner said in his through discussion on the tertiary ground in the leading case of R. v. St.-Cloud, paragraph 15 through 88, “In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against he accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered”. Paragraph 47, “even though presumed innocent, it would be a blot on the system of justice to release an accused from pre-trial custody if the four factors of the provision are satisfied.

[35] The Justice of the Peace then reviewed the current jurisprudence regarding COVID-19 and stated that “with respect to bail generally, the virus does not constitute a get-out-of-jail-free card. It does, however, require a reconfiguring and a rethinking of the application of the tertiary ground for detention of accused persons”.

[36] He reviewed the jurisprudence regarding ankle bracelets (which was not advanced as a ground of review), and then quoted:

R. v. J.S., 2020 ONSC 1700 – quoted St-Cloud, it is clear that even where the crown can make a strong showing under the four listed criteria, detention is not automatic and the court must consider whether, in all the circumstances, detention is necessary to maintain the confidence in the administration of justice. This is St.-Cloud, paragraphs 66 to 72.

[37] The Justice of the Peace then found that the accused’s detention was not necessary under the secondary grounds but found that, on the tertiary grounds:

The suitability of Mrs. [R.], the proposed surety, cannot control any of the four enumerated factors in the tertiary ground. According to an indepth [sic] analysis of the tertiary ground, the documents tendered as exhibits and case law, Mr. Ward has not met his onus on the tertiary ground and it is the court’s observation that releasing Mr. Ward back into society would put the administration of justice into disrepute. For the above Reasons, I am ordering Mr. Ward detained on the tertiary ground.

[38] A functional, deferential analysis of the Justice of the Peace’s reasons as per St.-Cloud, therefore, make clear that the presiding Justice found each factor to weigh meaningfully in favour of the accused’s detention. He reviewed the evidence supporting each factor, quoted the appropriate test and detained Mr. Ward as per that test. While an explicit statement that the obvious weight of all the factors support detention on the tertiary ground would have been preferable, an examination of the above reasons with the functional and deferential analysis as described in Slatter makes clear that the Justice of the Peace engaged in just such an analysis. The Justice of the Peace’s finding is not a function of placing excessive of insufficient weight upon any given factor. Instead, Mr. Ward’s detention is amply supported by the evidence in this case and the Justice of the Peace’s reasons disclose no basis for review.

COVID-19

[39] The presiding Justice of the Peace examined the COVID-19 jurisprudence but failed to mention that the courts are not setting trial dates currently as a result of the pandemic. The accused submits that this is an error in law since it is a material consideration for the tertiary ground analysis.

[40] I disagree with the notion that the Justice of the Peace was required to explicitly describe this facet of COVID-19 in his tertiary ground analysis. I do not have counsel’s submissions at first instance before me and, as a result, I do not know if this concern was major issue to be considered. Even if it was, the failure to mention this fact does not to my mind constitute an error in law since the ability to set dates is subject to rapid change. As I write these reasons, it appears that Ontario is beginning to “re-open” from the COVID social distancing and, as a result, it is possible that dates will be set in the near future. On the other hand, it is possible that the status quo will continue for some period of time. Without any idea of when in-custody dates are liable to be set, and absent evidence of strong submissions in this regard, the failure to address this specific point constitutes an error in law in so far as the weight of the problem cannot be clearly assessed at this juncture.

Conclusion

[41] For the foregoing reasons, I find that the Justice of the Peace’s reasons and findings contain no errors or other reasons to interfere with the accused’s detention. Application dismissed.

Varpio J. Released: June 4, 2020

[^1]: The accused submits that there are issues with this statement. [^2]: The accused submits that the Justice of the Peace failed to consider the comments of a judge at a pretrial regarding the putative strength of the Goulais River charges. Given the privilege associated with such comments, the judge’s pretrial comments ought not to have been before the court. The fact that the Justice of the Peace did not reference said comments is not therefore an error.