Court File and Parties

COURT FILE NO.: CR-20 DATE: 20200707 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARVIN SMALL

COUNSEL: C.A. Brannagan and A. Leggett, for the Crown J. Miglin, for Marvin Small

HEARD: July 3, 2020

Decision on Bail Review

P.J. Monahan J.

[1] Marvin Small has been charged with a variety of offenses, including armed robbery, possession of crack cocaine for the purpose of trafficking, and multiple breaches of court orders. He surrendered to police on January 14, 2020. At a subsequent bail hearing on April 3, 2020, his detention was continued by a Justice of the Peace. He seeks a review of that detention order pursuant to s. 520 of the Criminal Code , based on a material change in circumstance since the bail hearing.

[2] This bail review was heard by audio conference on consent of the parties. Mr. Small participated from the Toronto South Detention Centre, where he is currently in custody.

[3] At the conclusion of the hearing I denied Mr. Small’s application, with written reasons to follow. These are my reasons.

Background

[4] Mr. Small was convicted of a number of offenses in the Ontario Court of Justice on December 15, 2015. In addition to a period of incarceration, he was sentenced to three years of probation. Pursuant to that probation order, Mr. Small was required to report to his probation officer as directed and to participate in PARS counselling. He was subsequently charged with failing to comply with these conditions. In May 2019, Mr. Small was arrested on these charges and released on his own recognizance.

[5] In November 2019, Mr. Small and a co-accused were charged with armed robbery. Mr. Small was also charged with breach of various court orders, including a s. 110 order prohibiting him from possessing weapons. Following his arrest Mr. Small was subject to a Level 3 search, which resulted in the police seizing 23 grams of crack cocaine. Mr. Small was charged with possession of cocaine for the purpose of trafficking.

[6] In December 2019, following a contested show cause hearing, Mr. Small was ordered released to three sureties, including his girlfriend TT. The Crown brought a bail review application pursuant to s. 521 of the Criminal Code.

[7] On January 7, 2020 one of the three sureties withdrew. The Crown’s bail review was then heard on January 13, 2020. Mr. Small did not attend court on that day. Clark J. granted the Crown’s bail review application, vacated Mr. Small’s bail and issued a bench warrant for his arrest. Mr. Small turned himself in to police the following day.

April 2020 Bail Hearing

[8] At the April 2020 bail hearing, it was proposed that Mr. Small would be released on a house arrest bail with two sureties. He would be required to live with one of his sureties, his girlfriend TT, at her residence in Oshawa. The other surety, PW, was to assist TT in the supervision of Mr. Small.

[9] The Justice of the Peace found that neither surety was suitable and that the plan of release was weak. He ordered Mr. Small detained on the primary, secondary and tertiary grounds in s. 515 (10).

[10] With respect to TT, the Justice of the Peace noted that when Mr. Small had been released on bail previously, he had lied to TT. In particular, in early January 2020 Mr. Small had told TT that he was leaving her residence in order to turn himself in to the police. However, Mr. Small failed to do so until approximately five days later and during this time his whereabouts was unknown. In addition, evidence at the bail hearing indicated that while Mr. Small was absent from TT’s residence, the police were unable to contact TT, despite multiple attendances by police officers at her home over a three-day period. [1]

[11] The Justice of the Peace noted Mr. Small’s lengthy criminal record spanning over 25 years, including convictions for crimes of violence, drug trafficking, and numerous breaches of court orders. His Worship was of the view that, absent proper supervision and a strong plan of release, there was a substantial likelihood that Mr. Small would reoffend if released. Given his finding that neither of the proposed sureties was appropriate, he found that Mr. Small’s detention was required under the secondary ground. The Justice of the Peace also had concerns over whether Mr. Small would attend court as required and, further, concluded that Mr. Small’s detention was necessary to maintain public confidence in the administration of justice. He therefore ordered Mr. Small detained on all three grounds in s. 515 (10).

Mr. Small’s Review Application

[12] It is common ground that s. 520 of the Criminal Code does not confer an open-ended discretion upon a reviewing Judge, nor is a bail review an automatic de novo hearing. Rather, as the Supreme Court of Canada noted in R. v. St. Cloud, a reviewing court appropriately exercises its discretion to assess whether the continued detention of an accused is justified only where: (i) the lower court has erred in law; (ii) the lower court’s decision was clearly inappropriate; and/or (iii) new evidence is submitted to show a material and relevant change in the circumstances of the case. [2]

[13] Mr. Small does not allege any legal error on the part of the Justice of the Peace, nor that his decision was clearly inappropriate. Rather, Mr. Small relies on four changes in circumstance as justifying a fresh consideration of whether his continued detention is justified. These changes in circumstance are as follows:

a. the addition of electronic monitoring to the proposed plan of release; b. a new surety is being proposed, who is claimed to be stronger and more reliable than PW; c. TT has increased her monetary pledge in support of the bail from $3000 to $6000; and d. the COVID-19 pandemic has postponed and delayed Mr. Small’s trials on his outstanding charges.

[14] The assessment of whether there has been a material and relevant change in circumstance must be conducted in a flexible manner, cognizant of the rights of the accused and the fact that release hearings generally take place at the start of criminal proceedings. Nevertheless, not all changes in circumstance are material and/or relevant. The analysis must take into account the actual considerations that underpinned the bail justice's refusal of bail. [3] In other words, the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that this new evidence could have affected the balancing exercise engaged in by the lower court. [4]

[15] I turn to a consideration of the four circumstances relied upon by Mr. Small as constituting a material and relevant change in circumstance, in light of this legal standard.

Electronic Monitoring

[16] There is no question but that electronic monitoring can, in certain circumstances, significantly strengthen a plan of release. Although electronic monitoring does not disclose what an individual is doing, it does track their location. Thus, where electronic monitoring is employed in conjunction with a responsible surety or sureties, it can provide a significant deterrent to the commission of an offence by an accused on bail. This is because, as Nordheimer J. (as he then was) noted in R. v. Doucette, the individual being monitored knows 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.” [5]

[17] As Nordheimer J.’s observation makes plain, electronic monitoring is intended to function in conjunction with an appropriate surety, whose “watchful eyes” ensure not merely that the accused is remaining in a designated location but that he or she is otherwise complying with the terms of release. As such, electronic monitoring does not displace the need to have “capable sureties who will monitor the activities of the accused person and report any breaches of the conditions of release without hesitation to authorities.” [6]

[18] Thus, in considering whether the addition of electronic monitoring could have resulted in a different determination by the Justice of the Peace, it becomes necessary to consider whether either of the sureties being proposed is suitable.

[19] As previously noted, the Justice of the Peace found TT unsuitable on the basis that Mr. Small had lied to her during his most recent bail. There is no challenge made to this finding and, in any event, there was ample support in the record for the Justice of the Peace’s determination that TT was not an appropriate surety for Mr. Small.

[20] The second surety being proposed is KN, who testified and was cross-examined on this bail review. KN lives in Scarborough and does not have a motor vehicle. As such, his only reliable means of travelling to TT’s home in Oshawa would be by public transit. KN estimates it would take him about an hour to travel to TT’s residence. However, KN does not know where TT lives and has never been to her home.

[21] KN appears to be a passing acquaintance who has very little knowledge of Mr. Small’s background and prior criminal activity. Although he indicated that he had served as a surety on one other occasion many years ago, KN did not evince any real understanding of the role and responsibilities of a surety. It is manifest that he is not in a position, nor does he have the ability, to properly supervise Mr. Small.

[22] I therefore find that KN is not acceptable as a surety for Mr. Small.

[23] Given the absence of an appropriate surety, electronic monitoring adds little to Mr. Small’s plan of release. I therefore find that the proposed addition of electronic monitoring does not constitute a material change in circumstance.

The New Surety

[24] I have already found KN to be unsuitable as a surety. Therefore, his addition to the plan of release cannot constitute a material change of circumstance.

The Increased Pledge by TT

[25] TT is proposing to increase her pledge in support of Mr. Small’s bail from $3000 to $6000. In the course of his reasons, the Justice of the Peace indicated that he had concerns over the fact that the release plan was substantially lacking in funds required to bind the conscience of the sureties. On this basis, the increased pledge from TT is said to be a material and relevant change in circumstance.

[26] Even with this increased pledge from TT, the overall amount being pledged is lower than that proposed during the initial bail hearing. [7] In any event, an increased pledge does not amount to a material change in circumstance where, as in this case, the core concern of the original bail court when assessing the secondary grounds was the ability of the sureties to supervise the applicant. [8]

[27] I therefore find that the increased pledge from TT does not address her shortcomings as Mr. Small’s main supervisor in the community and does not constitute a material change in circumstance.

Delay Resulting from COVID-19

[28] Mr. Small argues that the COVID-19 pandemic has resulted in a delay of his trial on some of his charges and there is no certainty as to when new trial dates will be set. This is said to constitute a material and relevant change in circumstance.

[29] In fact, the impact of COVID-19 on the timing of Mr. Small’s trial(s) was canvassed at the initial bail hearing on April 3, 2020. At that time, it was already understood that Mr. Small’s trial on his breach of probation charges would not be proceeding in April as previously scheduled. Moreover, the possibility that the scheduled preliminary hearing on the armed robbery and trafficking charges would not proceed in August was also discussed. (I note that, at present, the preliminary hearing on these charges is still scheduled for early August 2020.)

[30] The Justice of the Peace did take into account these concerns in his reasons but nevertheless found that Mr. Small should be detained.

[31] The current concerns raised by Mr. Small over the timing of his trials are largely duplicative of submissions made by his counsel at the original bail hearing, and dismissed by the Justice of the Peace. As such, they are not a material and relevant change in circumstance.

Disposition

[32] I find that none of the factors identified by Mr. Small, either individually or considered as a whole, constitute a material change in circumstance. It is therefore unnecessary for me to embark upon a de novo consideration of whether Mr. Small’s continued detention is appropriate. His s.520 application is dismissed.

P. J. Monahan J. Released: July 7, 2020

Footnotes

[1] The Justice of the Peace also outlined numerous reasons why he had no confidence that PW would be in a position to supervise Mr. Small. However, given that PW is not currently being proposed as a surety, it is unnecessary to review this aspect of the decision.

[2] R. v. St. Cloud, 2015 SCC 27 at para. 121.

[3] R. v. Whyte, 2014 ONCA 268, at para. 26.

[4] R. v. St. Cloud, 2015 SCC 27 at para. 137.

[5] R. v. Doucette, 2016 O.J. No. 852 (SCJ) at para. 5.

[6] R. v. Bahman, [2007] O.J. No. 4976 (SCJ) at paras. 22 to 23. See also R. v. DM, 2020 ONSC 3152 at para. 23.

[7] At the April 2020 bail hearing, in addition to the $3000 pledge from TT, PW was pledging $7000, for a total of $10,000. In contrast, on this bail review TT is prepared to pledge $6000 while KN is pledging $1000, for a total pledge of $7000.

[8] R. v. Myles, [2007] O.J. No. 2118 (SCJ) at paras. 25 and 55.