Court File and Parties

COURT FILE NO.: 20-35 BR DATE: 20200721 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – BAROU MBUYAMBA Defendant

Counsel: Alexandre Simard, for the Crown David Howard, for the Defendant

HEARD: July 16, 2020

REASONS FOR DECISION ON APPLICATION FOR BAIL REVIEW JUstice Helene C. Desormeau

Introduction

[1] The accused brought a bail review under s.520 Criminal Code of Canada (“CCC”), which proceeded by way of teleconference.

[2] The original bail hearing took place on June 16, 2020. The accused at that time stood charged with global counts as follows: one count of s.91(2) - unauthorized possession of a prohibited or restricted weapon or device, one count of s.94 – unauthorized possession in a motor vehicle, one count of s.86(1) - careless use of a firearm, and one count of s.99(2) -weapons trafficking.

[3] The crown sought detention on the secondary and tertiary grounds. Pursuant to s. 515(6)(a)(vi), due to the charge of s.99(2), the onus is on the accused to show cause why his detention in custody is not justified. On June 18, 2020 Justice Renaud detained the accused on tertiary grounds.

[4] While the underlying facts remain the same, a more particularized information was laid. The accused now stands charged with a total of 69 counts, broken down as follows: 9 counts of s.103(1)(a)- importing a firearm, 14 counts of s. 103(1)(a) - importing a prohibited device, 9 counts of s. 92(1) - possession of a firearm, 14 counts of s. 92(2) – possession of prohibited device, 9 counts of s.94 – unauthorized possession of a firearm in a motor vehicle, and 14 counts of s.94 – unauthorized possession of a prohibited device in a motor vehicle.

The evidence on the application

[5] The fact scenario was straightforward. On June 10, 2020, members of the Cornwall RCMP and CBSA were conducting river surveillance in Glen Walter. Shortly after 20:37, the Investigating Officer Fetterly observed a young man exit a boat with a duffle bag marked by a white checkered pattern. Soon after, a Honda SUV pulled into the parking lot. The man with the duffle bag entered the rear of the vehicle with his bag. The officer noted the licence plate number. While visual contact was momentarily broken, the vehicle was located shortly thereafter, and at 20:57 the vehicle was stopped. Four men were inside the motor vehicle. The accused, Mr. Mbuyamba, was the driver.

[6] The occupants were advised they were being detained pursuant to s. 99(1)(f) of the Customs Act. A young man who matched the description of the person observed with the duffle bag was identified as Tony N’Zoigba. The police advised Mr. N’Zoigba that he was not under arrest but was being detained under the Customs Act. The police thereafter opened the hatch of the vehicle and observed a duffle bag with white checkers on top of several other bags. It was believed to be the same bag as previously observed. The duffle bag was opened and nine handguns in clear plastic bags with numerous extended magazines were located.

[7] All four occupants of the motor vehicle were arrested. At approximately 21:19, the accused was arrested, given his Charter rights and police caution. He was transported to the RCMP cells at approximately 21:48.

[8] The 19 year old accused comes to court without a criminal record. None of the four occupants of the motor vehicle have criminal records.

Initial bail hearing

[9] At the bail hearing, the accused presented his mother, Tsitsi Margaret Mugadza as his proposed residential surety.

[10] Ms. Mugadza testified at the hearing. Her evidence was that the accused resided with her in Ottawa prior to his arrest. Nobody else resided with them. The accused used to have a relationship with his father, from whom the mother is separated, until about four years ago when the father remarried and cut the relationship with the accused. She described having a good relationship with the accused, who respects her as a parent and listens to her. The accused gradated from high school. He had been going to school and juggling both volunteering and playing soccer for a number of years. Just before Covid-19, the accused decided to work for a company that sold private cameras. That stopped due to Covid-19.

[11] Ms. Mugadza was prepared to pledge $2,000.00 as a bond, which she understood she stood to lose should the accused breach any bail conditions. She indicated that as a single mother this would be hard to lose, so she needed to ensure he adhered to every condition on his bail.

[12] Ms. Mugadza knew two of the co-accused, who went to school with the accused, and would be able to recognize them. They reside between five and approximately eight minutes from the home by car. She also indicated she would be able to enforce a curfew if that were a condition imposed.

[13] Ms. Mugadza’s evidence was also that she worked from 6:00 a.m. to 2:00 p.m., four days per week, and occasionally more often.

[14] Defence submitted that there were triable issues with the case before the court, in particular, knowledge and control of the firearms. The accused was arrested in a motor vehicle that did not belong to him.

[15] Defence argued that Covid-19 was relevant to the tertiary grounds, and that there are numerous authorities that alluded to same, including R v. Raja, 2020 ONSC 2118, paragraphs 69 and 70. In that decision, Justice Harris stated that the threat of Covid-19 went a long way to cancelling out the traditional basis for tertiary ground detention.

[16] The crown at the initial hearing indicated that the proposed surety, Ms. Mugadza, was blind to what was going on, and it was concerning that the accused’s actions were without his mother’s knowledge. The accused is facing very serious jail time for the alleged offences. The crown pointed out that during this pandemic, the accused drove an hour away from his home, allegedly committing this very serious crime. Ultimately, the crown argued that the accused did not meet his onus on the secondary or tertiary grounds, but submitted that the tertiary grounds were the most significant in these circumstances.

[17] The transcript of the bail hearing reveals that in the interval between the initial hearing and ruling, the crown provided evidence regarding the registered owner of the motor vehicle. It belongs to the mother of a past girlfriend of the accused and it was the past girlfriend who loaned it to the accused.

[18] As noted above, on June 18, 2020, Justice Renaud detained the accused on tertiary grounds. In his decision, Justice Renaud noted the extremely serious nature of the allegations faced by the accused. He pointed out that the most serious offence was the weapons trafficking offence, s.99, which if made out brings about a minimum jail sentence of three years. Justice Renaud recognized the availability of Charter arguments regarding mandatory minimum sentences. He went on to review a number of relevant cases, including R. v. S.A., 2020 O.J. No. 2629, R v. Thomas, O.J. No. 2323, R v. Antic, 2017 SCC 27.

[19] Justice Renaud found the proposed surety to be very impressive. He stated that the arguments advanced by the defence on the secondary grounds were very persuasive, and but for the tertiary grounds concerns, the accused would have been released.

[20] Regarding the tertiary grounds, Justice Renaud expressed grave concerns about the nine weapons and their ultimate destructive and dangerous purpose.

[21] Justice Renaud turned his mind to the Covid-19 concerns in the context of the bail hearing. He cited R. v. Thomas, surpa, paragraphs 66 and 67, as well as R v. Williams, 2020 ONSC 2237, 2020 O.J. No. 2218, at paragraphs 110 and 127, where he found helpful reference to medical information. He recognized that people in confinement, such as in the jail, are at much greater risk of contracting Covid-19. Notwithstanding that reality, he nevertheless found that detention was absolutely required on the tertiary grounds.

[22] Justice Renaud disregarded the fact that the accused was subject to a driving suspension, because he found that it was not clear the accused had knowledge of the suspension.

[23] After reviewing the case law and weighing the evidence, on the plan presented at the hearing, Justice Renaud determined detention was required. He was of the view that the case for the crown was compelling, but recognized that based on the nature of the accusations, anything could tip the scales. He recognized that the accused is presumed innocent, and again touched on R. v. Antic, 2017 SCC 27, supra.

Bail review

[24] The accused has been in custody since June 10, 2020. He brought a bail review based on error of law, or alternatively, material change in circumstances, seeking his release on a recognizance with a residential surety, house arrest, electronic monitoring, no contact with the co-accused’s, and a $2,000.00 bond.

[25] The crown opposed the accused’s release. The crown argued that there has been no material change in circumstances or error of law, and regardless, the plan is insufficient to discharge the accused’s onus on the tertiary grounds.

Has there been a material change in circumstances or an error of law?

[26] This is a defence request for a bail review under s.520 CCC. The defence argued that Justice Renaud erred in law by (a) failing to consider the plan of release as a factor in the tertiary ground analysis, (b) over-emphasizing the strength of the crown’s case and ignoring inferences favourable to the accused that arose from the facts and (c) failing to properly consider Covid-19 when balancing the factors, referencing Superior Court decisions which were binding on Justice Renaud. Defence further submitted that a material change in circumstances had occurred as the accused had arranged for GPS electronic monitoring from Recovery Science Corporation, now proposed as a part of the release plan, the cost of which would be borne by the accused and his mother.

[27] The crown argued that (a) the evidence proposed by defence was not evidence that met the Palmer criteria, (b) the evidence is not expected to affect the result and (c) if the court found the evidence to be new evidence under the Palmer criteria, the plan is not sufficient to address the tertiary ground concerns for bail. Ultimately, the crown argued that there was no material change in circumstances with the ankle monitoring being proposed, nor with Covid-19. The crown submitted that Justice Renaud properly considered the strength of the crown’s case as well as the favourable particulars of the accused and his proposed release plan, and that there was no error in Justice Renaud’s analysis regarding Covid-19. The crown invited the court to disregard Justice Renaud’s obiter comments that his decision might have been different if electronic supervision had been part of the initial plan.

[28] In support of the review, defence relied on the evidence tendered at the initial hearing, the sworn evidence of the accused, the sworn evidence of Ms. Mugadza, a commitment letter and information package from Recovery Science Corporation along with Mr. Stephen Tan’s sworn evidence, and the affidavit of Dr. Aaron Orkin (re: Covid-19). The accused affirmed his affidavit, and Ms. Mugadza affirmed her surety declaration on the record during the proceedings.

[29] The evidence by the accused was that he would abide by the terms of release, which were proposed to include his mother as a residential surety, house arrest, electronic monitoring, no contact with the co-accused’s, and a $2,000.00 bond. As for the cost of electronic monitoring, he was prepared to bear that responsibility, with the assistance of his mother. If released, his plan was to enrol into online college.

[30] Ms. Mugadza adopted her prior testimony, and provided evidence that the accused would initially pay the cost of the electronic monitoring, and after he used his savings, she would take over the cost. The cost was approximately $500.00 per month. Ms. Mugadza’s evidence was that the expense can be met with her modest income.

[31] Mr. Stephen Tan from Recovery Science also testified at the hearing. His evidence was similar to what was found in the information package, which included that there is 24/7 monitoring, that Recovery Science will call the police if there is an alert, that the Officer in Charge can be part of the alert recipients and can be given direct access to all of the information regarding the electronic monitoring. Mr. Tan agreed that the GPS tracks the location of the individual as a reporting instrument, but cannot report what that person is doing or who that person is with.

[32] The crown relied on a Response to Covid-19 Information Note dated June 9, 2020 in support of its position, along with brief cross examination of the accused, the surety and Mr. Tan.

[33] Both the affidavit of Dr. Orkin and the Information Note were accepted by the parties and for the purpose of this bail review, are accepted by this court.

Analysis

[34] Section 520 CCC governs the court’s authority here. That authority has been clarified by the Supreme Court of Canada in the case of R. v. St-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27 at paras. 90-139.

[35] St-Cloud makes it clear that a judge can intervene and conduct a new inquiry under s. 515 CCC as to the appropriateness of the accused’s release where “relevant new evidence is tendered, where an error of law has been made, or where the decision was clearly inappropriate”: at para. 139.

[36] A judge may also reconsider whether the accused should be detained if new evidence is submitted and that evidence shows a material and relevant change in the circumstances of the case. Importantly, in St-Cloud, the court directed that the approach to what is “new evidence” and the application of the Palmer test should be flexible in the context of bail review: see paras. 127, 129, 131-133. (Also see R v. Long, 2020 ONSC 3066 at para. 12).

[37] As stated in R. v. Long, 2020 ONSC 3066, supra, St-Cloud confirmed that the “due diligence” criterion from Palmer should not be applied as strictly in criminal matters as in civil cases and that “the weight to be given to this criterion depends on the strength of the other criteria or, in other words, on the totality of the circumstances”: St-Cloud at para. 131; Long at para. 13. Accordingly, “a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial hearing but was not tendered for some reason that is legitimate and reasonable. This is how the “due diligence” criterion must be understood in the context of the review provided for in ss. 520 and 521 [of the Code]. The nature of the release system and the risks associated with it demand no less.”: St-Cloud at para. 132; Long at para. 13.

[38] In St-Cloud, the court held that in order for new evidence to be admissible at the bail review hearing, the four criteria of the Palmer test must be met, requiring an expeditions and flexible approach. “The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.”: St-Cloud at para. 138. The Palmer criterion, modified to suit the bail review context are:

1. The evidence should generally not be admitted if, by due diligence it could have been adduced at trial (bail hearing);
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial (bail hearing);
3. The evidence must be credible in the sense that it is reasonably capable of belief;
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial (bail), could be expected to have affected the result.

[39] I have considered the new evidence presented in the context of this bail review, and find that the evidence meets the Palmer test.

[40] In arriving at this conclusion, I have considered that the accused, while facing very serious allegations, has now spent 41 days in jail, and has presented a new plan which includes electronic monitoring. I am mindful of the crown’s submission regarding Justice Renaud’s obiter comment regarding electronic monitoring, and place no weight on any obiter comments made by Justice Renaud. Nevertheless, in applying a flexible approach, I find that the circumstances are relevant and could have been expected to affect the result of the accused’s initial detention. Consequently, I find that this court has jurisdiction to consider the analysis under s.515 of the Code as if it were the initial decision maker.

[41] While I recognize that there are a number of authorities which find the pandemic to constitute a material change in circumstance, in this particular bail review, the pandemic was accounted for by Justice Renaud. I acknowledge that there still continues to be uncertainty due to the pandemic as to when trial dates can be scheduled.

[42] Given my finding that there has been a material change in circumstances, I need not analyze any alleged error in law.

Has the accused discharged his onus and demonstrated that his detention is not required under either the secondary or tertiary grounds

[43] The defence advanced that the accused has met his onus on both the secondary and tertiary grounds.

[44] At the bail review, contrary to what the crown argued at the initial bail hearing, no issue was taken regarding the secondary grounds. The crown submitted that he was not saying the surety was not a good surety at all. The crown instead focused its arguments on the tertiary grounds.

[45] The defence evidence was that this 19 year old accused comes to court without a criminal record, with a plan involving a residential surety, house arrest, and electronic monitoring. The accused, in his evidence, appeared sincere in his assertion that he will comply with any terms of release.

[46] Similarly, I found Ms. Mugadza clear on her duties as a surety, and sincere in her ability to properly effectuate her duties. Her unchallenged evidence was that she has a good relationship with her son, who respects her as a parent, and listens to her when she tells him to do something. I accept this evidence. I also accept that Ms. Mugadza knows two of the three co-accused, and this knowledge will assist her in ensuring that the accused complies with his conditions.

Secondary Grounds

[47] On the secondary grounds, the onus being on the accused, the court must determine whether or not detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[48] In the result, I am satisfied that the proposed plan of release meets the accused’s onus on the secondary grounds. I rely principally on the lack of criminal antecedents and on what I find to be a very strong surety.

Tertiary grounds

[49] I turn now to the tertiary grounds. On these grounds, the onus being on the accused, the court must determine 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.

[50] On these grounds, the object is to determine whether detention is necessary to maintain confidence in the administration of justice. As set out in St-Cloud, the four enumerated factors are not exhaustive, and no single circumstance is determinative. Writing for the court, when referencing the “circumstances surrounding the commission of the offence”, Justice Wagner set out “I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.”: St-Cloud, 2015 SCC 27, at para. 71.

[51] The Supreme court also noted that “it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales ([1992] 3 S.C.R. 711) at p. 728. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(e) of the Charter: Pearson ([1992] 3 S.C.R. 665) at p. 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter (Hall, 2002 SCC 64 at para. 13). These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.”: St-Cloud, 2015 SCC 27, at para. 70; Also see R. v. Zora, 2020 SCC 14 at paras. 1 and 20.

[52] As set out in St-Cloud, the confidence of administration of justice is looked upon from the perspective of a reasonable person. “A reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter. Such a person is undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that “justice delayed is justice denied”: R. v. Trout, 2006 MBCA 96, 205 Man. R. (2d) 277 (Man. C.A.), at para. 15. Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose of certain defences is to show the absence of such intent.” See St-Cloud, 2015 SCC 27, at para. 79.

[53] I have considered the capable submissions of counsel.

[54] I find that the four factors of 515(10)(c) all favour detention. I find that the crown’s case, as it currently stands, is very strong. I note that the alleged offences are extremely serious in nature and involve 69 counts broken down to include importing and possession of firearms and prohibited devices. There were 9 handguns seized in a motor vehicle being driven by the accused, in this small community. There were four people charged in relation to the offences. Some of the offences are subject to mandatory minimum sentences. I recognize that there are triable issues and possible Charter issues that will be advanced by defence. It is also worthy to note that the firearms were not used, and no one was injured.

[55] While I have already found that the nature of the pandemic does not constitute a material change in circumstances for the purpose of reviewing the prior order, the pandemic is nevertheless a reality to this accused. As stated in R v. S.A., 2020 ONSC 3622, “the Covid-19 pandemic is, for the most part, relevant to the tertiary ground because the public’s confidence in the administration of justice must take into account the courts’ participation in public health initiatives that benefit everyone, including reducing the prison population to the extent possible to prevent the spread of the virus.”: R. v. S.A., 2020 ONSC 3622, at para. 41.

[56] No evidence was put forward to indicate that the accused was at heightened risk of serious illness if he was infected with Covid-19. In fact, the crown argued that despite the risk of Covid-19, the accused left Ottawa and traveled to Cornwall for an arguably nefarious purpose, that of bringing guns into the community. There was also no evidence that there are any cases of Covid-19 at OCDC, where the accused is presently detained.

[57] However, Covid-19 implications surpass health related issues. In St-Cloud, the court indicated that a lengthy delay between the hearing and the eventual trial may be considered in determining whether detention is necessary to maintain confidence in the administration of justice, which is the tertiary ground: para. 71; also see R v. Myers, 2019 SCC 18; R v. J.R., 2020 ONSC 1938, at para. 12. I note that the accused has now been in detention for 41 days. Most, if not all, trials have been delayed due to the pandemic in both the Ontario Court of Justice and Superior Court of Justice. There is little doubt in my mind that the pandemic will have the effect to delay the scheduling of and/or hearing this matter by way of trial.

[58] I now turn my mind to electronic monitoring. It is well established that electronic monitoring would ensure that if the accused left his home without his surety or when he was not permitted to do so, then a breach would almost certainly be detected. However, as conceded by both the defence and Recovery Science, electronic monitoring is a location reporting instrument. It cannot warn authorities about telephone or internet or physical contact with Crown witnesses or criminal associates: R. v. Ma, 2015 ONSC 7709, at para. 55; R. v. Halovich, 2020 ONSC 2709, at para. 38. As set out in R. v. Osman, 2020 ONSC 2490 at para. 35, electronic monitoring is only useful if it supplements what is already a strong supervisory surety plan.

[59] In the circumstances of this case, this accused person has no record of non-compliance of court orders, and the plan proposed includes house arrest with a residential surety, and no-contact provisions with the co-accused’s.

[60] I find that the proposed release plan, which includes a strong supervisory surety in whom I have confidence, along with house arrest conditions, would be augmented by electronic monitoring, and based on the actual circumstances of the case, address the tertiary ground concerns.

[61] As such, I am satisfied on the tertiary grounds, given the plan, the age of the accused, and the lack of a criminal record, a reasonably informed person would be satisfied that detention is not necessary to maintain the administration of justice.

[62] For all of these forgoing reasons, I find the accused has met his onus on the secondary and tertiary grounds and he will be released on a recognizance with a bond in the amount of $2,000.00, with his mother as his surety with a $2,000.00 bond. Among other conditions, he is to reside with his surety, remain in his residence at all times, except for medical emergencies, meeting with counsel, and attendance at court when he will be accompanied by his surety; he will not possess any weapons; he will abide with the electronic monitoring contract; and contact with the co-accused is prohibited.

[63] I wish to thank counsel for their able submissions and professionalism.

The Honourable Justice Helene C. Desormeau Released: July 21, 2020