Court File and Parties
COURT FILE NO.: CR-20-36 DATE: 20200811 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Tony Elliot N’Zoigba
BEFORE: Justice Nathalie Champagne
COUNSEL: Paul Kenney, Counsel for Her Majesty the Queen (Applicant) Jason Gilbert, Counsel for the accused (Respondent)
HEARD: July 31, 2020
Endorsement at Bail Review
Introduction
[1] The matter before the court is an application by the Crown under s. 521(1) of the Criminal Code of Canada for a review of the decision of Justice of the Peace Snyder on July 13, 2020, releasing the accused Mr. N’Zoigba on strict conditions.
[2] The Crown argues that the Justice of the Peace erred in law in two ways. First, in considering the rareness of detention based on the tertiary ground as a factor in the bail hearing and second, in giving inappropriate weight to electronic monitoring and COVID 19 when the four factors under s. 515(10)(c) favored detention.
[3] For reasons that follow, the Crown’s application is dismissed.
The Facts
[4] The accused is a 23 years old man with no criminal record who is charged with multiple offences relating to the importation, possession and trafficking of nine handguns and ammunition. He has no criminal record.
[5] On June 10, 2020 Canadian Border Services Agency (CBSA) and Royal Canadian Mounted Police (RCMP) were conducting surveillance in a particular area near the St. Lawrence River in an unrelated matter. They observed a boat carrying three individuals hovering near the water’s edge. They saw a black male get out of the boat carrying a duffle bag. The male with the duffle bag appeared to police to be attempting to hide from passing cars. He was picked up by a black Honda CRV which the police followed. They stopped the Honda CRV and noted the accused sitting in the back passenger seat was wearing clothing identical to the black male they had observed with the duffle bag at the water’s edge earlier. The police conducted a search under the Customs Act and discovered nine handguns and ammunition in the duffle bag. In the duffle bag there was also a driver’s license with the accused’s photo but with a different name. The accused and three other occupants of the vehicle were arrested.
[6] The accused had a bail hearing before Justice of the Peace Snyder which took place over four days July 3rd, 6th, 10th and 13th 2020. He was released to two sureties on strict conditions including house arrest with electronic monitoring and requiring him to be in the presence of one of two sureties at all time.
Applicant’s Position
Rareness of Detention on the Tertiary Ground
[7] The Crown argues the Justice of the Peace erred in holding that the limited use of detention on the tertiary ground was a guiding principle on bail matters involving this ground. The Crown points to the Justice of Peace’s quote of R. v. Hall 2002 SCC 64 and argues that the Supreme Court of Canada in R.v. St. Cloud 2015 SCC 27 makes clear the rareness of detention on the tertiary ground is not a precondition or criterion to be used in an analysis on bail. The Crown contends that the Justice of the Peace’s analysis relied heavily on this error which lead to an inappropriate result which warrants a fresh analysis by this court.
Respondent’s Position
[8] The respondent argues that the Supreme Court in St. Cloud did not overturn the reasoning in Hall, it simply clarified that the rareness of detention on the tertiary ground was not a precondition of the application of s. 515(10)(c). The respondent argues that the Justice of the Peace did an appropriate analysis on the tertiary ground applying the principles in St. Cloud.
[9] My review of the bail decision reveals Justice of the Peace Snyder did quote Hall and made reference to a guiding principle but did not hold the rarity of detention on the tertiary ground to be that guiding principle per se. He quoted Hall as part of his analysis but the rarity of detention on the tertiary ground does not appear to have shaped his decision.
[10] In his decision, the Justice of Peace did a thorough analysis of both the secondary and tertiary grounds.
[11] In his analysis of the tertiary ground he said this:
“I will now look at the tertiary grounds, whether detention is necessary to maintain confidence in the administration of justice. Will the public lose confidence in the administration of justice if he is released? I use St-Cloud to assist me in my analysis. The strength of the Crown’s case, on its face, it’s a strong prosecution case. However, as mentioned earlier, there are triable issues, and one never knows what can happen between the arrest and the trial.
They were virtually caught red-handed by police with guns in the vehicle. The gravity and nature of the offence, gun trafficking, is a very serious crime. Although no violence at the time of the arrest, illegal guns are for one reason, and that is violence.
The circumstances surrounding the commission of the offence including whether a firearm was used, in this case, a firearm was not used and there was no violence at the time of the arrest or leading up to the arrest.
Potential for lengthy term of imprisonment. There is a clear potential for a lengthy term of imprisonment given by the nature of the allegations. The circumstances surround the commission of the offence, there is a degree of planning and organizing and organized gun trafficking. But bail should not be denied simply because it might be popular in the eyes of the public. The guiding principle on the application of the tertiary grounds has been summarized as follows: The tertiary grounds continues to apply to all persons seeking judicial interim release. That said, the circumstances in which recourse is made to the tertiary grounds to deny bail may not arise frequently. R. v. Hall, 2002 SCC 64.
With denial of bail on this ground only in limited in circumstances. The over-reaching consideration applying Section 515.10(c) of the Code is the effect of release on the public confidence in the administration of justice. The public confidence perspective ignores the excitable and irrational citizen, but rather the confidence of a reasonable, informed and dispassionate public. The reasonable member of the community is one person informed of philosophy of the relevant legislation provisions, Charter values, and the actual circumstances in the case; awareness of the presumption of innocence and the prohibition against punishment for pre-trial custody before a fair trial are required. No one of the four enumerated factors in Section 515.10 (c) is determinative. “The Court is obligated to consider the combined effects of the factor in the context of all circumstances”, that’s R. v. James, 2010 ONSC 3160 at paragraph 22.
A reasonable member of the community would understand and appreciate the importance of the presumption of innocence, the significance of the liberty of the subject, and constitutional guarantee of the right to reasonable bail. The fact that granting bail must be assessed on a case by case basis and accused must be released if none of the grounds set out in 515.10 of the Criminal Code is satisfied. The actual nature of the allegations against an accused person and that they may or may not be proven at trial, the fact that pre-trial detention can last for several months before trial; the fact that the poor may more likely be detained. The fact that pre-trial detention can significantly complicate the abilities of the accused to prepare the defence; the fact that incarceration is imposed as a punishment only after conviction and sentence and the personal circumstance of the accused, the term imposed by the judge granting bail. That’s R. v. A.B..
I refer to R. v. Stevenson at paragraph 37, “In my opinion, the notional member of the public whose confidence we should seek to maintain is that reasonable, fair-minded and informed individual who would take all the circumstances into account. In my best assessment, that person would remain confident in the administration of justice if a person were released on bail even on a serious charge and even in the face of what appears to be the initial stages to be a strong Crown case. As long as it is likely that the accused would attend for trial, would not commit further criminal offences and would not otherwise interfere with the administration of justice. If those concerns are satisfied, then the granting of bail does nothing more than delay incarceration if in fact the Crown case is as strong as it is built. To deny bail in circumstances of an allegedly strong case in order to maintain public confidence runs the risk of invoking the end result prior to the proper unfolding of due process.”
In addition, in keeping with any analysis on the tertiary grounds, I must consider all circumstances including the time that it will take for Mr. N'Zoigba to go to trial on these charges. I must consider the effects of COVID-19 on the prison system, as well as the length of time it may take to come to trial. While I did not hear evidence that COVID-19 applied to Mr. N'Zoigba from a medical standpoint, it is very likely that due to COVID-19 pandemic, there will be likely significant delays before this matter goes to trial. So, after careful reflection of the tertiary grounds in taking everything into consideration which included the plan, the good sureties, and the ankle monitor and the effects of COVID-19. I do not believe detention is necessary to maintain confidence in the administration of justice. The knowledgeable public will not lose confidence in the administration of justice if Mr. N'Zoigba is released with the plan proposed.
Mr. N'Zoigba has met his onus on the tertiary grounds. Given the good sureties, and the plan presented, the Court finds that a release can be fashioned with strict conditions to protect the community until this matter comes to trial.”
[12] This passage, which comprises the entirety of his analysis on the tertiary ground makes clear that Justice of Peace Snyder did not add the “rarity of detention” to the four factors set out in s. 515(10)(c) of the Criminal Code, he made mention of it. He made findings on each of the four criteria, finding that all four grounds were triggered in the application and he correctly understood that the over-reaching consideration on the tertiary ground was the effect of release on the public’s confidence in the administration of justice. He went on at length to consider who that public is and concluded that in the circumstances of this case, the reasonably informed citizen’s confidence in the administration of justice would not be shaken by the release of this accused on strict conditions.
[13] I conclude the Justice of the peace did not heavily weigh the “rareness of detention” on the tertiary ground and no error of law in his analysis in this regard.
Weight Given to Electronic Monitoring and COVID 19
[14] The Crown submits the Justice of the Peace erred in relying heavily and disproportionately on the electronic monitoring component of the accused’s bail plan and on the impact of COVID 19 in coming to his decision.
[15] Just as I did in relation to the tertiary ground, I will quote Justice of the Peace Snyder’s analysis on the secondary grounds. He said this:
“The secondary ground requires me to engage in a risk analysis, namely, do I think that there is a substantial likelihood that the accused will reoffend and in doing so will he present a danger to the public or interfere with the administration of justice? In considering the above, I must also consider whether the plan mitigates the risk related to the secondary ground concerns. The secondary grounds for a detention order envision detention being necessary for the protection or for the safety of the public having regard to all circumstances, including among other things, any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice. I look at the strength of the Crown’s case, the individual’s criminal record and the seriousness of the offence. In this case, he does not have a criminal record; when dealing with bail issues, one must be very careful not to forget the basics, the Charter has stated in R. v. Morales (1992).”
[16] The Justice of the Peace stated that accused is presumed innocent in accordance with s. 11(d) of the Charter and he is entitled to reasonable bail under s. 11(e). The Justice of Peace went on to quote Morales:
“The denial of bail must occur only in a narrow set of circumstances. Second, denial of bail must be necessary to promote a proper functioning of the bail system. Strong evidence, even overwhelming evidence, is only one factor to be considered among several factors. It alone must not lead the presiding justice to order the detention of the accused, “there must be a substantial likelihood that reoffence or interference with the administration of justice, and only where the substantial likelihood endangers the protection or safety of the public,” (Morales).
[17] The Justice of the Peace correctly stated that “the mere risk of such reoffence or misbehaviour is simply not enough. One cannot rely on what may occur to justify the detention on the secondary grounds. These concerns can be dealt with through the imposition of appropriate limiting conditions of release”. He concluded that there was insufficient evidence of a risk of reoffence on the material before him and he found the accused met his onus on the secondary ground.
Electronic Monitoring
The Applicant’s Position
[18] The Crown argues that electronic monitoring does not address the secondary or tertiary ground and the Justice of the Peace ignored the body of the caselaw given to him by the Crown in support of that assertion. At the bail hearing the Crown relied on R. v. Osman, R. v. Lami, USA v. Hugo, R v. K.H. and R.v. M.H. among others. The Crown contends Justice of the Peace Snyder erred in applying the reasoning in an Ontario Court of Justice case in light of the above.
The Respondent’s Position
[19] The respondent argues that in fact there is caselaw which finds that electronic monitoring can enhance a bail plan where there are concerns on the secondary and tertiary grounds and referred the court to Justice Trotter’s decision in R. v. Fleming [2015] O.J. No. 4380.
[20] I reject the Crown’s argument on this issue. While the Justice of the Peace did not refer to the cases submitted by the Crown name he did say he reviewed the caselaw provided by both counsel and he acknowledged the limitation of ankle monitoring. He distinguished the cases submitted by the Crown on their facts. He indicated he agreed with the Crown that on its own ankle monitoring would not be sufficient, but made the point that with two good sureties it added a measure of comfort for the court.
[21] There is caselaw which finds electronic monitoring would not address secondary or tertiary grounds. That is case-specific and not of a universal application. There is also caselaw which finds that electronic monitoring can enhance a good bail plan. In one of the Crown’s cases submitted at the bail hearing, R. v. Osman, the court observed that “electronic monitoring is only useful if it supplements what is already a strong supervisory surety plan”. Similarly in R v. Fleming Justice Trotter (as he then was) noted the accused’s plan could be “further augmented by the use of a GPS monitoring system”. The Crown in the matter before me contends that Justice Trotter was referring to the primary ground in that case. I disagree. Justice Trotter referred specifically to the secondary ground in Fleming when he said he accepted “to a certain extent, but not completely” the Crown’s argument that GPS monitoring could not assist on the secondary grounds. Justice Trotter commented that “Monitoring a physical location of an accused person may prevent in-person meetings and associations with others. Again, while not a panacea, in appropriate cases it may have some utility. I believe it would be helpful in this case.”
[22] Mr. N‘Zoigba’s co-accused, Mr. Mbuyamba was detained by Justice Renaud who commented that his decision might have been different if electronic monitoring had been part of the accused’s bail plan. Justice Desormeau granted a review of the bail plan finding a material change in circumstances and she released Mr. Mbuyamba on a new plan which included electronic monitoring.
[23] On the face of Justice of Peace’s analysis, I see no undue weight attributed to electronic monitoring over other factors. In considering the accused’s risk of reoffence, he referred to the seriousness of the offence, the strength of the Crown’s case and articulated the accused’s presumption of innocence, his right to reasonable bail, his age, the fact he had no criminal record and two good sureties along with house arrest with electronic monitoring as a bail plan.
Impact of COVID 19
Applicant’s Position
[24] The Crown argues that the Justice of Peace erred by taking COVID 19 into consideration in his decision without an evidentiary foundation. The Crown provided the court with numerous cases which state that an evidentiary foundation in required in order for a court to take COVID 19 into consideration.
Respondent’s Position
[25] The respondent argues that the cases provided by the Crown refer to medical risks to accused’s person which is not the case before me. In the matter before me the issue is the impact of COVID 19 on delay in setting trial dates. The respondent argues that numerous courts have taken judicial notice of impact of COVID 19 on delay.
[26] The cases given to me by the Crown indeed all related to accused persons who were alleging medical issues without proper supporting evidence. In the matter before me, the Justice of the Peace noted there was no evidence of medical risk but considered the inevitable delay which would be occasioned in criminal matters as a result of COVID 19. Numerous courts have taken judicial notice of delay, including my colleague Justice Desormeau in Mr. Mbuyamba’s bail review. The Justice of Peace included this as but one factor in his analysis and it is clear on the record before me that it was not given inappropriate or disproportionate weight.
Analysis
[27] The thrust of the Crown’s argument is that given the Justice of Peace’s findings in relation to the four criteria under s. 515(10)(c) detention should have been ordered. The record shows Justice of the Peace Snyder felt the Crown had a strong case but there were triable issues; he correctly identified the alleged offences as very serious; he noted that the circumstances of the offence did not involve violence or the discharge of a firearm and he noted the potential for a lengthy sentence. He weighed those factors against the delay of trial, the accused’s age, the accused’s lack of criminal record, and his good bail plan with release to two sureties on strict conditions including house arrest and electronic monitoring. He considered all of those factors in the context of the accused’s presumption of innocence and entitlement to reasonable bail. He also analyzed the impact of release on public confidence in the administration of justice. In my view, his analysis was in keeping with Justice Trotter’s reasoning in Fleming at para 21 and 22:
“21 At one time, and based on Regina and Mordue, it was thought that when all four factors in Section 515(10)(c) are engaged, with so-called "maximum force", a detention order must be made. Whether the court in Mordue actually said this is open to debate. However, in St. Cloud, the court rejected this proposition. The object of the exercise under Section 515(10)(c) is to determine whether detention is necessary to maintain confidence in the administration of justice. The four enumerated factors feed into that determination, but they are not exhaustive. Writing for the court, Justice Wagner identified other factors that might be important. Adverting to Section 515.10(c)(iii), i.e. the circumstances surrounding the commission of the offence, he said the following:
"I would add that the personal circumstances of the accused, age, criminal record, physical and mental condition, membership in a criminal organization, 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 take into account the fact that the trial of the accused will be held at a much later date."
22 I might add to this that the perceived efficacy of a release plan might be relevant, see Regina and A.B.”
[28] Having reviewed the Justice of the Peace’s decision, the transcripts of the bail hearing and the caselaw submitted by counsel and having considered the arguments of both counsel, in my view, the Justice of the Peace conducted a thoughtful and thorough analysis and properly considered all of the appropriate factors in arriving at his decision. I find no error in his analysis, nor do I find the result incorrect or inappropriate.
[29] The Crown’s application is therefore dismissed.
The Honourable Justice Nathalie Champagne
Date: August 11, 2020