R. v. Pearson, 2020 ONSC 5252

COURT FILE NO.: DR(P) 1841/19

DATE: 20200902

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. O. Melnik, for the Crown / Respondent

• and -

CRAIG PEARSON

Mr. M. Owoh, for the Accused / Applicant

HEARD: September 1, 2020, via audio conference

DECISION ON BAIL REVIEW APPLICATION

STRIBOPOULOS J.

Introduction

1Mr. Pearson applies under s. 520(1) of the Criminal Code to review the detention order made by Justice of the Peace G. Lin on September 18, 2019.

2Mr. Pearson faces serious charges involving drugs and a firearm. The Crown alleges that he possessed approximately 400 grams of crack cocaine for the purpose of trafficking and a loaded restricted firearm.

3The nature of the charges meant that Mr. Pearson had the burden of justifying his release on bail. At his bail hearing, Mr. Pearson, who was then 29 years of age, and has one prior dated conviction for possessing a controlled substance, proposed his release subject to house arrest and with the supervision of three sureties.

4Ultimately, the Justice of the Peace ordered his detention because she was not satisfied that he had met his burden on both the secondary (s. 515(10)(b)) and tertiary (s. 515(10)(c)) grounds. From the Justice of the Peace's reasons, it is apparent that, in ordering detention, she placed considerable weight on the seriousness of the charges and the apparent strength of the Crown's case.

The Allegations at the Bail Hearing

5As often happens in this province's busy bail courts, the Crown did not call evidence at the bail hearing to detail the evidence to support the allegations. Instead, a synopsis, prepared by the police, was read into the record.

6The synopsis was very brief, and, possibly because of its brevity, somewhat misleading. The synopsis explained that, early on August 19, 2019, under the authority of two warrants, police searched both a residence in Mississauga and a vehicle located in the driveway of that residence. At the time, Mr. Pearson and his co-accused were in the car, and police arrested them. The synopsis reported that "officers located a loaded 9mm Ruger handgun in the rear seat of the vehicle" and that the co-accused was the vehicle's registered owner. Finally, it reported that police found a large quantity of crack cocaine inside the residence, "in an upstairs bedroom .... associated to both accused" where they also found a driver's license in Mr. Pearson's name.

7In an apparent effort to supplement the bare-bones synopsis, the Crown filed an exhibit list at the bail hearing. Based on it, it would appear that police also found an unspecified quantity of crack cocaine in a fanny pack that Mr. Pearson was wearing when he was arrested, along with $2,835 in cash. Further, in the same bedroom where police found the drugs, they discovered approximately $15,000 in cash hidden in three different locations and eight bullets. Finally, there were some baggies and a scale located in the living room of the residence.

The Evidence as Revealed through Disclosure

8Nearly a year has passed since Mr. Pearson's initial bail hearing. Defence counsel now has most, although not all, of Crown disclosure. From that material, it appears that the Crown's case against Mr. Pearson is not nearly as strong as it seemed at the bail hearing.

9First, concerning the firearm, we now know that it was not in plain view "in the rear seat" of the vehicle. Police located the gun behind the co-accused’s seat, beneath a computer, and only after moving three different floor mats. Despite having more than a year to do so, the police have not submitted the gun for forensic fingerprint or D.N.A. analysis.

10Second, concerning the residence where police found the large quantity of drugs, cash, baggies, and a scale, we now know that there were as many as three bedrooms in the home and other occupants present when police executed the warrant. The disclosure provided to date does not reveal very much about the bedroom where police allege that they found the drugs and the cash. For example, did the bedroom contain male or female clothing or both? Were there any photographs of people in the bedroom, and, if so, was Mr. Pearson in these pictures? Beyond the driver's license, were there any other documents, such as identification, correspondence, invoices, or anything of that nature, connecting Mr. Pearson, or other persons, to that bedroom? The disclosure that remains outstanding may assist in answering these questions.

11It would appear that the police took photographs when they executed the search warrant at the residence. Although more than a year has now passed since Mr. Pearson's arrest, the police have still not provided these photographs to the Crown. They remain the subject of an outstanding disclosure request by defence counsel.

12Finally, it would not appear that the police have submitted any of the items from the bedroom where they found the drugs and cash for forensic analysis. For example, police found the crack cocaine inside a plastic shopping bag in a dresser drawer. However, the plastic bag has not been subject to fingerprint analysis.

The Positions of the Parties

13On this application, the parties are in agreement about two matters. First, they agree that there has been a material and relevant change in circumstances since the initial bail hearing, permitting this court to reconsider Mr. Pearson's release on bail. Second, they agree that Mr. Pearson's release on bail would not raise any concerns under the primary ground for detention. The disagreement between the parties focusses on the secondary and tertiary grounds.

14On Mr. Pearson's behalf, Mr. Owoh acknowledges that the charges are serious. Nevertheless, he submits that Mr. Pearson has demonstrated that his detention is unnecessary on either the secondary or tertiary grounds. In so arguing, Mr. Owoh notes that there appear to be triable issues in this case. He also emphasizes that although 30 years of age, Mr. Pearson only has one prior dated conviction for possessing a controlled substance for which he received a $300 fine. Finally, he emphasizes the release plan, with three sureties, a pledge of as much as $50,000 by one of them, and a house arrest condition policed through a GPS ankle monitor. Mr. Owoh submits that the stringent release plan should assuage any concerns the court might otherwise have regarding either the secondary or tertiary grounds for denying bail.

15For the Crown, Mr. Melnik argues that Mr. Pearson's release on bail would give rise to public safety concerns and undermine confidence in the administration of justice. Although Mr. Melnik acknowledges that the Crown's case is not nearly as strong as it seemed at the bail hearing, he argues that it is still formidable.

16Concerning public safety, Mr. Melnik emphasizes the serious nature of the charges, involving 400 grams of crack cocaine and a loaded handgun. He notes the close connection between guns, drugs, and violence and the profit motive that often causes those involved in the drug trade to re-offend. These concerns, along with a release plan that would have Mr. Pearson reside with a surety who has two young children, Mr. Melnik argues, gives rise to significant public safety concerns, especially for the surety's children. Further, he argues that none of the proposed sureties are especially close to Mr. Pearson, which raises questions about their ability to control his behaviour while on bail and the release plan's likely effectiveness.

17Turning to the tertiary ground, Mr. Melnik submits that each of the factors identified in s. 515(10)(c) point towards the need for detention. He argues the Crown still has a strong case. The charges are most serious and involve a firearm. And, if convicted, Mr. Pearson faces a lengthy penitentiary sentence. Given all of this, combined with a release plan that would have Mr. Pearson living in a home with young children, Mr. Melnik submits that Mr. Pearson’s release on bail would undermine confidence in the administration of justice.

Law and Analysis

18When an accused brings an application under s. 520(1) seeking to review a detention order, the reviewing court is not automatically entitled to reconsider the initial bail decision: see R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 92, 118-120. To justify intervention by the reviewing court, the applicant must demonstrate that: (1) the original justice erred in law; (2) the impugned decision was inappropriate (i.e., the justice gave excessive or insufficient weight to relevant factors); or (3) there is admissible new evidence that shows a material and relevant change in the circumstances of the case: St-Cloud, at paras. 120, 139.

19I agree with the parties that, in this case, there has been a material and relevant change of circumstances. First, with the benefit of Crown disclosure, it is apparent that the Crown's case is not nearly as strong as it seemed at the initial bail hearing: see R. v. A.A.C., 2015 ONCA 483, at para. 83. Second, the more stringent release plan, including the proposal for a G.P.S. ankle monitor to ensure compliance with the proposed home confinement condition, also represents a material change in circumstances: see R. v. Thanigasalam, 2019 ONSC 3648, at para. 29; R. v. Karbalaei-Heydari, 2019 ONSC 5212, at para. 12.

20Accordingly, on this application, the court is entitled to consider the evidence de novo and decide if Mr. Pearson has demonstrated that his detention is not justified under s. 515(10) of the Criminal Code: St-Cloud, at para. 138.

(a) The primary ground

21The parties agree that there is no issue concerning the primary ground for ordering detention (s. 515(10)(a)). Given that Mr. Pearson is a Canadian citizen with a supportive family and roots in the community, combined with his lack of any prior criminal record for failing to attend court, I am satisfied that his detention is unnecessary to ensure his attendance at court.

(b) The secondary ground

22Section 515(10)(b) of the Criminal Code requires pre-trial detention where it "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." Under this provision, the "danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention": R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 736. Instead, detention is only warranted where an accused poses a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public": Morales, at p. 737. A "substantial likelihood" refers "to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely": R. v. Manasseri, 2017 ONCA 226, at para. 87 (In Chambers).

23I am satisfied that Mr. Pearson's release on bail, subject to stringent conditions, does not give rise to a substantial likelihood of him committing an offence endangering public safety. I have come to that conclusion for several reasons.

24First, while I recognize that the release of an accused who faces serious charges and overwhelming evidence could, in itself, give rise to secondary ground concerns that would foreclose bail, I am not convinced that this is such a case. To be sure, the charges are very serious, involving a substantial quantity of crack cocaine and a loaded firearm. However, as explained above, the Crown's case, viewed more realistically now with the benefit of disclosure, is far from overwhelming. There would appear to be triable issues concerning Mr. Pearson's possession of both the drugs in the bedroom and the firearm in the car.

25Second, although he is 30 years of age, Mr. Pearson's criminal record consists of a single conviction, from 2011, for possessing cocaine, for which he received a $300 fine. Critically, in my view, he does not have any prior history of failing to abide by court orders. As a result, the court has no reasoned basis for concluding that Mr. Pearson would likely disregard the terms of his release if granted bail.

26I recognize that the Supreme Court of Canada upheld as constitutional the reversal of the burden at bail hearings involving commercial drug crimes, in part, based on concerns that those charged with such offences, given their profit motive, are more likely to re-offend: see R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665. However, that general concern does not mean that whenever an accused faces such a charge, the court is also to presume that they will necessarily pose a substantial likelihood of re-offending if released on bail. Bail decisions are made based on the actual circumstances of the specific accused and their particular case.

27Third, Mr. Pearson has put forward a strict and comprehensive plan of release. Essentially, a house arrest bail order with narrow exceptions. On bail, he will also be subject to supervision by three responsible sureties. One of the sureties, his uncle, Michael Pearson, owns his own home. He is willing to pledge $50,000 to secure Mr. Pearson's release. A second uncle, Christopher Pearson, who is of lesser means, is prepared to pledge a more modest sum and supervise Mr. Pearson while on bail. Finally, a friend, Ms. Brown, who has known Mr. Pearson for five years, is prepared to act as a surety and allow Mr. Pearson to live with her. Ms. Brown has two young children, and she works during the day. While at work, her mother attends her residence to watch the children. As a result, Mr. Pearson will never be left at home unsupervised.

28Beyond the three sureties and Ms. Brown's mother, technology will also assist in Mr. Pearson's supervision while on bail. Ms. Brown has a video camera installed at her home, pointed at her front door. The feed from that camera links to an app on her phone, allowing her to monitor it remotely. She has shared access to the app with Mr. Pearson's uncles, who can also view the feed on their phones. As an added safeguard, Mr. Pearson must wear a GPS ankle monitor to ensure strict compliance with the home confinement condition. Should he try to remove the device or leave the residence without following the monitoring company's protocol, which requires confirmation in advance from one of the sureties that they are with him, then the police will be notified by the monitoring company.

29Finally, unlike the Crown, I am not troubled that the release plan envisions Mr. Pearson living in a home with two young children. Under the plan, Mr. Pearson will never be home alone with the children. Beyond that, the Crown’s concern that Mr. Pearson’s presence in the home will somehow endanger the children has no evidentiary basis. It is entirely speculative. Importantly, Mr. Pearson does not face a charge of victimizing a child. Nor does he have a criminal record for committing such offences.

30For all of these reasons, I am satisfied that, if granted bail, Mr. Pearson does not pose a substantial likelihood of committing further offences that would endanger the public.

(c) The tertiary ground

31Section 515(10)(c) of the Criminal Code provides that the detention of an accused person in custody is justified if it is necessary "to maintain confidence in the administration of justice … having regard to all of the circumstances." The provision also sets out a non-exhaustive list of factors that the court must consider in making this determination: s. 515(10)(c)(i)-(iv).

32Some of the factors enumerated in s. 515(10)(c) weigh in favour of ordering detention in this case. For example, the offences are serious and involve a firearm, and, if convicted, Mr. Pearson undoubtedly faces a lengthy term of imprisonment. That said, although I would not suggest that the Crown has a weak case, nor am I of the view that it is especially strong. In short, there are triable issues in this case. It would appear that the Crown faces significant obstacles in proving that Mr. Pearson possessed the drugs and the firearm beyond a reasonable doubt.

33In assessing whether or not detention is necessary to maintain confidence in the administration of justice, the concern is with public confidence: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 41; St-Cloud, at para. 72. The measure is the perception of "reasonable members of the community." People who are dispassionate, thoughtful, well-informed, and familiar with the basics of the rule of law, the fundamental values of our criminal law, and the rights guaranteed by the Charter, including the presumption of innocence, the right to reasonable bail, and the right to be tried within a reasonable time: St-Cloud, at paras. 72-87.

34To be sure, such individuals are deeply troubled by the plague of guns and drugs in our community. However, despite the serious charges, reasonable members of the community, fully apprised of all the circumstances, would also find Mr. Pearson's continued detention concerning. After all, there are triable issues in this case, and Mr. Pearson is presumed innocent. Further, Mr. Pearson has no history of failing to abide by court orders. Finally, while on bail, he will be subject to strict and comprehensive terms that will ensure the safety of the public.

35After considering all of the circumstances, including the factors enumerated in s. 515(10)(c), I am persuaded that Mr. Pearson's release on bail, subject to the strict terms proposed, would not cause reasonable members of the community to lose confidence in the administration of justice.

Conclusion

36For all of these reasons, the court orders Mr. Pearson's release on bail, on the following terms:

1. With three named sureties:

• Michael Pearson, pledging $50,000, with no deposit;

• Christopher Pearson, pledging $2,500, with no deposit;

• Stephanie Brown, pledging $500.00, with no deposit;

2. You are to reside with your surety, Stephanie Brown, at 1 Fountainhead Road, Apt. 2202, Toronto, Ontario, and be amenable to the rules of her home.

3. You are to be subject to GPS monitoring by Recovery Science Corporation (RSC) which shall include:

i. Upon release from the institution, you must return directly to your surety’s residence and remain there for up to 48 hours or until installation/activation of the GPS equipment is completed.

ii. Entering RSC's Participant Agreement and comply with its terms;

iii. Wearing a GPS ankle bracelet at all times;

iv. Permitting RSC to install supplementary equipment and to inspect, replace, and maintain equipment as it deems necessary;

v. Complying with the RSC leave notification and charging requirements; and

vi. Cooperating fully with RSC staff, including making yourself available at your surety’s residence as directed by RSC staff.

4. You are to provide notice to RSC within 3 hours of any termination or variation in the terms of your release. Notwithstanding any order terminating or varying these terms, you shall continue to abide by the terms relating to RSC's GPS monitoring until RSC confirms it has received notice of the termination or variation directly from the Crown, the police, or court staff.

5. You are to remain inside Stephanie Brown's residence, at 1 Fountainhead Road, Apt. 2202, Toronto, Ontario, at all times, except:

i. If you are in the direct and continuous presence of one of your named sureties;

ii. In the case of a personal medical emergency, to travel directly to, while at, or returning from the hospital;

iii. To travel directly to court for scheduled court appearances, while at court for scheduled court appearances, and while travelling directly back to Stephanie Brown's residence after scheduled court appearances.

6. You are not to possess any non-medically prescribed controlled substances, as defined by the Controlled Drugs and Substances Act.

7. You are not to possess any weapons as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted device, ammunition or explosive substance, or anything designed to be used or intended for use to cause death or injury or to threaten to intimidate any person);

8. You are not to apply for any authorization, license, or registration certificate for any weapon as defined by the Criminal Code.

Epilogue

37The Criminal Code contemplates that at a bail hearing, the prosecutor will adduce evidence "to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused.": Criminal Code, s. 518(1)(c)(iv).

38In practice, prosecutors rarely call such evidence. Instead, accused, usually anxious for their bail hearing to proceed, invariably consent to the prosecutor reading-in the allegations from a police synopsis. That is because insisting on evidence will usually necessitate an adjournment so that a police officer familiar with the case can attend court to testify. Adjournments for up to three days are permissible without the accused's agreement: Criminal Code, s. 516(1). Consequently, a synopsis is the usual source for information about the case at bail hearings in Ontario, and evidence the rare exception.

39The police are undoubtedly under considerable time constraints in preparing such documents. Following an arrest, the accused must be brought before the bail court without unreasonable delay, and, as an outer limit, within 24 hours: Criminal Code, s. 503(1)(a). In such a hurried atmosphere, mistakes are somewhat inevitable. Nevertheless, the evidence should never be embellished, or exaggerated, and evidentiary gaps should never be glossed over. The reason is somewhat obvious.

40The justice who decides whether or not to grant an accused bail relies on the synopsis to assess the strength of the Crown's case. That assessment can often prove a critical consideration when applying each of the criteria for granting or denying bail. For example, in this case, it proved the decisive factor under both the secondary and tertiary grounds. As a result, a misleading synopsis could result in an unjustified loss of liberty. As Iacobucci J. insightfully observed in Hall, at para. 47:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

41Unfortunately, in this case, the synopsis read in at the initial bail hearing did not fairly and accurately set out the evidence against the accused. It glossed over that a police officer only found the firearm in the backseat of the car after moving a computer and three floor mats. It created the erroneous impression that the Crown had an overwhelming case against the accused concerning very serious firearm charges. Given that Mr. Pearson has spent almost a year in pre-trial detention, it should go without saying that the court finds all of this extraordinarily troubling.

Signed: J. Stribopoulos