Court File and Parties
COURT FILE NO.: CR– 20 – 90000
DATE: 20200918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L. C.
Counsel:
Anna Martin, for the Crown
James Mencel, for L. C.
HEARD: September 10, 2020
Decision on bail review
P.J. Monahan J.
Reasons for Decision
[1] LC is currently facing three charges laid on March 7, 2017: possession of cocaine for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act (the “CDSA”); possession of proceeds obtained by crime over $5000, contrary to s. 354 (1) of the Criminal Code; and failure to comply with the terms of a recognizance, contrary to s. 145 (3) of the Criminal Code. On March 8, 2019, following a bail hearing she was ordered detained on the secondary ground in s. 515 (10) of the Criminal Code.
[2] LC applies for a review of that detention order pursuant to s. 520 of the Criminal Code. Both parties agree that there has been a material and relevant change in circumstances since the March 8, 2019 detention order and, accordingly, a fresh review of whether LC should be detained is necessary.
[3] The Crown maintains that LC has failed to meet her onus of showing that her continued detention is not justified on the basis of the secondary ground. On the other hand, LC argues that the proposed plan of release is sufficiently strong to allay any concerns arising under the secondary ground. In particular, LC notes that there are two proposed sureties willing to enforce a strict house arrest bail with the support of ankle monitoring. LC submits that there is no substantial likelihood that she will commit further offences or interfere with the administration of justice if released on bail.
[4] For the reasons that follow, I find that the proposed plan of release does not address the substantial concerns arising under the secondary ground. LC’s application under s. 520 is accordingly dismissed.
Background Facts
[5] On March 7, 2017, police executed a search warrant at LC’s apartment on Mutual Street in Toronto. Upon entering the unit to execute the warrant, police found LCs six-year-old daughter alone in the apartment. The police located 59.27 grams of cocaine (25.45 grams of crack cocaine and 34.08 grams of powder cocaine) in a fire hose cabinet in the underground parking lot. The officers were directed to search that location based on a conversation with LCs daughter. They later obtained surveillance video showing LC accessing the fire hose cabinet shortly before the execution of the search warrant. Police also found approximately $70,000 in cash and dozens of items such as high-end women’s purses with price tags still on them. When LC returned to the apartment later that evening she was arrested and charged.
[6] LC remained in custody until September 17, 2017 at which time she was released on a global bail encompassing both the March 7, 2017 charges as well as a number of other outstanding charges. One of the conditions of that global bail was that she reside with her surety, RW, at his residence in Brampton Ontario.
[7] On March 2, 2018, LC was arrested and charged with failing to comply with the requirement of her September 17, 2017 bail that she reside with RW at his residence in Brampton. On March 20, 2018, she was released on a fresh global bail which included the same condition that she reside with RW in Brampton.
[8] On March 2, 2019, LC was again arrested and charged with failing to comply with the conditions of her March 20, 2018 bail. She was also charged with obstruction of a police officer, arising from a struggle which took place during the course of an attempted strip search.
[9] At the bail hearing held on March 8, 2019, LC proposed that she reside with a new surety, EY, who is a longtime close friend. EY was prepared to pledge $20,000 in support of the bail, based on her cash savings as well as the equity in her home.
[10] The bail justice, Hogan J., described EY as an upstanding citizen who wanted to do the best she could for a friend. However, Hogan J. was concerned over the fact that EY did not really understand and was not aware of LCs activities. Given the significant number of prior bails with which LC had failed to comply, Hogan J was of the view that there was a substantial likelihood that LC would reoffend if released on bail. Accordingly, she detained LC on the secondary ground.
Material Change in Circumstance
[11] As noted above, it is conceded that there has been a material and relevant change in circumstance since the March 8, 2019 bail hearing, justifying a fresh review of whether LC’s continued detention is justified.
[12] I note, in particular, that the March 2019 charges which were before the court at the bail hearing were subsequently withdrawn by the Crown. In addition, in August 2019, LC was found guilty of importing cocaine, and possession of cocaine for the purpose of trafficking, charges that had been laid in February 2014. LC was subsequently sentenced to six years and three months, less presentence custody, for those offenses. She is currently serving that sentence and has filed an inmate notice of appeal.
[13] Also relevant is the emergence of the COVID-19 pandemic in March of 2020, which has been widely recognized by courts in this province as constituting a material change in circumstance for purposes of bail reviews.
[14] These circumstances, either individually or cumulatively, could reasonably have affected Hogan J.’s decision to detain LC. I therefore find that there has been a material and relevant change in circumstance and that it is appropriate to undertake a fresh review of whether LCs continued detention is justified.
Proposed Plan of Release
[15] LC proposes that she be subject to a house arrest bail with two sureties as well as GPS electronic monitoring.
[16] LC filed an affidavit stating that she is 38 years old and self identifies as Aboriginal through her father. She has three children, ages 20, 16 and 9. Since she has been in custody, her daughter has been made a Crown Ward. She indicates that she is currently attempting to appeal that decision but finds it very difficult from custody.
[17] LC points out that the charges which gave rise to her March 2019 bail hearing have been withdrawn by the Crown and yet she remains in custody. Although she was convicted in August 2019 of importing cocaine and is currently serving a sentence for that conviction, she plans on appealing the conviction and has filed a notice of appeal. She will be seeking bail pending appeal in respect of her sentence for importing if the detention order made on March 8, 2019 is vacated.
[18] Both proposed sureties testified and were cross-examined at the bail review. CT testified that he has known LC for 10 years. He met LC through his aunt, who is a close friend of LCs mother. However, prior to being contacted by his aunt about a month ago in connection with this matter, he had very infrequent contact with LC. He estimated that he may have seen her a few times over the last three years.
[19] On cross-examination, CT acknowledged that he has limited knowledge of LCs criminal record and was not aware of any details. He does not know very much about LCs family. He has never met her children and does not know their names.
[20] CT also explained that he lives in a two-bedroom apartment with his aunt. When asked why his aunt was not prepared to serve as a surety, he indicated that his aunt had been involved in a prior bail involving LC, as she is RW’s girlfriend. His aunt also has a criminal record but CT does not know the details.
[21] CT indicated that the plan is for LC to reside at his apartment. LC would occupy his bedroom and he would sleep on a couch in the living room.
[22] Although CT has pledged $10,000 in support of the bail, he does not have any significant cash savings and his only source of income is ODSP. He indicated that if required to produce the $10,000 he has pledged, he would sell his mountain bikes and motor vehicle and would ask some friends for money.
[23] The second proposed surety, AB, testified that she has known LC for about five years. She met LC through a mutual friend.
[24] AB has met LC’s daughter a few times, as her son is a friend of LC’s daughter. AB and LC would sometimes take their children to a nearby park to play. AB believes that LC has two children but does not know their names.[^1] AB does not know any of LC’s other family members.
[25] AB learned sometime in the last two years of LCs criminal charges, but is not aware of the specifics. She knew that LC had in the past been convicted of fraud but was unaware of the number of times. AB was unaware of the fact that when LC was arrested in 2017 she was subject to three separate bails. AB has met RW (LC’s surety on a number of her earlier bails) but does not know him, nor does she know any of the other sureties from any of LC’s prior bails.
[26] AB had never met CT, the other proposed surety, until about a month ago when they went for coffee to discuss being sureties together. AB has never been to CT’s apartment.
[27] Although AB has pledged $10,000 in support of LCs bail, her only asset is a seven-year-old motor vehicle of undetermined value.
Positions of the Parties
[28] Given the prior bails in effect at the time of LCs arrest, as well as her current CDSA charges, it is conceded that this is a reverse onus bail.
[29] LC submits that the proposed plan of release is sufficiently strong to address the secondary ground concerns identified by Hogan J. There are two sureties who have known her for a substantial period of time and who together have pledged $20,000. Although LC concedes that the proposed sureties do not have a thorough knowledge of her history and background, they are genuine in their commitment to ensure that LC complies with any conditions of her release. They are prepared to offer round the clock supervision.
[30] In addition, LC points out that the plan is strengthened by the fact that she will be subject to GPS ankle monitoring which will show her location at all times. This will act as a deterrent against any further criminal behaviour since LC will be aware that any breaches of her bail will be quickly detected.
[31] Although LC has been charged on a number of occasions with breaching the terms of various bails, she has not been convicted on any of those charges. Given the presumption of innocence, those prior charges should play no role in the assessment of whether her detention should be continued.
[32] LC self-identifies as Indigenous and is a Black woman. These are relevant considerations favouring release, pursuant to s. 493.2 of the Criminal Code. LC has been in custody since March 2019. She submits that this period of custody has had a significant impact on her and will serve as an additional deterrent from her committing any further offenses if she is released. LC also notes that the COVID-19 pandemic has resulted in the adjournment of her preliminary hearing, initially scheduled for April 2020, significantly delaying the proceedings.
[33] The position of the Crown is that LC has failed to discharge her onus under the secondary ground and her detention should therefore be continued.
[34] The Crown argues that, based on her record and the nature of the outstanding charges, LC appears to be entrenched in the drug subculture, despite no apparent addiction issues. It appears to be a way of life that is highly lucrative and consequently, as recognized by the reverse onus provisions in s. 515 for trafficking offenses, “the normal process of arrest and bail will normally not be effective in bringing an end to criminal behaviour.”[^2]
[35] The Crown argues that the case against LC is strong. She was observed on video accessing the firehose cabinet where the drugs were found shortly before the time of seizure, in addition to being the tenant of the apartment where the cash and other items were seized.
[36] The Crown points out that previous bails have not prevented LC from reoffending. She committed both of the offenses for which she was most recently convicted while on release for other charges. LC is also alleged to have committed the March 2017 offenses with which she is charged while bound by three recognizances, and she has failed to comply with the terms of prior bails in respect of these charges.
[37] With respect to the proposed sureties, the Crown notes that neither of the sureties is familiar with LCs background and prior criminal activity. Although well-meaning, they are not in a position to provide effective supervision to LC. In the absence of such supervision, the use of a GPS ankle bracelet will be ineffective in deterring further criminal activity.
Applicable Legal Principles
a. Basic Principles
[38] As Chief Justice Wagner observed in R. v. Antic, the right not to be denied reasonable bail without just cause is an essential element of our criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons.[^3]
[39] The right to reasonable bail has two aspects. First, a person charged with an offence cannot be denied bail without “just cause”, such that the denial is necessary to promote the proper functioning of the bail system. Second, any conditions upon release must be imposed in accordance with the “ladder principle”, which favours release at the earliest reasonable opportunity and on the least onerous grounds. Further, a recognizance with sureties is one of the most onerous forms of release and should not be imposed unless all less onerous forms of been considered and rejected as inappropriate.[^4]
b. Secondary Grounds for Detention
[40] The Crown relies solely on the secondary grounds in s. 515 (10) as the basis for the continued detention of LC.
[41] An analysis of the secondary ground requires the court to undertake a risk assessment to determine whether, having regard to all the circumstances, it is necessary to continue the detention of the accused for the protection or safety of the public. This risk assessment must include a consideration of whether it is substantially likely that the accused will, if released, commit a criminal offence or interfere with the administration of justice. A “substantial likelihood” requires a probability of certain conduct, not a mere possibility, and the probability must be substantial, in other words, significantly likely.[^5] It is relevant to consider the nature of the alleged offences, the circumstances surrounding their alleged commission, the likelihood of conviction, and the danger that the release of the accused would pose to the community.
Analysis
[42] I begin with an analysis of the strength of the Crown’s case which, in my view, is exceedingly strong. There is video evidence showing LC accessing the firehose cabinet where the drugs were found in close proximity to the time of seizure. LC is also the tenant of the apartment where approximately $70,000 in cash and various luxury goods were found.
[43] LC’s counsel advised that she intends to file a Charter application to exclude the items seized from evidence at trial. However, no such application has been filed and thus it is impossible to assess the prospects for any such an application, or its potential impact on the Crown’s case. Suffice to say that at this stage, the Crown’s case remains extremely strong.
[44] I further find that, in the absence of an appropriate plan of supervision, there is no reason to believe that LC will on her own comply with court orders. I make this finding on the following bases:
a. it is evident that previous bails have not been effective in deterring LC from reoffending. For example, while on bail in February 2014, LC attempted to smuggle approximately 3.9 kilograms of cocaine with an estimated street value of $390,000 into Canada.[^6] In July 2016, while on bail for the February 2014 importing charges, LC was found to be in possession of cocaine for the purpose of trafficking;[^7]
b. LC is alleged to have committed the March 2017 offenses with which she is currently charged while being bound by a number of recognizances, including the bail for the 2014 importing charge as well as the bail for the 2016 possession for the purpose charge;
c. there is significant evidence indicating that LC has failed to comply with the terms of her prior bails in respect of her current charges. These bails required her to reside with her surety, RW, in Brampton. However, at a Rowbotham hearing before Forestell J. in November 2018, LC testified that she was living at her apartment on Mutual Street in Toronto and that RW was living there with her.[^8]
[45] Given this history, I conclude that, without proper supervision, there is a substantial likelihood that LC would reoffend if released on bail. It is therefore necessary to consider whether these secondary ground concerns can be adequately addressed by the proposed plan of release.
[46] Both proposed sureties testified in an entirely straightforward manner. It is evident that they are well-intentioned and wish to assist LC in securing her release. However, I find that neither is in a position to effectively supervise LC. Both sureties appear to be passing acquaintances of LC who have very limited knowledge of her background and prior criminal activity. I simply do not have any confidence that either surety has sufficient influence over LC to ensure she complies with the terms of any release order.
[47] The proposed release plan also includes GPS electronic monitoring. It is well established 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.”[^9]
[48] 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.”[^10]
[49] Given that I have already found that neither of the proposed sureties can effectively supervise LC, I find that the addition of electronic monitoring is insufficient to address concerns over LC reoffending.
[50] It remains to consider whether the fact that LC self-identifies as Indigenous, and is a Black woman, tips the balance in favour of her release, in accordance with s. 493.2 of the Criminal Code.
[51] The Crown provided a June 2019 letter from Aboriginal Legal Services (ALS), responding to a request to prepare a Gladue report in relation to LC. The ALS letter outlined the reasons why the clinic was not able to provide a Gladue Report for LC. I therefore have no basis for assessing how being an Indigenous person might have affected LC’s life circumstances.
[52] Similarly, LC did not provide any evidence indicating how the fact that she is a racialized Black woman might have affected any of the matters relevant to this bail review.
[53] As such, I am unable to find that either of these factors is sufficient to tip the balance in favour of release in this case.
[54] Finally, I note that while the COVID-19 pandemic prevented LC’s April 2020 preliminary hearing from proceeding, the preliminary hearing has now been rescheduled for November 2020. I also observe that all of LC’s period in pretrial custody was taken into account at the time of her November 2019 sentencing for the importing conviction, and that she is currently serving the sentence for that conviction (as opposed to being in pretrial custody on her outstanding charges).
[55] I therefore find that LC has failed to discharge her onus with regards to the secondary ground. Accordingly, her s. 520 application is dismissed.
P. J. Monahan J.
Released: September 18, 2020
COURT FILE NO.: CR– 20 – 90000
DATE: 20200918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L. C.
DECISION ON BAIL REVIEW
P.J. Monahan J.
Released: September 18, 2020
[^1]: As noted above, LC in fact has three children. [^2]: R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 SCR 665 at p. 695. [^3]: R. v. Antic, 2017 SCC 27 ("Antic") at para 1. [^4]: Antic, at para 67. [^5]: R. v. Manasseri, 2017 ONCA 226 at para 87. [^6]: As noted above, LC was convicted of this importing charge in August 2019. [^7]: LC pleaded guilty to the July 2016 charge in February 2019. [^8]: See R. v. LC, Ruling on Rowbotham Application, December 12, 2018 (unreported). [^9]: R. v. Doucette, 2016 O.J. No. 852 (SCJ) at para 5. [^10]: 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.