COURT FILE NO.: 4794/20
DATE: 2020/09/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Donna Polgar, for the Federal Crown
Respondent
- and -
Tyana Wray
Robert Christie, for T. Wray
Applicant
HEARD: September 17, 2020
RESTRICTION ON PUBLICATION INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED IN ANY WAY PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE OF CANADA
THE HONOURABLE JUSTICE G.B. GAMBACORTA
REASONS FOR DECISION
[1] This is a review under s.520 of the Criminal Code from the detention order made by Justice of the Peace T. Lavallee of the Ontario Court of Justice on July 21, 2020.
[2] The applicant was detained on several criminal charges relating to possession for the purpose of trafficking fentanyl, possession of proceeds of crime and possession of weapons dangerous, uttering threats, and breaches, after a bail hearing which was held on July 16, 2020, by audio conference during the COVID-19 pandemic. The applicant brings a bail review which was also heard remotely, by way of a Zoom hearing, on September 17, 2020.
[3] The applicant cites a material change in circumstances which allows this court to intervene. The applicant argues that the addition of electronic monitoring to the plan, is one such change.
I. ISSUE
a. Has there been a material change in circumstances due to the proposed addition of an electronic monitoring condition?
II. FACTS
[4] At the s.524 Criminal Code show cause hearing, the Crown indicated that Ms. Wray did not have a criminal record and, on consent, read the factual allegations into the record.
[5] The Crown indicated that on November 25, 2019, Ms. Wray was the passenger in a vehicle being driven by her cousin, which was stopped by police investigating a gun call. As police initiated the stop, a white container was thrown out the front passenger window which contained 661 pills. Both Ms. Wray and her cousin were arrested, and a search of the vehicle revealed a working digital scale and a black imitation Glock handgun under the passenger seat. There were cell phones located in the vehicle as well as a Gucci purse on the backseat, within which police located pills wrapped in a grocery bag and $214.00. The pills tested as fentanyl and Ms. Wray was charged with possession for the purpose of trafficking fentanyl, possession of a weapon for a dangerous purpose, and possession of proceeds of crime. In relation to these charges Ms. Wray was released with the consent of the Crown on December 23, 2019 to her mother as surety, on a recognizance of bail with a $5,000.00 promise to pay with terms, amongst others, that she reside with her mother and stay out of the Niagara Region.
[6] Further, the court heard that on January 19, 2020 Ms. Wray was arrested for uttering threats to cause death to an intimate partner, based on allegations arising out of an incident in Brampton, ON, where it was alleged that Ms. Wray threatened Devin Hall by texting “ I have my stick and I will put two into you”. On January 20, 2020 Ms. Wray was released with the consent of the Crown, to her mother as surety, on a recognizance with a promise to pay of $3000.00, and strict terms including house arrest.
[7] Then, the court heard that on June 3, 2020, while conducting surveillance on an apartment building associated with drug activity in Welland, ON, Niagara police observed Ms. Wray entering the building with three other females and leaving fifteen minutes later. Police followed the vehicle to Niagara Falls and arrested the occupants at 12:32 a.m. Search of the vehicle revealed 83.3g of fentanyl wrapped in plastic (approximate value $24,900.00), cell phones and $1305.00 in Canadian currency. Ms. Wray was charged with possession of fentanyl for the purpose of trafficking and for breaching her recognizance. She was also charged with a further count of breaching her recognizance, as she was observed by the surveillance team attending that same building in Welland, ON May 9, 2020, while bound by a condition to stay out of the Niagara Region.
[8] At her bail hearing, the applicant was required to show cause why her detention was not justified based on the nature of the s.524 Criminal Code hearing and the nature of the charges. The Crown cited primary, secondary and tertiary ground concerns with the plan that was proposed.
[9] The plan was a release on a recognizance, to her sister Cephra Hasfal as surety, with a $5000.00 promise to pay and strict terms including house arrest. The applicant was to reside at her mother’s home in Leamington, Ontario, under the supervision of her surety. Justice of the Peace Lavallee detained Ms. Wray on the tertiary ground set out in s.515(10)(c) of the Criminal Code for failing to meet her onus.
[10] The applicant does not argue any legal errors on the part of the presiding justice of the peace.
THE PLAN PROPOSED AT THE BAIL REVIEW
[11] The plan proposed at the bail review included naming Cephra Hasfal, the applicant’s sister, as a surety for the applicant, a $5000.00 promise to pay, a strict house arrest term and the addition of electronic monitoring surveillance.
III. THE LAW
POWER OF THE REVIEWING JUDGE ON S.520, 521 Cr. C. BAIL REVIEWS
[12] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Court, at paras. 120-121, 139, held that sections 520, 521 Cr. C. do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The court held that it will only be appropriate for the reviewing judge to intervene if (a) the initial justice erred in law, (b) the initial justice’s decision was clearly inappropriate, “that is the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another”, (c) new evidence is tendered which shows a material and relevant change in the circumstances of the case.
EVIDENCE ADMISSIBLE AT s.520, 521 BAIL REVIEWS
[13] In St. Cloud, at paras.122-129, Justice Wagner held that in order for new evidence to be admissible at a bail review hearing it must meet, with modifications, the established criteria for the admissibility of new evidence on appeal as outlined in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 775.
[14] Justice Wagner set out the four criteria, with the modifications relevant to bail reviews at paras-128-139 of St. Cloud as follows:
a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; in criminal cases this criterion should not be applied as strictly as in civil cases and the reviewing judge must consider whether there were legitimate grounds for not tending the new evidence at the original bail hearing.
b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; in the bail review context the evidence need not be decisive or potentially decisive. It will suffice if the evidence is relevant for the purposes of s.515(10) Cr. C..
c. The evidence must be credible in the sense that it is reasonably capable of belief; the new evidence must be interpreted in light of the relaxed rules of evidence at the bail stage as outlined in s.518(1)(e) which requires the evidence to be credible and trustworthy.
d. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result; the new evidence must be reasonably capable of affecting the balancing exercise engaged in by the justice under s.515(10)(c) Cr.C. The new evidence must be significant.
IV. ANALYSIS
a. Has there been a material change in circumstances due to the proposed addition of an electronic monitoring condition?
[15] The plan being proposed is virtually identical to the plan that was before Justice of the Peace Lavallee. It includes the same surety, the same quantum of security, and the same terms of release proposed at first instance, with the only addition being a proposed electronic monitoring term. I also note that the condition being proposed has not been factually established. Although there is evidence that the applicant agrees to be bound by such a condition, there is no information before the court identifying the availability of the coverage where the applicant would reside. The application record simply contains blank Recovery Science Corporation enrollment forms and the applicant’s affidavit stating that she is willing to wear the monitoring tool.
[16] While on its face, the addition of a new term is a change to the previous plan, the question is whether it constitutes a material change in circumstances that could have affected the balancing exercise engaged in by the justice-at-first-instance under s.515(10)(c) of the Code.
[17] Assuming that the electronic monitoring would be available to the applicant, the addition of that condition to the plan is not significantly different than what was proposed at the original bail hearing. At that time, the court heard evidence that the plan would also include a household security system to help with the supervision of the applicant. Thus, a risk management tool formed part of the original plan and was factored into the bail justice’s analysis, making the proposed change less significant.
[18] Reviewing the bail justice’s reasons for detention reveals that the applicant did not meet her onus on the tertiary ground. The bail justice did not have confidence that the plan that was presented would sustain public confidence in the administration of justice. She did not find the applicant’s sister to be a suitable surety, and moreover did not find the applicant herself suitable for release. She noted that Ms. Wray was previously released on the strictest terms and found herself back before the court. I find that the addition of an electronic monitoring term is a minor modification to the plan that was before the bail justice and I find it would not have affected her reasons for detaining Ms. Wray on the tertiary ground.
V. CONCLUSION
[19] Therefore, I do not find that the addition of electronic monitoring, in the circumstances of the bail plan as proposed represents a material change in circumstances as contemplated by Wagner J. in St. Cloud.
VI. ORDER
[20] The application is dismissed.
“JUSTICE G. B. GAMBACORTA”
G.B. GAMBACORTA, J.
Released: September 21, 2020
COURT FILE NO.: 4794/20
DATE: 2020/09/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Tyana Wray
Applicant
REASONS FOR DECISION
Gambacorta J.
Released: September 21, 2020