Court File and Parties
COURT FILE NO.: CR-20-00000307-00BR DATE: 20201013
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – PASQUALE PECCHIA
Counsel: Jon McGrath, for the Crown David Goodman, for Mr. Pecchia
HEARD: October 6, 2020
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT on bail review
Introduction
1Mr. Pecchia was detained on gun trafficking and other charges. He brought a bail review. On October 5, 2020 I heard that review and ordered that he be released with reasons to follow. These are my reasons.
Background
2On July 14, 2020 police officers executed a search warrant on a storage locker at 137 Queens Plate Drive in Etobicoke. The police seized 11 firearms, 10,000 rounds of ammunition, and four kilograms of drugs. The target of the warrant, Samuel Morris, did not possess a licence to own any of the firearms. Five of the firearms were registered to Mr. Pecchia.
3Mr. Pecchia does have a firearms licence. He owned four firearms other than the ones found in the storage locker. On August 26, 2020, the police executed a warrant at Mr. Pecchia’s home in Barrie. They found only one of the four remaining firearms registered to him. They also found an unregistered firearm, a shotgun. Mr. Pecchia did not report that any firearms were stolen. Thus, three firearms are unaccounted for.
4The police arrested Mr. Pecchia and charged him with multiple counts of firearms trafficking; possession of firearms for the purposes of weapons trafficking; and failing to report the loss of firearms.
The Initial Bail Hearing
5On September 10, 2020 Mr. Pecchia had a bail hearing before Madam Justice Bellmore of the Ontario Court of Justice. The bail hearing was reverse onus by nature of the trafficking charges. The Crown conceded that Mr. Pecchia could meet his onus on the primary and secondary grounds. The sole issue, therefore, was whether Mr. Pecchia could meet his onus on the tertiary ground – whether his detention was justified to maintain confidence in the administration of justice.
6Mr. Pecchia has a criminal record. It includes a conviction for break and enter and theft; convictions for possession of a narcotic; and one conviction for driving “over 80”. It is dated. Mr. Pecchia’s last conviction was in 1993, 27 years ago. Justice Bellmore did not find that the record carried much weight and the Crown, quite reasonably, did not contest that point on the bail review.
7Mr. Pecchia presented a plan of release to Justice Bellmore. The plan was for him to have two sureties: Jennifer Audsley, his common law spouse and mother of their 17-year old son; and Donato Girimonte, Mr. Pecchia’s employer and friend. Mr. Pecchia resides in Essa. Ms. Audsley lives in Oakville with their son at the home of her mother and step-father. Mr. Pecchia’s son resides in Oakville because he has special needs. His school in Halton Region has better resources for him than a similar school in Barrie. The family sees each other on the weekend. The plan was that Mr. Pecchia would reside either in Oakville with Ms. Audsley, or in Barrie with Mr. Girimonte. Mr. Pecchia would continue to work in the business. He would either be driven to work every day by Ms. Audsley or by Mr. Girimonte. Either way, he would be on a house arrest unless he was at work and/or in the presence of a surety.
8Justice Bellmore found that the plan was adequate to address the primary and secondary grounds, but not the tertiary ground. She was troubled that Mr. Girimonte kept weapons in the house. She was also troubled that Ms. Audsley, although in a long-term relationship with Mr. Pecchia, was unaware that he had a dated criminal record. She was further troubled that Ms. Audsley did not appear to know how many weapons Mr. Pecchia kept.
Standard of Review and Alleged Errors
9Mr. Goodman, for Mr. Pecchia, argues that I should intervene in the bail decision because Justice Bellmore erred in law when she made the following comment:
Although this section clearly directs the Court to consider all the circumstances, there is, as I’ve indicated, a non-exhaustive list of four factors to consider in assessing public confidence in the administration of justice. I find that in this case, all four factors enumerated in this section of the Criminal Code are present to their maximum.
10Mr. Goodman argues that the evidence simply does not support that all four of the factors under the tertiary ground are “present to the maximum”. He argues that it shows that Her Honour did not appropriately weigh each factor and balance them to achieve an appropriate result.
11I cannot entirely agree with Justice Bellmore’s evaluation that all four factors are present to the maximum. The Crown’s case on gun trafficking, while strong circumstantially, is hardly unassailable: there are no surveillance photos, video, or wiretaps. The Crown may be reliant on an observation by Jennifer Audsley – Mr. Pecchia’s common law spouse and mother of his child – that she saw Samuel Morris at Mr. Pecchia’s business. As well, the charges are obviously serious. I note that Parliament chose to enact minimum penalties (although several judges of this court have found that the mandatory minimum of three years for a first offence found in s. 99(1) of the Criminal Code is unconstitutional: see R. v. Bruce, 2019 ONSC 5865). At the same time, Parliament also chose to make the maximum penalty for gun trafficking ten years imprisonment, which is less than the penalty for the most serious offences in the Criminal Code, being either 14 years or life imprisonment.
12Guns, of course, are a plague on this community. I have made the point myself several times in both sentencing and bail decisions. I agree with the observations of Harris J. in R. v. Kawal, 2018 ONSC 7531 (a sentencing case) at paras. 11-15 with regard to handguns. I particularly agree with his comment at para. 16:
A person does not stumble upon an illegal handgun. There is a process of purchasing from a trafficker and secreting the handgun to avoid detection and prosecution. There is a high degree of deliberation and contemplation involved. In order to dissuade those who would possess and use firearms, there is a duty to ensure that there is no mistake about the not-give-an-inch opposition and contempt for all that handguns represent. The utilitarian philosophy animating general deterrence is pertinent. The danger handguns pose to the community cannot be overstated. Word must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences.
13Of course, there is caveat here: the firearms in this case are legal long guns (three rifles and two shotguns) and not illegal handguns. Legal rifles and shotguns in the wrong hands are every bit as terrifying and lethal as handguns, obviously, but handguns can be secreted and used by criminals in a way that long guns cannot. Thus, long guns of this type are one small rung below handguns on the ladder of seriousness – which means that I question whether the factor of seriousness is present to the maximum.
14That said, as Wagner J. noted in R. v. St. Cloud, 2015 SCC 27 at para. 27, I do not have the power to interfere with the bail judge’s decision simply because I would have weighed the factors differently. In R. v. Dang, 2015 ONSC 4254, Trotter J. (as he then was) found at para. 37 that reviewing judges should take a deferential approach not unlike that taken by appellate judges on a sentence appeal: unless there has been “some demonstrable error or problem in the handling and balancing of relevant and irrelevant factors, a reviewing judge should not intervene.” While I may have evaluated the factors on the tertiary ground differently, I cannot say that Justice Bellmore made a demonstrable error, weighed the factors incorrectly, or took into account irrelevant factors. Indeed, Her Honour was careful to state that detention is not automatic, even where all four factors are present at their maximum strength. She also correctly noted that an evaluation of the tertiary ground does not involve simply ticking the boxes.
15Accordingly, I do not agree that Justice Bellmore erred in law.
Material Change of Circumstances
16Mr. Goodman’s second argument is that there has been a material change of circumstances. He has presented a new plan. Mr. Girimonte is no longer a surety. The current plan is that Mr. Pecchia reside the home of Jennifer and Christine Audsley in Oakville under house arrest. Jennifer Audsley and Christine Audsley will be the sureties. Mr. Pecchia may, or may not do some renovation work with Christine Audsley’s husband. Mr. Pecchia will also wear an ankle monitor from Recovery Sciences Corporation. The proposed sureties will pay for the monitor.
17Jennifer Audsley testified at the original bail hearing. Justice Bellmore was troubled by some aspects of her testimony. Her Honour found it surprising that she did not know that Mr. Peccia had a criminal record; and that Ms. Audsley also mistakenly believed that he had only one firearm. Nonetheless, Justice Bellmore found:
Notwithstanding the frailties of the proposed sureties, both seemed to take their role as surety seriously. Both have indicated that they will have no hesitation in calling police should Mr. Pecchia violate any term of his bail. And they both acknowledge that they knew that doing so would result in him being re-arrested.
18Christine Audsley testified. She is the mother of Jennifer Audsley and grandmother of Mr. Pecchia’s son. She is recently retired from a career in the Ontario Public Service. She was also unaware of Mr. Pecchia’s criminal record until he faced these charges. She was aware that he had a firearm, but believed that it was for hunting. She was a surety for someone many years ago. That person did not breach his or her bail conditions. Ms. Audsley was somewhat vague about the nature of the work that Mr. Pecchia might be doing. Her husband, Jennifer Audsley’s step-father, does renovation work at the Six Nations Reserve near Caledonia. There may be an opportunity for Mr. Pecchia to assist him and obtain paid work. Christine Audsley testified that there have been no attempts to obtain permission from the elders of the Reserve. She testified that if they objected, Mr. Pecchia would not work there.
19There are some troubling aspects to Christine Audsley’s testimony. She appears not to be fully aware of the allegations against Mr. Pecchia. She does not appear to understand that he is charged with trafficking weapons to a person who had them in a locker along with 10,000 rounds of ammunition and four kilograms of drugs – although I hasten to add that the Crown has made no allegations against Mr. Pecchia in relation to other contraband found in that locker. Crown counsel did not suggest that she is personally unsuitable, or that she is insincere about her intention to properly supervise Mr. Pecchia, and I agree. Overall, I find that she is a suitable surety. I found her to be forthright about what she knew and what she didn’t know. She has been a surety and appears to understand her obligations. I am confident that she can be relied on to contact the police in the event Mr. Pecchia breaches a condition.
20Crown counsel argued that the work plan was vague and does not give confidence in the plan overall. I agree that the plan is vague, and somewhat informal but I find it to be a neutral factor. If Mr. Pecchia is able to work legitimately and earn some money while in the company of one of his sureties, then I think that would be to the good. The key point is whether the sureties can supervise him adequately, and in my view whether he does some renovation work or not is beside the point as it is not a critical component of the plan.
21Crown counsel also pointed out that ankle monitoring would do little to achieve compliance in this case. I agree that ankle monitoring is not decisive. In R. v. Ma, 2015 ONSC 7709 at para. 55 I observed that ankle monitoring on the tertiary ground was irrelevant, at least in that case. Mr. Ma was simply not releasable on the tertiary ground given the circumstances. I do not wish to be taken as saying that ankle monitoring can never add to a plan on the tertiary ground. Mr. Ma was a violent, dangerous person and the ability of the sureties to supervise him were questionable. In the circumstances of this case, however, the fact that the sureties are prepared otherwise suitable and prepared to pay for Mr. Pecchia’s ankle monitor gives me some confidence that they are invested in the success of the plan. I agree that the observations of Molloy J. in R. v. T.L., 2020 ONSC 1885 at para. 22 apply here:
It is, of course, obvious that an ankle bracelet cannot prevent an accused from breaching his bail conditions and committing an offence. The function of the bracelet is to alert the authorities immediately if there is a breach. The accused could simply leave the home even though wearing the bracelet, which would make him easier to track. Or, theoretically, he could cut off the bracelet (although not an easy task), in which case the alarms will go off and the breach will be immediately known. In either event, Mr. L. could reoffend. However, just because it would be possible to commit a crime while on bail, notwithstanding an ankle bracelet, does not mean that an ankle bracelet is not a useful supervision tool in many bail situations. It has, at the very least, a psychological deterrent effect. Mr. L. will know that any breach, no matter how minor, will be detected and reported. He will have no illusions about his sureties not betraying him. The electronic bracelet will not be swayed by emotion. I believe the ankle bracelet also reinforces for the sureties and other people in the home the importance of strict compliance with the terms of the bail.
22In my view, therefore, the replacement of Mr. Girimonte with Christine Audsley, the house arrest provision, and the ankle monitoring amount to more than “reshuffling the deck” of sureties and amounts to material change in circumstances, and that the nature of the new plan calls into question the continued validity of the detention order: R. v. Ferguson, 2002 CarswellOnt 1623, [2002] O.J. No. 1969 at para. 17. I find that the new plan is sufficient for Mr. Pecchia to meet his onus on the tertiary ground.
23When I evaluate the factors in s. 515(10)(c) of the Criminal Code, I find that the Crown’s case is a strong one, although not overwhelming. When I evaluate the gravity of the offence and the circumstances of the offence (the second and third factors) I find that the offence is a very serious one; and that the circumstances are troubling. As I pointed out, the alleged trafficking involves legal long guns, not illegal handguns, which would surely be more aggravating. I am also aware that Mr. Pecchia could be liable for a very lengthy sentence of imprisonment, even assuming that the mandatory minimum does not apply. I find that the new plan of release is sufficient to maintain confidence of the administration of justice. In my respectful view, an ordinary person, aware of the presumption of innocence and Charter values, would not lose confidence in the administration of justice if Mr. Pecchia were released on a house arrest bail with two good sureties and a reasonable plan.
Disposition
24Accordingly, Mr. Pecchia is released on the conditions I set out when I gave my oral ruling on October 6, 2020.
Released: October 13, 2020
COURT FILE NO.: CR-20-00000307-00BR DATE: 20201013
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – PASQUALE PECCHIA
REASONS FOR JUDGMENT ON BAIL REVIEW
R.F. Goldstein J.