COURT FILE NO.: CV-20-269-00

DATE: 2020 10 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Shanna Ferrone for the Respondent Crown

• and –

CHUNNEL PHILLIPS

Mitchell Chernovsky for the Applicant

HEARD: October 6, 2020 by Zoom video conference

PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES

RULING ON BAIL REVIEW

D.E HARRIS J.

1The applicant Chunnel Phillips applies under Section 520 of the Criminal Code to review the detention order against him made by Justice of the Peace D. Florence on December 13, 2019.

THE ALLEGED OFFENCES

2This is a firearm possession case. It was a reverse onus because at the time of his alleged possession, Mr. Phillips was bound by a 10 year firearms prohibition order.

3On September 4, 2019, a search warrant was executed on an apartment at 7555 Goreway Drive in Brampton. Cocaine and fentanyl were found and two people were charged. Mr. Phillips was present and, after being arrested, was transported to the police station but was released without charge. However, Peel Regional Police received information from the Toronto Police Services in relation to a vehicle associated with Mr. Phillips. A search warrant was obtained for it. The vehicle was located parked in the lot at 7555 Goreway Drive, the building where the applicant and the two other men had been arrested. On September 6, 2019, the warrant was executed.

4Two semi-automatic fully loaded firearms were discovered under the driver’s seat of the vehicle. They would have been accessible to a person driving the car. One of the guns was a .45 calibre Glock, the other a .40 calibre firearm. A wallet was found which contained multiple pieces of Mr. Phillips’ photo identification including his health card. His passport was also found. An undisclosed amount of cash was found in the glovebox in 20, 50 and 100 denominations. Medication in the name of Mr. Phillips was found in the centre console. The vehicle was registered to Mr. Phillips mother, Caphianne James.

5The police attended at 30 Falstaff Avenue, Unit 2006, his mother’s address. They did not have an address for Mr. Phillips. Mr. Phillips was not there and a warrant was issued for his arrest. On October 25, 2019 he was arrested on an unrelated matter in Barrie and was brought to Brampton on the outstanding warrant.

6The Justice of the Peace at the original bail hearing on December 13, 2019 detained Mr. Phillips on the secondary and tertiary grounds.

HAS THE APPLICANT PASSED THE ST. CLOUD THRESHOLD FOR REVIEW?

7Mr. Chernovsky for Mr. Phillips argued a material change of circumstances and error of law in order to get over the review hurdle: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.), at para. 139

8With respect to the material change of circumstances, a new surety to add to the original two has been proposed. At the original bail hearing, Mr. Phillips presented his parents as sureties. Both testified. He would live with his mother under house arrest and his father would visit and assist with supervision. She works from 8 a.m. to 1 p.m Monday to Saturday. His father who has not lived with Mr. Phillips’ mother or Mr. Phillips himself for many years works Wednesday to Saturday, 9 p.m. to 7 a.m. The plan was that he would go to Ms. James’ Falstaff apartment first thing after leaving work and would remain there until Ms. James’ return at about 2:30 p.m.

9The new surety proposed is Mr. Phillips’ maternal grandmother, Beverley Lillian Elliott. She is 72 years old and retired. Her apartment is so near her daughter Ms. James’ that they can see each other from their apartment balconies. She lives at 20 Falstaff Avenue and Ms. James lives at 30. Ms. Elliott would be a fill-in, essentially. She states that she is available any time to supervise. She helped bring up Mr. Phillips to about age 6 or 7 but does not now spend much time with him, seeing him only at family gatherings. Nonetheless, she is willing to exert control over him and believes that he will listen to her. She is able to pledge $1000.

10In my view, Ms. Elliott as a new surety, constitutes a material change in circumstances. For a change of circumstances to be material, it must directly address and provide a solution to the reason the application failed in the first instance. That is clearly true here.

11The predominate theme in the Justice of the Peace’s reasons was a dissatisfaction with the sureties and the plan. She said in the penultimate paragraph of her reasons:

Does this Court have confidence in the sureties that have been put to this Court? Does this Court have confidence in the plan that has been put to this Court? That that will address the secondary ground which would ensure the protection or safety of the public? It does not.

12This was a culmination of questions raised by the Justice of the Peace throughout her bail ruling with respect to the sureties and the plan. The adequacy of the supervision, given that both parents work full-time jobs and were hard pressed to assert wall-to-wall seamless monitoring, was a live issue in this bail hearing. As the Justice of the Peace had said previously,

But the supervision, there is days where they have not been addressed. That has not been addressed, and the Court is not going to come to conclusion, and conclude the - what has not been - many things were made explicit. But actually, what the Court needs to know in terms of all of this was, the devil's in the details so to speak. And it is the detail that this Court does not have.

13Ms. Elliott’s role would be to reinforce and fill holes in the supervision of Mr. Phillips’ parents. This was a substantial addition to the plan and spoke directly to the reason the Justice of the Peace denied bail. It therefore constituted a material change. On an objective basis, “it could have affected” the outcome of the bail hearing: see St. Cloud at para. 137; R v. Henry, 2020 ONSC 4196, 164 W.C.B. (2d) 462 at para. 16. I hasten to point out that this is a threshold finding, and not a conclusion that the addition of Ms. Elliott satisfies either secondary or tertiary grounds. That is not the issue at this first stage of the review inquiry.

14As is so often the case, Justice Hill’s decision in R. v. Ferguson, [2002] O.J. No. 1969 (Ont. S.C.J.) at para, 17 has been invoked by the Crown, buttressed by the recent proclamation in R. v. T.K., 2020 ONSC 1935 (Ont. S.C.J.) at para. 50 that it remains good law. I dealt with the issue in detail recently in Henry at paras. 20-24 and will not reiterate that discussion in full. In short, while Justice Hill’s comments in Ferguson are undeniably helpful and presaged the material change in circumstances discussion in St. Cloud, they have been stubbornly and persistently misinterpreted and misused. The oft-cited paragraph in Ferguson, paragraph 17, reads:

As to the first point, the advancement of fresh prospective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

15The first sentence must be read in the context of the rest of the paragraph. The second sentence which contains the “shuffling of the deck” phrase is uncontroversial as it states that changing sureties “does not in itself” amount to a material change. The last sentence is by far the most important and states the law precisely and succinctly: “…Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention” is there a material change. Counsel who cite Ferguson often ignore this last sentence, which on any reasonable construction, is central to the meaning of the paragraph.

16The pejorative “shuffling of the deck” epithet refers to a situation where nothing of real value is added on the review. The Ferguson ruling urges us to look for a real, substantial supplement to the original bail plan. A surety adding nothing of real substance does not amount to a material change.

17In contrast to the Ferguson metaphor, Ms. Elliott is clearly not a “shuffling of the deck.” Having her as a surety adds a layer of supervision and support that was not available at the original bail hearing. That constitutes a material change.

18With respect to the argument that there was a lack of due diligence in not asking Ms. Elliott to serve as surety originally but tendering her only on review, a reading of the due diligence discussion by the Chief Justice in St. Cloud virtually eliminates this as a factor: see St. Cloud at paras. 129-134, Henry at paras. 22-26. The Chief Justice suggests that a lack of due diligence will only have significance if the defence was attempting to drag out the bail process or was engaging in judge shopping (see paras. 134, 125). That standard will rarely be met and certainly was not met here. The rationale for relegating due diligence to a minor role, a departure from its function in the context of criminal appeals (see R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 (S.C.C.)), is that rigorously enforcing finality is inconsistent with the bail process. Regular re-evaluation of bail and a good measure of flexibility is vital to the system of judicial interim release: R. v. Saracino (1989), 1989 7197 (ON SC), 47 C.C.C. (3d) 185 (Ont. H.C.), at p.187.

19While the material change in surety supervision is sufficient to open this proceeding up to a full review, it is important to deal with one other material change\error of law argued by Mr. Chernovsky. Ms. James at the end of her evidence at the bail hearing, was asked by the presiding Justice of the Peace about her financial pledge of $10,000 without cash deposit. She was asked if she had assets and she said she had a pension. This was also in the affidavit she had filed with the bail court. It was suggested by the Justice of the Peace that the pension was not accessible by her, Ms. James said she also had savings. Questions and answers followed which led to a somewhat ambiguous state of affairs with respect to whether she had access to funds.

20In his examination-in-chief, the evidence of Mr. Phillips father, Wessy Phillips, was similar. He too had pledged $10,000. He too said that he was unsure whether he could access his pension savings which he had testified to and attested to in his affidavit.

21It is important to observe that with both parents, there was no evidence that they did not have access to funds. But there was uncertainty. In submissions at the end of the hearing, the Crown (not Ms. Ferrone) argued:

Your Worship, this is not a jurisdiction where those who are without funds are subject to detention where those with funds are released. So my submission isn't to be taken — my next submission is not to be taken as such. However, in this case, you have nothing of any value that's being presented or offered by either surety — proposed surety that from which you can conclude the — will bind their conduct or bind the conduct of the accused. There is — this really would be a no-risk bail in terms of the loss of anything that either surety can actually present to this court if there is a breach.

22This became a major theme in the Justice of the Peace’s reasons. She said,

So these are the two people that you have presented. Both, in terms of an asset to be put before the court, they both rent. One - their,their asset is in a pension, which is really not accessible. Your mother has something with an insurance policy. No one is detained because there is no asset, but there is [sic] two aspects to a surety bail.

And that is, not only the sureties and the plan, but the push and the pull that there is something at risk for the folks that are putting themselves forward to be the jailer in the community.

Neither one of your folks, and this is not in any means, meant to be disrespectful. But there is nothing that they really have to lose from a financial point of view. I am not suggesting that their interest is not to fulfill their obligation, but there is nothing there.

… now I quickly add as well, no one is detained because there is no funds. But it is part of the broader context that this Court must consider.

My extraction from R. v. Budge, there is no amount. This is a no-risk for your, for your proposed sureties.

(Emphasis Added)

23Upon this review hearing, both parents in their new affidavits said that they did indeed have funds to put forward and they were accessible. They were cross-examined and it became evident that there was some lingering confusion about what type of accounts the money was in. But there was no doubt the savings existed and were accessible.

24This clarification upon review constitutes another material change in light of the focus on this subject in the reasons of the Justice of the Peace excerpted above. Furthermore, I believe a fundamental error of law was committed in respect of this issue at the bail hearing.

25If it was true that the sureties had no value to offer, it would be an important deficiency in the plan. The “pull of bail” is premised on the accused not wishing to subject his friend or family member to significant financial detriment by violating his bail: Canada (Minister of Justice) v. Mirza, 2009 ONCA 732, [2009] O.J. No. 4308 (Ont. C.A.), at paras. 40-54. If there is no financial downside, the pull of bail vanishes. The accessibility of funds was of key significance but, in fairness to Mr. Phillips and his parents, required a much more cautious and careful approach than is evident from the transcript of the bail hearing.

26In R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 (S.C.C.) on the subject of surety bail, Justice Wagner, as he then was, pointed out that what is required in support of a monetary pledge are “reasonably recoverable assets”:

4…requiring cash can be unfair, as it makes an accused person’s release contingent on his or her access to funds. Thus, cash bail is merely a limited alternative to a pledge that should not be imposed where accused persons or their sureties have reasonably recoverable assets³ to pledge.

27In the footnote to this paragraph, Justice Wagner wrote:

3 By “reasonably recoverable assets”, I mean assets that could be recovered by the Crown by way of a forfeiture proceeding such that the risk for the accused of losing the assets is meaningful. Whether assets are reasonably recoverable is for the judge or the justice to determine.

28In my opinion, the Justice of the Peace erred in her determination of the reasonably recoverable assets issue. Because the liberty of the accused was at stake, when questions were raised on this subject, they could not be resolved in a summary fashion. I do not believe that resort to the reverse onus on the accused can be relied upon to resolve the issue. A proper treatment of the issue would have included the awareness that assets need only be “reasonably” recoverable. In addition, the financial risk must only be a “meaningful risk” not a certain risk or even a high risk. The background and context for all of this is that in most bail hearings, the proposed sureties often simply refer to their savings in a general way and no further questions are asked. This hearing went much further.

29This proceeding flirted with a return to the regressive overuse of cash bail which prejudices those sureties who do not have the means to own real estate. There was an underlying skepticism which crept into this proceeding. It is important to remember that reliance on cash bail was roundly criticized by Justice Wagner in Antic. He held that cash bail unfairly impacts people without substantial financial means. The court quoted the late John Turner when he brought in the 1972 Bail Reform Act, S.C. 1970-71-72, c. 37 saying in the House of Commons that cash bail operates “harshly against poor people” (para. 28 and see 48). The court, while citing the foundational work of Professor Friedland and the Ouimet Report, agreed with all the parties to the appeal: cash bail can operate unfairly (para. 58). The court stated that a surety monetary pledge is generally as effective as cash bail in binding the accused.

30This strictness was manifested not only by a failure to apply the correct standard from Antic of “reasonably recoverable assets” but in addition, with respect, the Justice of the Peace’s conclusion that the funds were not recoverable was simply not available. Uncertainty could not morph into a conclusion that there was no access to funds. This constituted a misapprehension of the evidence and, from this misapprehension, an unreasonable conclusion.

31While both the Crown and the Justice of the Peace said that no one is detained because they do not have money, the Justice of the Peace did exactly that. She said that the lack of funds did not matter and, in the same breath, that it did matter. It could not be both. The fact is, it did matter. The Justice of the Peace discomfiture with the conclusion that there was no value ought to have led to further exploration and flexibility. With respect, she was too ready to assume the worst.

32If she did not feel comfortable that assets were reasonably recoverable based on the evidence adduced at the hearing, in order to fairly resolve the issue, the Justice of the Peace had several options at her disposal. Each involved giving the sureties an opportunity to bring financial documents or other material to clarify the confusion. The Justice of the Peace could have named the sureties as permitted by Section 515(2.1) of the Code and by endorsement have left the matter of evaluating the recoverable assets issue to another Justice of the Peace administering the entering into of the bail release documents: R. v. Schaefer, [1999] O.J. No. 2175 (Ont. S.C.) at para. 29; R. v. Gillespie (1984), 1984 3451 (ON CA), 16 C.C.C. (3d) 140 (Ont. C.A.), at 141-142. Or, better yet, she could have revisited the issue by clarifying documents when herself administrating the entering into of the bail. There may have been other alternatives available as well.

33I conclude that the recoverable asset aspect of the hearing was unsatisfactory and, with respect, led to an ill-considered decision on this subject. A fair and equitable bail system, attune to issues of income inequality and the notion that those who do not own a house should not be unfairly prejudiced, demands a more rigorous process than what occurred here: R. v. Zora, 2020 SCC 14 (S.C.C.) at para. 79.

SHOULD THE APPLICANT BE RELEASED ON BAIL?

34Most accused are releasable. Whether they are released or not comes down to the plan of supervision. It is a truism that the more pressing the concerns with respect to release, the stronger and more airtight the supervision required. There must exist a proportionality between the factors gravitating towards detention and the strength and reliability of the proposed supervision.

35In my view, in this instance, the risks were high. The plan must be commensurate. In reference to the risk presented by Mr. Phillips, the Justice of the Peace implied in her reasons that she believed that Mr. Phillips is a drug trafficker. I agree with this finding. The circumstantial indications are of significant weight: two loaded handguns in a car, cash in the glove compartment, a criminal record for possession for the purpose of trafficking about four years ago and no real visible means of income for the last several years. Some minor weight could also be derived from Mr. Phillips presence in the apartment on Goreway where drugs were found and two other people were charged.

36Drug trafficking raises specific issues with respect to bail release: R. c. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99. Chief Justice Lamer said in that case when analyzing the constitutional validity of the reverse onus for trafficking (para. 63),

.. trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. In these circumstances, the normal process of arrest and bail will normally not be effective in bringing an end to criminal behaviour. Special bail rules are required in order to establish a bail system which maintains the accused’s right to pre-trial release while discouraging continuing criminal activity.

(Emphasis Added)

37Mr. Phillips is not charged with drug trafficking but nonetheless, in my view it permeates these allegations. The guns are to provide protection for the business of selling drugs. The combination of drugs and guns has too often ended in tragedy. Illegal handguns are a societal evil which appears to be increasing in the GTA: R v. Ahmad, 2020 ONSC 5525 (Ont. S.C.J.) at para. 19. Frequently, gun violence is over drugs. Moreover, in this case, that there were two loaded handguns alleged to be in Mr. Phillips possession is particularly chilling.

38In the full context of these offences, in my opinion the plan proposed is not up to the task of quelling the secondary ground risks. The surety supervision and plan is certainly better than most. But to meet the problems here, the plan to ensure the safety and protection of the public under the secondary ground would have had to be stellar.

39Mr. Phillips is now 23 years old. He has not been living with his parents for some time. While that fact alone does not demonstrate that the bond between them is not strong enough, his father said at the original bail hearing that his son is “secretive.” They do not have a particularly close relationship. That is troubling.

40Surety supervision when there is a powerful incentive to continue the lucrative drug dealing business requires not only ensuring that Mr. Phillips does not leave the home without error-free monitoring but, perhaps more onerous, requires cutting-off his access to the outside community. In the drug trafficking world, the accused is generally part of some sort of an organization. Business is often done by telephone. Ensuring that Mr. Phillips does not have access to communication devices to carry on his activities is an onerous task. Preventing visits or contacts from confederates can also be difficult. The logistics of the drug business puts a very high obligation on the sureties. Offences can be continued without the direct physical involvement of the accused. I do not believe that the plan or the sureties can meet the risk in this case. There is simply too much to manage.

41When the police went to Ms. James’ house looking for her son, the applicant, she did not tell them that he was living with her girlfriend or his friend David. She may not have been asked; it is unclear. The Crown at the original bail hearing cross-examined Ms. James about this and the Justice of the Peace mentioned it in her reasons several times, but it was not a major part of the decision to detain. Ms. Ferrone attempted to go further with this evidence to show that Ms. James was deliberately uncooperative with the police. I would not make that finding, but at the same time it cannot be said that Ms. James went out of her way to help. It was not until six weeks later that Mr. Phillips was arrested.

42In assessing the plan in this case, another concern is that it would stretch the sureties very thin. Mr. Phillips’ father and mother have to go to quite extreme lengths to cover the supervisory duties. The efficacy of their supervision would inevitably suffer at least to some degree. Ms. Elliott certainly helps in this regard, but I do not feel that her back-up role is enough to satisfy the protection of the public in view of the risks involved.

43In conclusion, while the sureties and the plan would be adequate in most situations, in this case where there is evidence that Mr. Phillips is in the drug dealing business and the offences charged are possession of two loaded handguns, the plan does not attain the necessary level of comfort required to protect the public within the demands of the secondary ground.

44Counsel for Mr. Phillips argued that his Charter search application under Section 8 which was not before the original bail court now demonstrates that there is a good chance that the guns will be excluded from evidence and he will be acquitted. It was argued that the search warrant is built exclusively on information from an uncorroborated confidential informant with no prior track record of reliability. However, it is difficult to give this argument much weight at this stage, particularly as a successful Charter application will have to pass through not only Section 8 but the exclusion of evidence provision in Section 24(2). The result cannot be reliably predicted.

45There are no trial delay issues thus far which would raise the spectre of Mr. Phillips doing more pre-trial time than would be justified as a sentence post-conviction: see R. v. Myers, 2019 SCC 18 (S.C.C.). He is looking at a significant penitentiary term. The trial is just around the corner. It is to begin at the end of October, just a few weeks from now, and continue in a piecemeal fashion in the Ontario Court of Justice until completed in December of this year. The proximity of the trial does not work in Mr. Phillips’ favour.

46For these reasons, the defence review application is dismissed.