COURT FILE NO.: 8270/20
DATE: 2020-10-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Stuart Woods, Counsel for the Crown
Respondent
Lindsay Marshall, Federal Prosecutor
- and -
BRENDAN GIGNAC
Eric D. McCooeye, Counsel for the
Accused/Applicant
Accused/Applicant
HEARD: October 7, 2020
GAREAU J.
REASONS ON S. 525 APPLICATION
[1] This matter was heard on October 7, 2020 as a bail detention review pursuant to section 525 of the Criminal Code of Canada. On October 7, 2020, the court dismissed the application for release with written reasons to follow. These are my written reasons.
[2] Prior to R. v. Myers, 2019 SCC 18, a section 525 review was not undertaken unless the court was satisfied that there was unreasonable delay. This approach was rejected by the Supreme Court of Canada in R. v. Myers, which held that a hearing under section 525 is mandatory and not conditional upon the court finding that there has been unreasonable delay. In other words, a section 525 hearing is mandatory rather than optional.
[3] Section 525 of the Criminal Code of Canada imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified. As set out in Myers, unreasonable delay for individuals in custody are to be avoided and they are not to languish in pretrial custody but rather individuals in custody should have their matters moved forward in an expeditious manner. This is also enshrined in section 11(e) of the Charter of Rights and Freedoms which protects an individual’s right not to be denied reasonable bail without just cause.
[4] As set out in paragraphs 62 and 63 in Myers, the overarching question on a section 525 hearing is whether the continued detention of the accused in custody is justified within the meaning of section 515(10) of the Criminal Code of Canada.
[5] The accused has been in custody since May 7, 2020, which amounts to 154 days enhanced to 231 days or just short of eight months. The accused had a bail hearing in the Ontario Court of Justice and was detained in custody on June 1, 2020 by Her Worship Justice of the Peace Bryant on secondary grounds.
[6] The accused is currently charged with break and enter and two counts of breach of probation which is alleged to have occurred on March 8, 2020 in a private residence while the accused was released from custody without a surety. There is a further allegation that the accused broke into a private residence on May 6, 2020 while on a release order without a surety relating to the March 8, 2020 incident. With respect to the May 6, 2020 incident, the accused faces charges of break and enter, assaulting a peace officer, breaching a release order, and breach of probation.
[7] Mr. Gignac has a lengthy criminal record covering a period of 16 years from 2003 to as recent as 2019. These offences are for violence and property but there are also numerous convictions for failing to comply with court orders, such as failing to comply with a probation order, failing to comply with an undertaking and failing to comply with a recognizance. These types of charges where Mr. Gignac ignored orders of the court total six, five of which are as recent as 2019.
[8] Mr. Gignac takes the position that since his detention in custody on June 1, 2020 he has put in place community services that will assist him with his mental health difficulties and substance abuse problems, and any secondary ground concerns that the court may have will be satisfied by the elaborate support system that he will have in place. In this regard, the accused seeks an order releasing him from custody on his own recognizance in the amount of $1,000.00 without deposit on the following conditions:
(1) Reside at St. Vincent’s Place until he is able to secure housing at 137 East Street;
(2) Continue to work and collaborate with Paul Nevello from Canadian Mental Health, as they have some plans that will assist him in keeping him out of trouble, and ensure that he receives his medications;
(3) Through Probation, he will complete the PARS program as well as substance abuse program;
(4) Work with Dr. Pistor to get him back into the methadone clinic;
(5) Work with the Canadian Mental Health Association with programs and supports;
(6) Not possess any narcotic not specifically prescribed for his use;
(7) Not possess any weapons as defined by the Criminal Code;
(8) Report to the Sault Ste. Marie Police Services in person, each Friday between the hours of 1:30 p.m. and 4:30 p.m.
[9] It was Mr. Gignac’s position on the section 525 review that with the aforementioned plan in place he has a system to be successful and not be a risk to reoffend while on release. As to the absence of a surety in his plan, Mr. Gignac suggests that some people in the community are not going to be able to offer a surety in support of their release but that this should not prevent a release from custody if an otherwise good plan of release is presented to the court.
[10] While this proposition proposed by the defence as to a surety may be true, it is also true that some individuals given their background should not be released from custody without a surety who can supervise and monitor their activities and ensure that the conditions of their release are being followed. In my view, Mr. Gignac is such an individual. His past criminal record indicates that he has a propensity not to follow court orders. I have no confidence that Mr. Gignac, left to have his own devices, will follow the conditions of release imposed by this court. The fact is that he has numerous convictions for breaching court orders in the past. It is also of concern to this court that the allegations of break and entry on March 8, 2020 and May 6, 2020 involve times when Mr. Gignac was released from custody without a surety.
[11] The plan of release proposed by Mr. Gignac is largely one of good intentions, without someone to monitor his activities. The plan is reliant on the actions of Mr. Gignac and this court is not confident that this is enough to ensure that he will comply with the conditions of release and not involve himself in further criminal behaviour while on release.
[12] The plan on which Mr. Gignac seeks his release from custody without a surety does not give this court any confidence that the secondary grounds of detention under section 515(10)(b) have been addressed or satisfied for the protection or safety of the public. A plan entirely reliant on the good intentions of Mr. Gignac, without supervision to assist in ensuring compliance, is, in my view, not sufficient to protect the public given the criminal record of the accused, his history of breaching court orders, and the fact that he was released from custody without a surety when both offences which he now finds himself before the court on are alleged to have occurred.
[13] I agree with the Provincial Crown that a good, solid surety would go a long way to monitor the activities of Mr. Gignac and in seeing him follow through on the plan of release which he has put in place. Without such a surety, this court is not satisfied that the plan of release suggested by the accused alleviates the secondary ground concerns in section 515(10)(b) of the Criminal Code of Canada.
[14] Accordingly, the application for release by Brendan Gignac is dismissed and he remains detained in custody on the secondary grounds.
Gareau J.
Released: October 19, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRENDAN GIGNAC
REASONS ON S. 525 APPLICATION
Gareau J.
Released: October 19, 2020