COURT FILE NO.: CR-20-141-00BR
DATE: 20201020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Miguel Tyndale
Defendant
Counsel:
Kate Hull for the Crown
Ryan Handlarski, for the Defendant
Accused not present on consent
HEARD: October 5, 2020 via video conference
REASONS FOR DECISION ON APPLICATION FOR JUDICIAL INTERIM RELEASE
VALLEE J.
[1] The accused, Miguel Presley Tyndale, who has no criminal record, was charged with robbery, possession of a prohibited firearm, possession of property obtained by crime over $5,000 and conspiracy to commit an indictable offence. These charges stem from an incident that occurred in Toronto on December 26, 2019. He was released on bail with his sister as a surety, who posted $3,500. One of his conditions was a curfew. He was required to remain in his residence from 8 p.m. to 6 a.m. except when he was in the direct presence of his surety or his mother. Another condition was that he not possess any weapons.
[2] In Barrie, on July 27, 2020 at 5:00 a.m., the accused was a passenger in a car owned by his girlfriend, Nicole Bryant. Neither his girlfriend nor his mother was in the vehicle. The vehicle had pulled over to the side of the road. Inside it was a satchel as well as another bag. The occupants got out of the car. T8he satchel and bag were placed on the hood of the car. When the accused was being placed in a police vehicle, another occupant of the car grabbed the satchel. A subsequent search of the satchel revealed that it contained a handgun with an inserted magazine and six baggies containing fentanyl. The other bag contained $3,000 in cash and a bottle of Xanax pills prescribed for the accused’s sister. The accused was charged with a number of criminal offences including possession of a stolen firearm, possession for the purposes of trafficking and failure to comply with a release order. He has been incarcerated since then.
[3] A Justice of the Peace who heard a bail application declined to release the accused. The Crown and defence counsel agree that the JP made certain errors in the decision. Accordingly, the matter comes before me.
The Accused’s Position
[4] The accused states that several of his Charter rights were violated. He and the other occupants of the vehicle were not causing a disturbance. He was a passenger. The vehicle was pulled over to the side of the road. He was ordered to get out of the vehicle and put his bag on the hood of the car. He wasn’t doing anything wrong. He was improperly required to give his name. He is black, which is not irrelevant. Whether he ever spoke to a lawyer is unclear. The Crown’s case on the failure to comply is not strong because of the Charter issues. This must be factored into the secondary and tertiary grounds.
[5] The accused proposes a new plan for release which is different from the plan that was before the JP. The new plan is house arrest with electronic monitoring by way of an ankle bracelet. Nicole Bryant, the accused’s girlfriend, is proposed as the surety. She lives in Toronto with the accused’s mother and his brother. Prior to Covid, she worked as a server. She is not working now and would be available to supervise the accused 24 hours per day, although that is not what is being proposed. She is prepared to pledge $20,000 to secure the accused’s release. This is the value of her vehicle which is important to her.
The Crown’s Position
[6] The Crown opposes release on the secondary and tertiary grounds. The Crown states that the accused procured his girlfriend’s vehicle for the group. She did not know about this. He took it to breach his bail. This shows that he was prepared to mislead her. She is now proposed to be his surety. The firearm was stolen from the United States. The fentanyl and large amount of cash is consistent with drug trafficking. There is circumstantial evidence that the accused knew about the firearm in the car. At his previous bail hearing, he promised the court that he would abide by the conditions. Even though he had a strong surety, his sister, he breached flagrantly. Twice now, he has been involved with serious firearms offences.
[7] The accused states that he fears contracting Covid in custody; however, he breached his bail by being out at night with three other people when he knew he might contract Covid and when he knew he could go back to custody. This negatives his alleged fears of Covid. The onus is on the accused. He has not provided any evidence of enhanced risk of contracting Covid at the Central North Correctional Center in contrast to the general population.
[8] The Crown notes that with respect to the accused’s youth and the fact that he has no criminal record, in R. v. Couteau 2016 ONSC 1515 at para. 51, the court commented that youth and absence of a prior criminal record was not sufficient evidence to satisfy the accused’s onus.
[9] The Crown states that GPS ankle bracelet monitoring is reactive, not preventative. It will show where the accused is, not what he is doing. The fact that he has been involved in offences relating to drugs and firearms increases the prospect that he will cut off the bracelet. In R. v. Hammoe 2016 ONSC 1790, at paras. 57 and 58, the court commented on the proposal that the accused wear a GPS ankle bracelet as follows:
57 Similarly, I find that requiring Mr. Hammoe to wear an ankle bracelet with GPS monitoring does not alleviate concerns under the secondary ground.
58 As provided in RSC's GPS Monitoring Program Summary, while GPS monitoring can have a disincentive effect on offenders by keeping a record of their movements and detecting violations of movement restrictions, it is a "tool with limitations and the risk of failure". GPS monitoring provides reactionary supervision rather than preventative supervision. It does not restrict the movements of the person wearing it, it cannot prevent an accused from fleeing or from committing another offence, and it cannot guarantee police intervention if a breach or offence is in progress.
Analysis
[10] Even though Charter violations are alleged, there is no evidence of them in the accused’s affidavit; therefore, there is no evidence of them before the court. The accused’s evidence focuses primarily about his concerns relating to Covid at CNCC; however, there is no evidence that the risk of contracting Covid there is heightened. There is no evidence that anyone has Covid at CNCC.
[11] As noted in Hammoe, GPS ankle bracelets provide reactionary rather than preventative supervision. They cannot prevent an accused from committing another criminal offence. Their effectiveness depends on the accused’s attitude. The accused has now been involved in two serious offences involving firearms, the last one while he was on bail. I am not satisfied that wearing a GPS ankle bracelet will be a sufficient deterrent for him.
[12] Most importantly, the accused has already shown a lack of respect for Ms. Bryant and her valuable property. I am not satisfied that Ms. Bryant is an adequate surety for the accused. I do not doubt her good intentions; however, the accused took her car without her knowledge. The defence’s submission that there is no evidence that he knew the other person in the car and that he may have just been carpooling does not fit with the facts before this court. The accused allowed someone else to drive Ms. Bryant’s car. He was out at approximately 5 a.m. in breach of his curfew with three other people in the car. According to the police evidence, the driver was significantly impaired. Because of his lack of respect for Ms. Bryant, I am not satisfied that the accused will take her directions and abide by any new conditions. The fact that he flagrantly breached a condition of his last bail shows a lack of respect for court orders. There is a substantial likelihood that if released with Ms. Bryant as his surety, the accused will commit a criminal offence. The accused has not met the onus on the secondary ground.
[13] The accused cannot be released on this plan. His detention is justified on the secondary ground. The application is denied
Justice M.E. Vallee
Released: October 20, 2020