ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-20-458-BR
DATE: 2020 11 23
B E T W E E N:
HER MAJESTY THE QUEEN
David Quayat for the Crown
- and –
NEIL MALLALEY
Leah Gensey, for the Accused
HEARD: November 13, 2020 by audio conference
PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE ONLY WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES
JUDGMENT ON SECTION 525 BAIL REVIEW
D.E HARRIS J.
[1] On this Section 525 Myers bail detention review, the Applicant Mr. Mallaley now says that he has a surety willing and able to supervise him on bail. At the original bail hearing a surety was not available and it was proposed that the release should be on his own recognizance. He would live at a friend’s house.
[2] A surety constitutes a material change of circumstances and, in this case, fundamentally alters the bail analysis. In the circumstances, for the reasons below, I would fashion a house arrest surety bail release for Mr. Mallaley.
ALLEGATIONS
[3] Although this review came to the court under the 90 day review requirement in Section 525, there is no delay of trial concern thus far. The Applicant has been in custody only since August 4, 2020. He is subject, if convicted, to a lengthy penitentiary sentence if convicted of the main allegations against him. In this instance, Section 525 served merely as a vehicle to get a Section 520 review before the court.
[4] Mr. Mallaley is charged with possession for the purpose of trafficking of one ounce of the lethal drug fentanyl, an extremely serious offence. He has an astonishingly long and troubling criminal record. But several factors lead to the conclusion that there is sufficient reason to release Mr. Mallaley on bail
[5] The bail hearing below presided over by Justice of the Peace Fisher-Grant was a reverse onus by reason of the possession for the purpose of trafficking count and the fact the Applicant was on a prior bail release when this offence was allegedly committed (Subsections 515(6)(d) and (c) of the Criminal Code). The allegation read in was that the Applicant was driving at 140 km\hr in a 100 km zone on Highway 403. The police pulled him over when he exited at Eglinton Avenue. As the police officers approached the stopped vehicle, they observed the Applicant “fumbling” in the centre console area. The police learned that the Applicant was a suspended driver. While speaking to him, the officers noticed the woman in the passenger seat attempting to stuff a bag that was next to her left thigh into the space between the seat and the centre console. Both parties were required to exit the vehicle.
[6] The bag was retrieved and later was determined to contain 30 grams of fentanyl. Both individuals were arrested and are being prosecuted for possession for the purpose of trafficking. They are also charged with possession of a backpack found in the backseat which contained a BB gun, 78 grams of marijuana, zip lock baggies, a digital scale and a debt list. The Applicant had $3,325 on his person. He was breaching his probation by being in the company of the woman passenger. The vehicle was not registered either to the Applicant or to his passenger.
CRIMINAL RECORD
[7] The Applicant is 39 years old. His criminal record started when he was 13 years old. By the time he became an adult, he had already served several open and closed custody sentences for offences such as mischief, possession of a weapon and fail to comply with bail. His adult record, long and serious, runs the gamut from offences against the person, to property offences to offences against the administration of justice. The most serious offences are these: break and enter and associated offences in 2006, 2 years plus 5 months pre-trial custody; robbery and break and enter and commit in 2011, 4 years; robbery, 2016, one year plus 408 days of pre-trial custody; attempt to commit an indictable offence, 2018, 142 days plus 582 days pre-trial custody; break and enter and commit assault, possession for the purpose of trafficking, 2019, 12 months and credit for the equivalent of 165 days pre-trial custody; and possession of a firearm or ammunition contrary to a prohibition order, 2020, 60 days pre-trial custody (this entry is after the alleged commission of the offence in the case at hand). There are quite a number of breach of court order convictions as well.
THE REASONS FOR DETAINING THE APPLICANT
[8] At the bail hearing below, the Applicant proposed that he be released on his own recognizance and live with a friend in Cambridge. He gave the address and the name of the friend. This person was not proposed as a surety.
[9] The Justice of the Peace detained on the secondary and tertiary grounds. On the secondary ground, she emphasized the lengthy criminal record and the many fail to comply with court order convictions. The plan put forward including living with the person he named, continuing counselling and treatment for substance abuse did not “mitigate the concerns beyond substantial.” The Applicant had not known his friend very long and did not know much about him. There was no supervision proposed. Over the years, it was shown that the Applicant had difficulty complying with court orders.
[10] On the tertiary grounds, the Justice of the Peace said that she appreciated that there were triable issues regarding the strength of the Crown’s case. The ownership of the backpack was a question. The offences charged were serious. Given all the circumstances, on the plan proposed, a reasonably informed member of the public would not have confidence in the administration of justice if the Applicant were released.
IS THE DETENTION ORDER REVIEWABLE?
[11] Mr. Quayat agreed that the Justice of the Peace’s reasons indicate that she was of the view that the Applicant was releasable but that the lack of available supervision meant that the secondary ground was not satisfied. This is a reasonable interpretation. The Justice of the Peace said,
I cannot say that on this plan, a reasonably informed, dispassionate member of society would have confidence in the administration of justice if I released him.
I am not able on either the secondary grounds or the tertiary grounds to fashion a plan in a vacuum of my own volition. In that regard, I do not find that I have any choice but to order detention at this time on both the secondary and tertiary grounds.
(Emphasis Added)
[12] When asked at this review, Mr. Mallaley said that he now has a surety. He gave her name, said that he had known her for a while and that he could live with her. She is 25 years old. She cannot pledge any significant value. Clearly, in light of the Justice of the Peace’s reasons quoted above, the addition of a surety constitutes a material change of circumstances. It could have affected the result and led to a release order. The pull of bail may be substantial despite the inability to pledge a significant amount.
[13] The proposal of a surety bail when an own recognizance bail was offered at the original hearing, with the offences charged and the Applicant’s antecedents, constitutes a material change of circumstances: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.), at paras. 122-139. The failure to advance a surety bail below ought not to disentitle the Applicant to a surety release now: R v. Henry, 2020 ONSC 4196 (Ont. S.C.J.) at paras. 18-25
[14] In addition to the change of circumstances, with respect, the Justice of the Peace made two legal errors in the course of her reasons. In St. Cloud, Justice Wagner, as he then was, specified that one of the three grounds for review intervention is an error of law: see para. 139.
[15] The first error involves the secondary ground. The Justice of the Peace, after correctly quoting the text of this ground from Section 515(10)(b) of the Code, said at pp. 53-54,
With respect to the substantial likelihood. Mr. Mallaley has a lengthy and significant criminal record.…
So I am satisfied that there is a substantial likelihood that Mr. Mallaley, if released, would commit a criminal offence...
Does the plan presented in this regard mitigate those concerns beyond substantial? …I do have concerns whether the plan proposed is sufficient to mitigate the concerns beyond substantial.
Given someone with Mr. Mallaley's record and the allegations that I have before me, I am not satisfied that the plan on his own release mitigates the concerns beyond substantial. Detention is ordered on the secondary grounds.
(Emphasis Added)
[16] These passages demonstrate an all too common error in the interpretation of the secondary ground. The secondary ground in Section 515(10) (b) of the Criminal Code states that bail should be refused,
where the detention is necessary for the protection or safety of the public…having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.
(Emphasis Added)
[17] On the plain wording of this subsection, the sole basis for detention under the secondary ground is the “protection or safety of the public”: R. v. Morales 1992 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98 (S.C.C.) at paras. 38-39; R. c. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99 (S.C.C.) at para. 55. Within the directive to protect the public, a judge will have to examine the second clause in the provision: whether there is a substantial likelihood of the commission of other offences if the accused is released. But substantial likelihood is a subset and not the touchstone of secondary ground analysis.
[18] It may be thought that this distinction is splitting hairs; there is no real difference between the two. That may be true depending on the circumstances. But it will not always be true. A hypothetical illustrates the distinction. An accused with a long unbroken criminal record for shoplifting may pose a substantial likelihood of shoplifting again. If the likelihood of committing criminal offences is the bottom line standard, this accused should not be released on bail. Yet such an accused is not, properly understood, a threat to the safety of the public. The distinction could be the difference between detention and release.
[19] If evaluated in isolation, the substantial likelihood formulation serves only to quantify the probability of further offences being committed. It does not measure the nature or seriousness of those offences and, in failing to do so, does not weigh the true risk to the public. The law is clear that the seriousness of a likely offence is a necessary step in the secondary ground analysis: R. v. Young 2010 ONSC 4194 (Ont. S.C.J.) at paras. 20-21.
[20] In this case, the Justice of the Peace did not fully engage in the weighing of the risk to the public. At the beginning of her reasons, when paraphrasing the secondary ground, she alluded to the protection and safety of the public. But as evident from the quote above at paragraph 15, when she applied the secondary ground to the circumstances of this case, she did not consider the safety or protection of the public. The analysis of the secondary ground was exclusively based on “substantial likelihood.”
[21] Quite fairly, Mr. Quayat concedes that the Justice of the Peace used the wrong test. He argues, however, that given the specifics of the Applicant’s criminal record, it essentially comes to the same thing. I do not need to make any final conclusions on this issue. One caveat to Mr. Quayat’s argument is that the reasons of the Justice of the Peace, as will become apparent, seemed to focus on the substantial likelihood of the Applicant failing to comply with court orders. These are not necessarily offences which would endanger the safety of the public. The error in the understanding of the secondary ground could have directly affected the decision to detain.
[22] The second error of law concerns the strength of the Crown’s case and goes directly to the essence of the decision to detain on the secondary and tertiary grounds. The Justice of the Peace noted in her tertiary ground analysis that there were “potential triable issues regarding the strength of the Crown’s case. There may be issues with respect to ownership of the backpack [in which the marijuana and BB gun were found].” With respect, in my view, the Justice of the Peace was obligated to go further and make a specific finding.
[23] The strength of the Crown’s case is important in the course of evaluating the risk to the public under the secondary ground and to the tertiary ground as well. On the secondary ground, if a case is weak, the propensity to commit further criminal offences, an essential step in the process of assessing risk, may be diminished
[24] In R. c. Rondeau, 1996 6516 (QC CA), 108 CCC (3d) 474 (Que. C.A.), Justice Proulx considered the nature of the offence and the strength of the evidence. Justice Trotter, in discussing the decision, at 3.3(b)(iii) in his book, “The Law of Bail in Canada” (3rd ed, 2017), writes,
Rondeau links the nature of the offence and the strength of the prosecution's case to the secondary ground. The allegations respecting the index offence(s) are relevant to the accused person's future dangerousness. The strength of the Crown's case determines the weight that may be attributed to the index offence in this assessment. Although the accused person is presumed innocent, this cannot prevent a court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability.
(Italic emphasis in original. Bold emphasis added)
[25] Here, the Justice of the Peace did not incorporate a measurement of the strength of the Crown’s case into the secondary ground.
[26] The strength of the case is arguably even more crucial on the tertiary ground. Not only is it one of the four statutory factors, it is the most important of the four. Justice Trotter says at 3.4(f)(i) of his book:
Wagner J. [in St. Cloud] did not impose any sort of hierarchy on the enumerated factors in s. 515(10)(c). However, both historically and conceptually, it stands to reason that the strength of the case must be given some priority in the application of this section. Detention based on a weak or doubtful case can only serve to undermine confidence in the administration of justice, not maintain it. [footnote to R. v. Dang, 2015 ONSC 4254, [2015] O.J. No. 3552 (Ont. S.C.J.) at para. 55.]
[27] Justice Wagner, in discussing the tertiary ground in St. Cloud, recognized the difficulty of ascertaining the strength of the Crown’s case at a bail hearing. Yet he said at para. 58 that a bail judge was required to do so:
Despite these difficulties … the justice must determine the apparent strength of the prosecution's case.
(Emphasis Added)
[28] With respect, the Justice of the Peace could not abstain on the question of the strength of the Crown’s case. The most heinous allegation may have only minimal weight in the mind of an informed and reasonable member of the public if it is doubtful it can ever be proven. On the question of bail release, the presumption of innocence comes to the fore and reasserts its seminal constitutional position when the Crown’s case is weak.
[29] Here, given that detention was ordered on the tertiary ground, it was not adequate to simply say that there were triable issues. At the review hearing, on this issue, Mr. Quayat argued that although the case against the Applicant was not overwhelming, it was strong. I would not put it that high. The Crown’s case against the Applicant was plagued by the common dilemma that the Applicant’s knowledge and control required for constructive possession was diminished in direct proportion to the woman passenger’s potential knowledge and control: see R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 (S.C.C) at pars. 137-138; R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448 (Ont. C.A.) at para. 19.
[30] Mr. Quayat relies on the “fumbling” observed by the police officers to argue a case of joint possession with respect to the fentanyl. The fumbling is a questionable and somewhat ambiguous observation on which to posit much of the success of this case. The backpack will be even more difficult to prove. It is true that there are other facts which will help the Crown, such as the cash on the Applicant’s person. Nonetheless, I would characterize the Crown’s case as not strong but, rather, of medium strength. That has important implications for both secondary and tertiary grounds.
[31] In summary, the proffer of a surety bail and the two errors of law committed by the Justice of the Peace require that this detention order be reviewed.
THE SECONDARY GROUND
[32] I would not put the emphasis on the Applicant’s failure to comply convictions that the Justice of the Peace did. After noting that the plan offered by the Applicant entailed no supervision, the Justice of the Pease said she could not rely on the Applicant,
someone who has had a history of an inability to comply with court orders, and now has allegations of breaching further orders…
[33] This is consistent with the Justice of the Peace’s focus on the potential frequency of commission of criminal offences if released, at the expense of the potential gravity of any offences that might be committed. The problem with that focus is that the Supreme Court has held that bail conditions are overused and bail breaches are over-criminalized: R. v. Zora, 2020 SCC 14, 2020 CSC 14 (S.C.C.) at paras. 23-27.
[34] In my view, an appropriate surety administering a house arrest bail would substantially alleviate the secondary ground concerns present in this case.
TERTIARY GROUND
[35] Going through the four statutory grounds under the tertiary ground, the Crown’s case is substantial but not strong, in my view. On the other hand, I do appreciate that the fentanyl count is very serious. I accept that the range of sentence for the offence as suggested at the bail hearing and on review is five to seven years.
[36] It was raised at the original bail hearing and once again by Mr. Mallaley himself on this review that his co-accused, the woman in the passenger seat, has been released on bail. A parity argument was advanced. They both being charged with trafficking of fentanyl and marijuana, if she was released, why should he not also be released? In R. v. Budge [2012] O.J. No. 2538 (Ont. S.C.J.) at paras. 48-51, Justice Durno held that parity between accused can be a factor on the tertiary ground but is only of limited weight.
[37] As with the concept of parity arguments on sentence, Justice Durno stressed the importance of differences in the personal circumstances of co-accused. In that regard, we do not know any of the circumstances pertinent to the release of the co-accused here. One thing that can be safely assumed is that her criminal record could not be nearly as lengthy or as serious as the Applicant’s. On the other hand, the case against her on the fentanyl allegation seems stronger than against the Applicant. She was in physical possession of the drug while the case against him is posited on constructive possession.
[38] On this record, the paramount fact behind tertiary ground detention (and secondary ground detention as well) is the trafficking in a deadly drug, a drug which has caused a monumental public health crisis in the community. To this extent, the co-accused’s release on the same allegation is at least of some limited assistance to the Applicant in his bid for release.
[39] In conclusion, given the nature of the case against him and the offer of surety supervision, in my view release is justified under the tertiary ground.
THE SURETY APPROVAL PROCESS
[40] While I contemplated releasing the Applicant on his own recognizance (see R v. Ismail, 2020 ONSC 5519 (Ont. S.C.J.)) , the seriousness of the allegations and his criminal record counsel against this. Supervision is certainly preferable.
[41] Mr. Quayat argued that the best way to proceed would be to adjourn this proceeding and reconvene a hearing with the proposed surety. He would then have the opportunity to cross-examine her.
[42] I have decided not to take that route. Justices of the Peace have extensive experience with the surety approval process: see R. v. Tunney 2018 ONSC 961, 406 C.R.R. (2d) 143 (Ont. S.C.J.) at paras. 39-42. I am confident that in accord with these reasons, a Justice of the Peace will ensure that any proposed surety, given the important role they are to play, will be carefully vetted.
THE BAIL ORDER
[43] I would order bail release on a recognizance, no deposit, with one or more suitable sureties in the total amount of $1500, on the following conditions,
i. Reside with your surety at his or her home, the address to be provided when entering into the bail order;
ii. Remain in your home except for medical emergencies unless you are with a surety or are at, going to or returning from work or visits to your probation officer;
iii. Carry your bail recognizance paper with you at all times while out of the residence;
iv. Advise the officer-in-charge or his or her designee of any employment and its location for the purpose of monitoring condition ii.;
v. Continue seeing Dr. Lorberg for treatment and counselling;
vi. Do not be in possession of any illegal drugs;
vii. Do not possess any weapons as defined in the Criminal Code.
viii. Attend court as required.
[44] I can be contacted if there are requests by either party with respect to adding or altering the proposed bail conditions.
D.E HARRIS J.
Released: November 23, 2020
COURT FILE NO.: CR-20-458-BR
DATE: 2020 11 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Neil Mallaley
BAIL RULING
D.E HARRIS J.
Released: November 23, 2020