COURT FILE NO.: CR-20-07276-00BR
DATE: 20201223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEITH MCDONALD
Applicant
Counsel: Peter Westgate, for the Crown Brian Kolman, for the Applicant
HEARD: December 18 & 23, 2020
reasons for decision – bail review
edwards J.:
overview
[1] Mr. McDonald is charged with numerous firearm related offences arising out of his involvement in allegedly selling handguns and a rifle to an undercover police officer. During his interaction with the undercover officer, he is also alleged to have sold not insignificant amounts of cocaine. He was detained in custody after a bail hearing before Justice of the Peace Smythe. At the bail hearing, the Crown conceded the secondary ground concerns had been met with the plan of release. Mr. McDonald was detained on the tertiary ground. Mr. McDonald now seeks to review the detention order and asks this court to conduct a s. 525 hearing.
The Facts
[2] Between April 3 and April 29, 2020, Mr. McDonald along with several individuals were engaged in clandestine meetings with persons they believed were interested in purchasing guns, ammunition and cocaine. As events unfolded, the transactions took place over several meetings. Unbeknownst to Mr. McDonald, the person he was dealing with was an undercover police officer. The quantities of cocaine ranged from one half ounce to four ounces.
[3] The trafficking in firearms involved an unloaded UC Mac 10 with a loaded ammunition clip which sold for $5,500; a semi-automatic pistol with a 17-round capacity; a Tapco SKS rifle with its serial number removed, together with 18 rounds of ammunition which sold for $9,000. In total, Mr. McDonald faces 25 charges.
[4] Mr. McDonald is 31 years of age. He has a prior criminal record. In 2010, he was convicted of possession for the purposes of trafficking and breach of recognizance. In 2016, he received a 90-day intermittent sentence for trafficking in a Schedule 1 substance.
[5] Mr. McDonald has a 7-year-old daughter. The mother of his daughter is one of the proposed sureties who is willing to post bail in the amount of $100,000. Significantly, Mr. McDonald is estranged from his daughter’s mother, and is in a long-term relationship with another lady who is also one of the proposed sureties along with Mr. McDonald’s own mother.
Plan of Release
[6] The plan of release is, for all intents and purposes, the same as the plan that was before the Justice of the Peace. It involves house arrest with 24/7 supervision at the residence of his long-time girlfriend and mother. Both his girlfriend and mother have jobs that take them away from the residence. Their hours are such that at no time would Mr. McDonald be left alone. Where required, these sureties could call upon the mother of Mr. McDonald’s child to provide supervisory assistance. In addition, electronic monitoring has been offered as a further measure of protection to ensure Mr. McDonald remains under house arrest.
Position of the Defence
[7] Mr. Kolman argues that the plan of release offers the strictest of controls over Mr. McDonald, and thus the secondary ground should be of no concern to the court.
[8] As for the material change of circumstances, Mr. Kolman argues that the delay between the date when Mr. McDonald was detained on May 14, 2020 and todays date, in effect amounts to a material change. Mr. Kolman also argues that the continuing COVID-19 pandemic is a material change warranting this court’s review of Mr. McDonald’s continued detention.
[9] Dealing with the delay in the Ontario Court of Justice (OCJ), Mr. Kolman argues this court has a supervisory role to ensure the case against Mr. McDonald is moving ahead with appropriate dispatch, and that on the facts the Crown has only recently completed its production of the information to obtain (ITO) and other disclosure. While conceding there have been several judicial pre-trials in the OCJ, Mr. Kolman argues that it will be many more months before the proceedings in the OCJ are complete and that this delay warrants this court’s review.
[10] As for the tertiary ground for detention, Mr. Kolman argues that a member of the public would have no concerns with the plan of release, and when informed of an accused’s right to reasonable bail coupled with the presumption of innocence, would conclude the administration of justice would be brought into disrepute if Mr. McDonald was not released on the proposed terms of house arrest.
Position of the Crown
[11] Mr. Westgate took the initial position that the court should outright dismiss this application as there has been no material change in circumstances since the initial detention order. Mr. Westgate further argued that there was no error of law in the reasons of the Justice of the Peace.
[12] As for the request by Mr. McDonald to allow a s. 525 application to be heard concurrently with this application, Mr. Westgate agreed this was appropriate.
[13] As for the plan of release, Mr. Westgate raised concerns with several of the sureties in terms of their ability to properly supervise Mr. McDonald. While the secondary ground was far from conceded by Mr. Westgate, it is fair to suggest his primary concern was the tertiary ground.
[14] As for the suggestion there has been delay in the OCJ that warrants a review or that might amount to a material change, Mr. Westgate notes that the Jordan deadline is well within reach and that in the context of the complexity of the charges against Mr. McDonald and others, that this matter has moved along in a predictable and timely fashion. In short, there is nothing to suggest this matter will not be dealt with in the OCJ within the appropriate timelines - even considering COVID-19.
Analysis
[15] While Mr. Westgate raised concerns with the secondary ground for detention, I am satisfied that the plan of release - supplemented with electronic monitoring, meets all the concerns such that the secondary ground is not engaged. The proposed sureties, while perhaps having “blinders on” for Mr. McDonald’s criminal past, nonetheless struck me as well-meaning and hardworking individuals who would perform their role as a surety - this especially so where one of them would be risking $100,000 if Mr. McDonald did not comply with his terms of release.
[16] The real issue in this case is the tertiary ground for detention. Section 515(10)(c) of the Criminal Code provides for pre-trial detention of a defendant when this: …is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. In a reverse onus situation, as in this case, Mr. McDonald must show that his detention is not necessary on this basis.
[17] In this case, Mr. Kolman conceded in argument that the Crown (subject to any constitutional arguments available), has a “formidable” case against Mr. McDonald. It is also not disputed that if convicted, Mr. McDonald will be facing a lengthy penitentiary term of imprisonment - Mr. Westgate argues Mr. McDonald could face upwards of 10 years in prison.
[18] As for the gravity of the offences, there is little doubt they involve very serious allegations relating to not only the sale of cocaine but also very dangerous firearms and ammunition, all of which engage circumstances this court is obliged to consider.
[19] However, as the Supreme Court of Canada makes clear in R. v. St-Cloud, 2015 SCC 27, at paras. 68-71, s. 515 does not create a legal regime in which everyone charged with a gun offence is automatically detained under the tertiary ground unless he or she can show that the Crown's case is weak. Rather, courts must consider all the relevant circumstances that bear on whether the public's confidence in the administration of justice requires the accused to be detained before his or her trial.
[20] Fundamentally, what Mr. Kolman is asking this court to do is twofold:
undertake a bail review on the basis of a material change in circumstances, or by inference if unsuccessful in that regard to;
conduct a de novo hearing of Mr. McDonald’s original bail hearing.
[21] The plan of release is, for all intents and purposes, exactly the same one that was before the Justice of the Peace. I see no error in the position of the Crown appearing on the original bail hearing, nor any error in the reasons of the Justice of the Peace as it relates to the secondary ground for detention. The plan of release is a strict plan involving house arrest 24/7.
[22] I also fail to see what change in circumstances has occurred since Mr. McDonald’s detention in May 2020. The Justice of the Peace considered the implications of a detention order in the context of the ongoing COVID-19 pandemic. While accepting that the implications of COVID-19 may amount to a material change in circumstances, there is no evidence that Mr. McDonald is any more susceptible to contracting COVID-19 than others. There is no medical evidence that would warrant such a conclusion.
[23] As the Court of Appeal has recently made clear on a s. 522 review, the reviewing court does not have an open-ended ability to conduct a review where COVID-19 is raised as the basis for review. In this regard, the Court of Appeal in R. v. J.A., 2020 ONCA 660, [2020] O.J. No 4760, stated beginning at para. 57:
[57] On a s. 522 application such as this, the respondent has the onus to establish on a balance of probabilities that he should be released: Criminal Code, s. 522(2).
[58] Any “new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the [first bail judge]. The new evidence must therefore be significant”: St-Cloud, at para. 137. This means the second judge must consider the new evidence in the context of the findings of the first bail judge to see if the new evidence would have affected the balancing exercise engaged in by the first bail judge.
[59] New evidence must therefore be examined having regard to the first bail judge’s findings on the factors relevant to the ground of detention in question. In the context of the primary ground, for example, these factors include: the nature of the offence and the potential penalty; the strength of the Crown’s case; the respondent’s ties to the community; criminal record and history of compliance with court orders; the respondent’s behaviour prior to arrest; and the plan of release: Page: 24 The Honourable Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2020), at 3.2.
[60] The second bail judge was therefore required to examine the new evidence in respect of the effect of the COVID-19 pandemic on this respondent in these circumstances in light of the first bail judge’s findings, in order to decide whether COVID-19 constitutes a change that is “relevantly material” such that it could reasonably be expected to have affected the result.
[61] The second bail judge failed to consider the new evidence in the context of the existing findings of the first bail judge. Instead, he accepted that the COVID-19 pandemic in and of itself is a material change justifying a new bail hearing. He did so without regard for the findings of the first bail judge, and as a result, he failed to consider how COVID-19 was “relevantly material” before deciding to hear the bail application afresh. In so doing he made an error of law.
[24] While Mr. Kolman chose to emphasize the dissenting reasons of Nordheimer J.A. in J.A, I am bound to follow the reasons of the majority. In my view, there has been no material change in circumstances since Mr. McDonald was detained in May 2020. COVID-19 was considered by the Justice of the Peace and while COVID-19 continues unabated, there is no evidence that either Mr. McDonald or the general population at the Central East Detention Centre are any more susceptible to COVID-19 than others similarly situated.
[25] This leaves the tertiary ground for detention, which I choose to review in the context of Mr. Kolman’s arguments relating to delay and the s. 525 application. This matter involves more than one accused, which inherently will involve some delay that might not occur with a straightforward single information against one accused charged with drugs and firearms offences.
[26] If the evidence was such that the Crown had delayed in fulfilling its Stinchcombe obligations or if it was clear the ITO had not been produced to the defence, the result might be different. However, I am satisfied that this matter is moving along in the OCJ as quickly as one can expect, particularly with the restrictions imposed by COVID-19. There has been no unreasonable delay that in my view warrants this court considering the application of s. 525 (3) or (4). In making this determination, I do not foreclose a further s. 525 application.
[27] Dealing specifically with the tertiary ground, it is effectively conceded by the defence that all four factors that this court must consider are engaged and favour detention. I entirely agree with Mr. Kolman’s concession that the case against Mr. McDonald appears to be a “formidable one”, absent any constitutional arguments yet to be made. Despite the fact the case appears to be a formidable one and the fact the charges Mr. McDonald faces involve the sale of firearms and ammunition, the reality remains that St-Cloud requires this court to consider all of the circumstances in coming to a conclusion whether Mr. McDonald’s release or continued detention would bring the administration of justice into disrepute.
[28] Mr. McDonald is presumed innocent of all 25 charges that he is facing. He is also entitled to not be denied reasonable bail. Nonetheless, this court cannot lose sight of the fact that reasonable members of the public, when educated about the fundamental principles of our criminal justice system, have a reasonable expectation that firearms must be kept off the streets and left in the hands of those who are authorized to handle and use firearms. Where the defence concedes the formidable case against Mr. McDonald, a reasonable member of the public would - even in the face of a strong plan of release, consider that Mr. McDonald’s release would bring the administration of justice into disrepute.
[29] I am not satisfied that Mr. McDonald has presented any new evidence that warrants this court’s review of the original detention order. I am also not satisfied there has been any material change of circumstances warranting a review. COVID-19 was considered at the original detention hearing. The delay since the detention hearing is not unexpected, nor is it unreasonable to this point in time. There was no error of law pointed to by Mr. Kolman as it relates to the original detention order. The application is dismissed.
Justice M.L. Edwards
Released: December 23, 2020
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral decision read into the record. If there are any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KEITH MCDONALD
Applicant
REASONS FOR DECISION – BAIL REVIEW
Justice M.L. Edwards
Released: December 23, 2020