COURT FILE NO.: CR-21-00000086-00BR
DATE: 20210329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CARLTON JONES
Glen Crisp, for the Crown
Adele Monaco, for Mr. Jones
HEARD: March 18, 2021
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON BAIL REVIEW
[1] "Project Sunder" was a very large Toronto Police investigation into the activities of several people involved in the drug trade and associated criminal activity in Ontario. Several of the people charged are alleged to be members or associates of the Eglinton West Crips or groups associated with the Eglinton West Crips. The Crown alleges that the Eglinton West Crips are a criminal organization. On October 15, 2020, the police carried out numerous arrests. Among those arrested was Carlton Jones. He now comes before the court on a bail review application. The Crown alleges that Mr. Jones was deeply involved in criminal behavior, including drug trafficking, conspiracy to traffic drugs, conspiracy to commit robbery, and obstruction of justice. He was detained by a justice of the peace at his bail hearing. He now comes before this court on a bail review. The Crown conceded that there had been a material change of circumstances entitling Mr. Jones to a review of his detention order but argued that Mr. Jones had not met his onus on the secondary or tertiary ground. I agree that Mr. Jones has not met his onus on the tertiary ground. For the reasons that follow, the application is dismissed.
PROJECT SUNDER
[2] Project Sunder is a large, complex investigation focusing on several different groups associated with the Eglinton West Crips. There are far too many charges, conspiracies, and individuals to prosecute in one large group. As a result, the Crown has broken the case down into different groups, and subgroups. There are currently multiple informations before the Ontario Court of Justice. The Crown expects to file new informations on March 30, 2021. Mr. Jones finds himself prosecuted in Group 1 and Group 4. When the new charges are filed, he will face the following charges:
Group 1:
• Count 9: Robbery for the benefit of a criminal organization, April 22-23, 2020.
• Count 10: Conspiracy to commit robbery, April 22-23, 2020.
• Count 11: Trafficking in controlled substances for the benefit of a criminal organization, March 6-September 25, 2020.
• Count 12: Conspiracy to traffic in controlled substances for the benefit of a criminal organization, March 6-September 25, 2020.
• Count 14: Conspiracy to traffic in controlled substances, March 6-September 25, 2020.
• Count 20: Conspiracy to traffic in a controlled substance, March 12-May 7, 2020.
• Count 24: Trafficking in a controlled substance (cocaine), April 7-27, 2020.
• Count 26: Conspiracy to traffic in a controlled substance (cocaine), April 18, 2020.
• Count 27: Conspiracy to traffic in a controlled substance (fentanyl), April 29, 2020.
• Count 28: Conspiracy to traffic in a controlled substance (cocaine), April 29, 2020.
• Count 69: Attempt to obstruct justice, April 3, 2020.
• Count 70: Conspiracy to obstruct justice, April 3, 2020.
Group 4:
• Count 1: Conspiracy to commit robbery, March 15-22, 2020.
• Count 2: Conspiracy to commit robbery with a firearm, March 30-31, 2020.
[3] The Crown has grouped the charges into "events" for the purposes of the synopsis. Each "event" may have more than one charge associated with it.
[4] I turn to the actual allegations against Mr. Jones.
ALLEGATIONS
[5] Mr. Jones was given a conditional discharge on September 18, 2019. He was put on probation for one year. Thus, for most of the currency of the alleged offences Mr. Jones was on probation. He is also bound by a weapons prohibition order for five years.
[6] The Crown alleges that Mr. Jones' criminal activity has been deep and extensive. He has trafficked drugs throughout Ontario and planned robberies. He allegedly supervises drug trafficking by members of the organization in Thunder Bay. He allegedly attempted to procure a fake surety to secure bail for a criminal associate. Much of the evidence against him comes from intercepted communications. The allegations are lengthy and involved. Ms. Monaco, counsel for Mr. Jones, conceded that the Crown has a strong case. I will briefly set out the main points.
Existence Of The Criminal Organization
[7] The Crown alleges that Mr. Jones is one of twelve principals of the criminal organization. It seeks to prove the existence of the criminal organization by means of intercepted communications. For example, on March 16, 2020 Mr. Jones allegedly discussed drug trafficking with another member of the criminal organization, Bryan Harrington. He allegedly discussed the money he was making from selling cocaine in Thunder Bay. On April 15, 2020 Mr. Jones allegedly discussed selling cocaine and fentanyl in Kingston. They also discussed transferring money electronically.
Conspiracy To Commit Robbery, April 22-23, 2020 (Group 1, Counts 9 and 10)
[8] The Crown alleges that on April 22 and 23, 2020 Mr. Jones and two other people conspired to rob a female drug dealer. Intercepted communications revealed the plan. The police intercepted Mr. Jones contacting the alleged victim to confirm her location. The police dispatched a uniformed scout car to disrupt the planned robbery. The co-conspirators discussed the fact that one of them had interacted with the police at the robbery location.
Trafficking In Controlled Substances For The Benefit Of A Criminal Organization, March 6 to September 25 (Group 1, Counts 11, 12, and 14)
[9] The Crown alleges that Mr. Jones was part of a large group of co-conspirators engaged in trafficking cocaine and fentanyl in Toronto, Thunder Bay, and Sault Ste. Marie. The police intercepted a significant number of conversations (including text messages) between the alleged co-conspirators. The Crown alleges that in one conversation Mr. Jones negotiated to purchase nine ounces of cocaine from a supplier. The police intercepted Mr. Jones allegedly discussing several sales of cocaine at the ounce-level.
Conspiracy To Traffic Controlled Substances, March 12 to May 7 (Group 1, Count 20)
[10] The Crown alleges that Mr. Jones and another co-conspirator supplied cocaine to associates in Thunder Bay. The police seized cocaine from a hotel room rented by some associates. Intercepted communications between Mr. Jones and others indicated that he oversaw the drug trafficking while he was in Thunder Bay; otherwise, a local associate oversaw the operations in his absence.
Trafficking In A Controlled Substance, April 7-27, 2020 (Group 1, Counts 24 and 26)
[11] The Crown alleges that on April 27, another principal of the criminal organization, sold an ounce of cocaine to an unknown male person for $1850.00. The negotiations for the transaction were conducted by phone and intercepted by the police. The Crown alleges that the intercepts reveal that Mr. Jones retrieved the cocaine so it could be trafficked.
Conspiracy to Traffic In Controlled Substances, April 28, 2020 (Group 1, Counts 27 and 28)
[12] The Crown alleges that Mr. Jones conspired with two other individuals to traffic cocaine and fentanyl in Toronto. The police intercepted messages indicating that Mr. Jones contacted one of the individuals to arrange a pickup of drugs from a residence. Later that day the police executed a search warrant at the residence. The police arrested the other two individuals and seized 5.96 grams of cocaine and 7.59 grams of fentanyl).
Obstruction of Justice, April 3, 2020 (Group 1, Counts 69 and 70)
[13] One of the alleged members of the criminal organization is Javonte Reid. Mr. Reid was in custody at the Algoma Remand Centre in Sault Ste. Marie on April 3, 2020. Mr. Reid contacted Mr. Jones. They discussed whether "the man" had found a surety for him. Mr. Jones indicated no, but that "Geena" could do it. Mr. Reid indicated that he would pay for it. According to Crown counsel, "Geena" is a person who regularly presents herself as a potential surety for others at bail hearings. In this case, Mr. Jones contacted her to arrange for her to drive or be driven to Sault Ste. Marie for a bail hearing. Mr. Jones also contacted Mr. Reid's lawyer.
Conspiracy To Commit Robbery, March 12-22 (Group 4, Count 1)
[14] The Crown alleges that Mr. Jones conspired with two others to plan and carry out a robbery of a storage unit of a condominium from March 12 to 22, 2020. The police intercepted Mr. Jones discussing the robbery with an associate, Charley. The associate anticipated that a female would give him the alarm code so that they could unlock the door and get in. The plan was not carried out because the female did not call back with the code.
Conspiracy To Commit Robbery With A Firearm, March 30-31 (Group 4, Count 2)
[15] The Crown alleges that on March 30, a female contacted Charley to assist her with her boyfriend. Her boyfriend, she said, was extorting her using a sex tape. She wanted to rob him. Charley agreed and said he would shoot the boyfriend in the face. Charley called Mr. Jones and asked him to assist. Mr. Jones's role would be to "hold" some older people in the residence. As a result of the interceptions, the police sent a uniformed officer to stop a car with some of the co-conspirators. Another police scout car was sent to the neighborhood. The police intercepted Mr. Jones telling an associate that they had been ready to go but that police were around.
THE CURRENT PLAN
[16] Ms. Monaco proposed that Mr. Jones be supervised by two sureties: his father (also Carlton Jones; for the sake of simplicity I will refer to him as Mr. Jones Sr. to distinguish him from his son), and Christopher MacDonald. Mr. Jones will be required to wear an ankle monitor provided by SafeTracks. SafeTracks is a government program for people who would otherwise be releasable with an ankle monitor but cannot afford to engage the services of a private monitoring company. Mr. Jones would be under modified house arrest. He would not be permitted to leave the residence of Mr. Jones Sr. except in the company of one of his sureties. The plan is that he will go to work either with Mr. Jones Sr. or Mr. MacDonald.
[17] Mr. Jones Sr. is an electrician. He has his own business and works 30-40 hours per week. He currently rents an apartment that is big enough for Mr. Jones to reside with him. He has savings of $10,000 and is prepared to pledge the full amount.
[18] Mr. MacDonald is in the antenna installation business. He also has his own business, but he and Mr. Jones Sr. frequently work together on jobs. Mr. Jones has worked for him in the past and performed well. Mr. MacDonald is also a close friend of Mr. Jones Sr. and has known Mr. Jones as a family friend. He earns about $50,000 per year. He and his wife reside in their own home, which they own. They have a significant amount of equity in the house. He is prepared to pledge up to $30,000.00.
ANALYSIS
[19] Ms. Monaco argued that the new plan was stronger than the plan presented at the bail hearing. The two proposed sureties are stronger, and the amount of money being offered is significantly greater. Crown counsel conceded that the new plan constitutes a material change of circumstances. As a result, I will conduct a new review: R. v. St. Cloud, 2015 SCC 27, at para. 121.
[20] Crown counsel, Mr. Crisp, does not have concerns on the primary ground. He raises concerns on the secondary and tertiary grounds. Although some of Mr. Jones's charges are Crown onus, the significant drug trafficking and criminal organization charges are reverse onus. For the sake of simplicity, I will analyze the issues this way: first, has Mr. Jones met his onus on the secondary ground; and second, has Mr. Jones met his onus on the tertiary ground?
(a) Has Mr. Jones Met His Onus On The Secondary Ground?
[21] Mr. Crisp argued on behalf of the Crown that the plan as proposed is insufficient for Mr. Jones to meet his onus on the secondary ground. Carlton Jones Sr. knew his son was on probation but seemed to take no interest in how he was making his living. Mr. MacDonald, while well-meaning, will not be with Mr. Jones constantly and will only work with him from time to time. Moreover, the type of offences that Mr. Jones was involved in – conspiracies and other actions on behalf of criminal organizations – can be committed just using a phone. It will be not be particularly challenging for Mr. Jones to access a phone and contact his confederates. After all, he was able to supervise the Thunder Bay drug trafficking operation through others.
[22] Ms. Monaco argues that the plan is sufficiently tight that Mr. Jones will be unable to commit further offences. As well, Ms. Monaco argued that Mr. Jones Sr. and Mr. MacDonald are sincere, hard-working people who will do their best to supervise Mr. Jones. I agree. Mr. Crisp, very fairly, also agreed that Mr. Jones Sr. and Mr. MacDonald are good, hard-working people.
[23] I find that based on the strength of the sureties, Mr. Jones can meet his onus on the secondary ground but I want to emphasize that it is a very close call, and, in any event, rather moot given my conclusion on the tertiary ground.
[24] Section 515(10)(b) sets out the secondary ground (I excerpt the key parts):
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(b) 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…
[25] In this case, I must determine whether there is a substantial likelihood that Mr. Jones will commit a criminal offence or interfere with the administration of justice. The prospect of interference with the administration of justice is particularly acute in this case, given that there seems to a substantial amount of evidence – coming from his own mouth – that he attempted to do exactly that.
[26] The secondary ground was described by Chief Justice Lamer in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 at para. 39:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.
[27] The purpose of the surety system is to use a trustworthy individual to act as the eyes and ears of the court; or to put it less delicately, act as a substitute jailer: R. v. Seymour, [2004] O.J. No. 5834 at para. 60; United States of America v. Shahid, [2020] O.J. No. 4585, 2020 ONSC 6308 at para. 44.
[28] Typically, justices of the peace or judges assess the suitability and reliability of a potential surety through viva voce evidence. All sureties always pledge that they will supervise the accused; call the police if the accused does not follow the rules; and ensure compliance with the terms of the recognizance. Of course, the reality is that some sureties are unable or unwilling to actually perform those duties. Justices of the peace or judges must determine whether the surety really will enforce the rules. Since sureties are often close family members, justices of the peace or judges must also determine whether sureties really will call the police or pull their suretyship in the event of a breach. No surety is perfect, and no plan is perfect, of course, and a court cannot expect a standard of perfection. It is a question of risk management: will the surety reduce the risk of the accused committing further offences such that the court is satisfied that there is no substantial likelihood that he or she will? In doing so, justice of the peace or judge should look to some or all of these factors, bearing in mind that each one is a double-edged sword and that there is no magic formula for determining whether a surety is suitable:
• How well does the potential surety know the accused? Obviously, the better that a potential surety knows an accused person, the more likely it is that he or she will be familiar with their ways, possibly including their criminal ways. This will give the surety an advantage in spotting potential future criminal behaviour. On the other hand, a close family member may be reluctant to pull bail in the event of a breach and see their loved one go back to jail.
• How closely does the surety need to supervise the accused? Is it a residential surety, house arrest, or more loose type of situation?
• Is the potential surety in a position to devote time and mental resources to the supervision of an accused person? Some bail orders require constant supervision. Other bail orders require less stringent supervision.
• Does the accused person have a basic level of respect for the surety, in that he or she will not place the surety's funds at risk? Every accused person says that they respect the proposed surety and will do nothing to place them at risk; every proposed surety says that the accused respects them and will listen to them. Everyone with some experience in the criminal justice system knows that there are varying levels of sincerity when it comes to this question.
• Has the surety previously supervised the accused? If so, how well did that turn out?
• Is there a possibility that the accused person will intimidate the proposed surety into failing to report breaches to the police? Again, it is hard to imagine that any proposed surety or accused person will admit to this possibility, but experience teaches that it happens from time to time.
[29] Turning to Mr. Jones's situation, the plan is that Mr. Jones Sr. will rarely have him out of his sight. This will make it more difficult to commit further offences. I am aware of Crown counsel's submissions that over the year prior to the arrest Mr. Jones Sr. had no idea what his son was up to. That, of course, is a Catch-22: if Mr. Jones Sr. knew of his son's criminal activity then he is obviously not suitable because he was unable to stop it; but if he was not aware then he was not properly monitoring his son. It would be unsurprising to learn that Mr. Jones failed to tell his father that he was making his living as a drug trafficker. Either way Mr. Jones Sr. would be unsuitable. That is a test that cannot be passed. On this point, see: R. v. Moreira, 2021 ONSC 916. I agree with the view expressed by my colleague London-Weinstein J., as set out in R. v. M.K., 2020 ONSC 2266 at para. 22:
In my view, a surety should not be disqualified because an accused person may have hidden a criminal lifestyle. The people who are most familiar with MK's lifestyle are likely not suitable to act as sureties. It is not a surprise that he has hidden his lifestyle from his hardworking, pro social family. I prefer to ask whether the proposed sureties will be successful in supervising MK while he lives on their terms, in their presence, with the leverage of being able to revoke bail if required. MK will not be able to conceal what he is doing while on house arrest.
[30] In any event, Mr. Jones Sr. is not required to accept that his son is already guilty. A person can be a perfectly acceptable surety while still believing that the accused is not guilty.
[31] I am also aware that ankle monitoring will be employed. In my view, that is helpful on the secondary ground. Mr. Jones will be presumably be deterred from travelling to Thunder Bay or Kingston, the scene of much of his alleged drug trafficking. That said, much of his activity was on the phone. The ankle monitor in this case, while helpful, is not decisive. The real checks on Mr. Jones are his sureties, with the deterrence that ankle monitoring provides.
[32] In my view, taking into account the factors that I have mentioned, Mr. Jones Sr. and Mr. MacDonald can manage the risk that Mr. Jones will re-offend. They both know Mr. Jones well, obviously. Mr. Jones was on probation when he apparently engaged in commercial drug trafficking over the course of several months to earn his living. I am not at all confident that Mr. Jones particularly cares about his sureties losing their pledged amounts. I am, however, fairly confident that Mr. Jones Sr. and certainly Mr. MacDonald will pull the bail if Mr. Jones breaches. I am also fairly confident that neither is under any illusions about Mr. Jones. They both impressed me as mature, solid members of the community. I do have serious concerns about the attempt to interfere with the administration of justice, but I think that is best dealt with under the tertiary ground, to which I turn next.
(b) Has Mr. Jones Met His Onus On The Tertiary Ground?
[33] Ms. Monaco concedes that the Crown has a strong case but argues that the plan of supervision is sufficient for Mr. Jones to meet his onus on the tertiary ground. The same reasons that reduce the substantial likelihood of re-offending also apply to the reasons why the public should have confidence that Mr. Jones can be safely released.
[34] With respect, I cannot agree. Mr. Jones has not met his onus on the tertiary ground. Under s. 515(10)(c) detention will be justified:
(c) if the detention 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.
[35] No single factor is determinative. Moreover, there may be other factors in play. The application of the factors is essentially a balancing exercise.
[36] I start off by noting that the prosecution has a very strong case. Ms. Monaco did not dispute that. There are numerous wiretaps where Mr. Jones discusses drug trafficking, committing robberies, and subverting the course of justice. Some of these wiretaps are corroborated with surveillance and some drug seizures. In two situations, the police deterred a violent crime based on the intercepts. The presence of the police was noted by the conspirators as a reason for calling off some of the plans.
[37] The gravity of the offences is also high. Drug trafficking at the ounce level in cocaine and, especially fentanyl is very serious. The circumstances of the attempted obstruction of justice should give anyone pause. I consider that very troubling. No firearms were used as far as I can tell, but at least one set of intercepts seems to contemplate employing a firearm during a robbery.
[38] Finally, I would think that Mr. Jones is liable for a lengthy term of imprisonment. Certainly not as long as if he were allegedly trafficking at the kilogram level, but considering the nature and quantity of the drug conspiracies there is the likelihood of a stiff penitentiary sentence if he is convicted.
[39] Would a reasonable person have confidence in the administration of justice knowing that Mr. Jones were released? In my view, the answer is "no".
[40] In St. Cloud, at para. 74 the Supreme Court described a reasonable person as a member of the community who is not a legal expert but is properly informed about the philosophy of the legislative provisions, Charter values, and the circumstances of the case.
[41] In Morales Chief Justice Lamer identified the critical importance of preventing interference with the administration of justice at para. 28:
The second objective is to prevent those who have been arrested from interfering with the administration of justice. This second objective is extremely important. The criminal justice system cannot function properly if it is subverted by the accused's interference with the administration of justice. In my opinion, the objective of preventing such interference is sufficiently important to warrant overriding a constitutionally protected right.
[42] A good plan may be relevant to whether the public can have confidence when an accused person is released: R. v. Dang, 2015 ONSC 4254 at para. 58. As Trotter J. (as he then was) put it in that case:
A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused.
[43] Mr. Jones's attempt to subvert the course of justice was extremely serious because it strikes at the integrity of the bail system. At the end of the day, Mr. Jones's attempt to assist Jevon Reid procure a fake surety tips the scales on the tertiary ground. It is very clear that Mr. Jones was quite prepared to subvert the bail process. A careful reading of the wiretap transcript shows that Mr. Jones was primarily concerned with the logistics of hiring a fake surety. The reasonable member of the public might well find it unusual that a person prepared to subvert the bail process is able to obtain bail on his own serious charges. Such a member of the public might reasonably ask how it is that an alleged member of a violent criminal organization engaged in commercial drug trafficking on a very wide scale could be released on bail. I think a reasonable member of the public might well ask how it is that a person can attempt to subvert the bail system and then be released using that same bail system. A reasonable member of the public would likely have no confidence that such a person would abide by a bail, even with a strong surety and a good plan. In this case, I share that view.
DISPOSITION
[44] The application for bail is dismissed.
Released: March 29, 2021
COURT FILE NO.: CR-21-00000086-00BR
DATE: 20210329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CARLTON JONES
REASONS FOR JUDGMENT ON BAIL REVIEW
R.F. Goldstein J.