R. v. White, 2021 ONSC 4719

COURT FILE NO.: CR-21-1206-BR

DATE: 2021-07-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Melissa White

Applicant

Christina Croteau, for the Provincial Crown

Robert Beckett, for the Federal Crown

Enzo Battigaglia, for the Applicant/Accused

HEARD: May 18, 2021

DECISION ON BAIL REVIEW APPLICATION

K.E. CuLLIN, J.

1This matter appeared before me for a bail review. The applicant, Melissa White, (the “Applicant”), was ordered detained on March 24, 2021 following a contested bail hearing before Justice of the Peace D. Lafleur (“J.P. Lafleur”). Both the Provincial and Federal Crown responded and opposed the Applicant’s release.

2On May 18, 2021, I provided an oral decision detaining the Applicant in custody. This represents my fulsome reasons for that decision.

Overview of Prior Proceedings

3The Applicant is (32) years of age and is ordinarily a resident of Toronto, Ontario.

4The Applicant appears before the court with respect to two sets of charges. The initial charges were issued following an arrest on February 26, 2020. The subsequent charges were issued following an arrest on March 16, 2021.

5The arrest on February 26, 2020 arose as a result of an undercover drug investigation. The Applicant was identified as a person of interest during that investigation and was arrested following a traffic stop. At the time of her arrest, she was driving the motor vehicle that was stopped; it was later discovered that she was a prohibited driver. A search of the vehicle revealed 516.57 grams of cocaine, a bag of cutting agent, a scale and three cellphones. A search of the Applicant’s person revealed a cellphone and $325.00. She was charged with multiple driving offences, possession for the purpose of trafficking, and possession of proceeds of crime. She was also charged with trafficking as a result of her alleged sale of cocaine to an undercover police officer.

6Following the Applicant’s arrest on February 26, 2020, she was detained in custody and a contested bail hearing was conducted before Justice of the Peace S. Ashick. On March 4, 2020, she was released from custody on strict conditions – she was not permitted to attend the City of Greater Sudbury except for court, and she was subject to a form of house arrest with her sureties in Scarborough. In September 2020, her bail conditions were varied to provide for an 11:00 p.m. curfew, and in December 2020 they were further varied to remove the curfew. Two sureties secured her release; her mother posted bail of $500.00, without deposit, and her sister posted bail of $5,000.00, without deposit.

7On March 16, 2021, members of the Drug Enforcement Unit of the Greater Sudbury Police Service observed the Applicant driving in the City of Sudbury in breach of her recognizance. They followed her until she reached her destination and, as they approached her, she attempted to flee by driving towards one of the arresting officers. She was eventually arrested at gunpoint. A search of her person revealed three bags containing approximately $5,000.00 of cocaine, crack cocaine and Fentanyl, as well as a concealed fixed blade knife. A search of her vehicle revealed approximately $16,000.00 in cash, a digital scale and two cellphones.

8A bail hearing was conducted on March 18, 2021 and a decision was rendered on March 24, 2021. The Crown brought an application pursuant to s.524 of the Criminal Code to revoke the Applicant’s recognizance of bail from March 4, 2020; that request was not opposed. The Applicant was required to satisfy a reverse onus at the hearing.

9At the bail hearing, the court received much the same evidence that was presented at this bail review. The Applicant made submissions regarding the potential weaknesses in the Crown’s case with respect to the charges of February 26, 2020. The proposed surety testified, as did Steven Tam on behalf of the GPS monitoring company.

10J.P. Lafleur determined that the Applicant had failed to meet her onus on the secondary and tertiary grounds and ordered her detention pending trial. It is this decision that is being considered at this bail review.

Circumstances of the Applicant

11Despite her relatively young age, the Applicant appears before the court with a lengthy criminal record. Her involvement with the criminal justice system began at age (14) and her record of drug offences began at age (20). Noteworthy in her record are her history of crimes of violence and drug trafficking, her prior attempts to flee the police and resist arrest, as well as her prior non-compliance with court orders and release terms.

12The charges that bring the Applicant before the court are serious and arise primarily from activities associated with the illegal drug trade.

13There are several aggravating factors surrounding the Applicant’s current charges which must be considered by the court. The Applicant has been found in possession of not only cocaine, but Fentanyl, a drug which attracts enhanced sentencing upon conviction. She has been found in possession of significant amounts of cash, drug paraphernalia, and a concealed weapon. She attempted to flee from police and was the subject of a “spectacular” arrest at gunpoint.

14These circumstances and aggravating factors make the Applicant’s reverse onus a daunting burden to satisfy.

Proposed Surety and Release Plan

15Immonie Joris, the Applicant’s proposed surety, is also (32) years of age. She resides in Niagara Falls and is the single parent of two children, aged (11) and (13). She is employed at Sitel Group as a communications and collections agent. It is her evidence that she has been friends with the Applicant for ten years.

16Ms. Joris appears before the court with no prior criminal record and no other surety obligations. She is prepared to make a deposit in the amount of $7,000.00, which she notes is her life’s savings, to secure the Applicant’s release.

17It is proposed that the Applicant would reside with Ms. Joris and her children. The Applicant would reside in Ms. Joris’ basement, which is currently her workspace. Ms. Joris indicates that she works from home and would be able to supervise the Applicant. It is also proposed that the Applicant would submit to GPS monitoring.

18Since the bail hearing, there has been a change in Ms. Joris’ circumstances. As a result of the pandemic, Ms. Joris’ children are now being schooled virtually from home.

19At the bail hearing, Ms. Joris testified that she felt able to manage the Applicant. She indicated that she was aware that the Applicant had issues with drug and alcohol addiction, although she acknowledged that she had never discussed those issues with the Applicant and that she was unaware of the extent of the Applicant’s addictions.

20Notably absent from Ms. Joris’ evidence was any discussion about the potential impact of the Applicant’s presence on Ms. Joris’ children. Given the Applicant’s history of violence and her prior attempts to flee and resist arrest, one cannot help but be concerned about what might occur in the presence of the children if Ms. Joris were ever required to revoke the Applicant’s bail.

General Legal Principles re: Bail Review

21The Applicant’s request for bail review has been submitted pursuant to s.520 of the Criminal Code.

22A bail review is not a hearing de novo. The presiding Justice must determine whether it is appropriate to exercise their power of review, within the following parameters (R. v. St-Cloud, 2015 SCC 27, paras. 92, 120-121):

a. Whether there is admissible new evidence that demonstrates a material and relevant change in the circumstances of the case;

b. Whether the decision denying release contains findings or reasoning which are clearly inappropriate (specifically, whether the Court gave excessive weight to one relevant factor or insufficient weight to another); or,

c. Whether the decision denying release contains an error of law.

23If the court determines that it is appropriate to exercise its power of review, the presiding Justice may conduct an independent review of the evidence in accordance with s.515(10) of the Criminal Code (R. v. St-Cloud, paras. 138-139). If the independent review determines that release is appropriate, terms of release may be ordered in accordance with s. 515 of the Criminal Code.

24Pursuant to s.520(7)(e) of the Criminal Code, the onus at a bail review hearing rests with the Applicant. In this case, if I find that there are grounds to review, the onus to satisfy me on that review will also rest with the Applicant.

25At a bail review, and indeed throughout the detention process, the court must always be mindful of the accused’s constitutional right to be presumed innocent. Corollary to that is the right not to be denied bail on reasonable terms without just cause (R. v. Antic, 2017 SCC 27, para. 67).

Analysis

Is there any admissible new evidence?

26The Applicant asserts that there have been new developments since the bail hearing on March 18 & 24, 2021. Specifically, the Applicant asserts that, at a Judicial Pretrial Conference (“JPT”) conducted on April 26, 2021, the court provided an opinion regarding the merits of the charges of February 26, 2020 that was favorable to the Applicant.

27I would note first that I was the judge who conducted the JPT. As such, I am aware of the opinion to which the Applicant refers and the strengths and weaknesses of at least some of the charges before the court.

28Notwithstanding this, I question whether the Applicant is entitled to rely on an opinion given at a JPT in support of her bail review application. Opinions given at a JPT are privileged settlement discussions. Rule 28 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7) is clear that pre-trial conference materials and sentencing positions are not intended to become part of the court record.

29I would note as well that the criteria in St-Cloud require that there be evidence supporting a change in circumstances. The key word is “evidence”. In my view, opinions and recommendations rendered at a JPT are not evidence. They non-binding, privileged resolution discussions. Even if the discussions were to constitute evidence, they would be inadmissible. None of the parties to a JPT are compellable as witnesses to testify about the opinions and recommendations that were given.

30I find that there is no evidence before the court of any material or relevant change in circumstances since the Applicant’s bail hearing that would warrant a bail review.

31If anything, the evidence has changed to the Applicant’s detriment. The proposed surety’s children are now out of school and at home attending school virtually while the surety is also attempting to work from home. It is arguable that the surety will be more challenged in her ability to supervise the Applicant as a result of these new circumstances.

Does the bail decision contain any inappropriate reasoning or findings?

32I find nothing inappropriate in the findings or reasoning set out in J.P. Lafleur’s decision.

33The evidence supported J.P. Lafleur’s finding that the Applicant had a strong connection to the illegal drug trade. She acknowledged the Applicant’s submissions with respect to potential weaknesses in the Crown’s case, but properly weighed that against the totality of the physical evidence. She properly considered the Applicant’s extensive criminal record for similar offences, her prior breaches of court orders and release conditions, and the lengthy term of incarceration that she was facing in the evening of a conviction.

Does the bail decision contain any errors of law?

34In reviewing the decision of J.P. Lafleur, I must consider whether her reasons were sufficient. That is, did they meet the “functional” need of the Applicant to know why her bail was denied, and were they reasonably intelligible, so as to permit meaningful review.

35I find that there was no error of law in J.P. Lafleur’s decision. She clearly set out the test that she was required to apply, and she proceeded to apply that test. She was not required to examine every piece of evidence in detail; this was, after all, a bail court and not a trial.

36The Supreme Court of Canada in R. v. Sheppard, 2002 SCC 26 made it clear that a court is not held to a standard of perfection in rendering decisions. Even in those circumstances in which a reviewing court finds that the reasons could have been more clear, it is in the discretion of the reviewing court to explain the rationale for the lower court’s decision in its own reasons – a new hearing is not necessarily warranted.

Grounds for Detention

Primary Ground

37J.P. Lafleur held that the Applicant’s detention was not warranted on the primary ground. It was her view that the primary ground was satisfied by the Applicant’s proposed bail plan. I concur with this finding.

Secondary Ground

38The role of the court in assessing the secondary ground in a reverse onus hearing was well-summarized by J.P. Leblanc in R. v. Lutczyk, 2013 ONCJ 127 (para. 44):

The Court is cognizant of case law which requires a two-step analysis of the secondary ground: the first step being evidence from which the jurist can conclude ongoing criminal lifestyle; and if so, with the onus on the accused is there a plan of supervision and sureties that will ensure the defendant will probably not engage in further criminal activity or interfere with the administration of justice. The secondary ground involves prediction of future conduct which requires an examination of the accused, the sureties, the amount pledged and the proposed plan of release.

39The Applicant submits that the J.P. did not conduct any meaningful analysis of the grounds for the Applicant’s detention on the secondary and tertiary grounds. While her analysis of the evidence regarding the secondary ground was not detailed or lengthy, she acknowledged that the circumstances of the Applicant’s offences triggered the need to conduct a “risk analysis”. In doing so, it is my view that she did turn her mind to the secondary ground for detention.

40J.P. Lafleur noted, correctly, that the “drug subculture” in which the Applicant appears to be involved is, “very profitable” and “difficult to give up”. She also noted that, at the time of her March 16, 2021 arrest, the Applicant was on release with two sureties, her mother and her sister, and that she had shown disrespect for them and for the justice system. She noted that the Applicant has a lengthy criminal record, including multiple convictions for drug trafficking offences. All of these findings pertain to the secondary ground.

41Had I conducted a hearing de novo I would have found that the Applicant did not satisfy her onus of demonstrating that her detention was unjustified on the secondary ground. I agree with J.P. Lafleur’s finding that the Applicant’s detention is necessary for the safety of the public, as there is a substantial likelihood that she will commit further offences if she is released.

Tertiary Ground

42In assessing the tertiary ground, a key consideration for the court is the effect of release on the public’s confidence in the administration of justice (R. v. Mordue, 2006 CanLII 31720, para. 25). The court reviews the circumstances of the offence including: the presence of violence; the context of the offence; the role of the accused; and the involvement of others. If the offence is "serious or very violent" or if there is "overwhelming evidence against the accused", then pre-trial detention will usually be ordered (R. v. St-Cloud, 2015 SCC 27, para. 88).

43J.P. Lafleur conducted a detailed assessment of the tertiary ground for detention. She noted the alarming rate of drug crimes and drug deaths in the community. She also noted that in considering the public’s confidence in the administration of justice, she was required to consider the circumstances and the gravity of the Applicant’s alleged offences, the fact that she was driving while disqualified from doing so, the fact that she was found in possession of a significant quantity of drugs and money, and the lengthy sentence that she was facing if convicted. She also identified the Applicant’s gunpoint arrest and the danger posed to the arresting officer as an aggravating factor when assessing the tertiary ground for detention.

44It is my view that the J.P.’s reasons reflected a thorough analysis of the tertiary ground, and I concur with her assessment. Had I conducted a hearing de novo I would have found that the Applicant did not satisfy her onus of demonstrating to the court that her detention was unjustified on the secondary ground.

Disposition

45I find no grounds to interfere with the bail decision of Justice of the Peace Lafleur. that the Applicant’s continuing detention is appropriate, and I deny her bail review application.

46The charges before the Superior Court of Justice are adjourned to May 31, 2021 at 2:00 p.m. for a continuation of the Judicial Pretrial Conference. The Superior Court matters are also referred to the trial co-ordinator to schedule a date for a pretrial Application by the accused challenging her identification by police witnesses.

47The charges of breach probation and driving while disqualified which are currently before the Ontario Court of Justice are adjourned to June 7, 2021 for trial. The Applicant’s new charges before the Ontario Court of Justice are adjourned to May 20, 2021 at 9:30 a.m., to be spoken to.

K.E. Cullin, J.