OVERVIEW

Background Facts

[1] The applicant, Gary Johnson, brings a bail review of his detention originally ordered by Justice of the Peace Madigan on 22 September 2020. On 28 January 2021, Spies J. conducted a 90 day review of the applicant’s detention and ordered his continued detention.

[2] Mr. Johnson is charged with a number of offences related to possession of a loaded, prohibited firearm and fentanyl for the purpose of trafficking. He is also charged with failing to comply with his recognizance entered into on 3 July 2018, as a result of the firearm allegations.

[3] Mr. Johnson entered into the recognizance as a condition of his release after being arrested for trafficking cocaine in March 2018. He pleaded guilty on 22 September 2020 and received a 7 month sentence imposed by McMahon J.

[4] Mr. Johnson’s current charges are the result of the execution of search warrants obtained by police when investigating his drug trafficking activities on 1 September 2020: police discovered a small quantity of fentanyl in Mr. Johnson’s car, and a loaded 9mm handgun and three bullets in the drawer of his dresser located in his bedroom at 151 Charlton Settlement Avenue in Toronto where he lived with his parents.

[5] On 22 September 2020, Mr. Johnson was detained in a reverse onus hearing on the secondary and tertiary grounds. The Justice of the Peace found that the potential surety, Mr. Johnson’s father, was not appropriate given that the firearm was found at Mr. Johnson’s parents’ home where he was residing. Moreover, the history between Mr. Johnson and his father revealed a lack of trust between the two and a dearth of knowledge of Mr. Johnson’s activities.

[6] The Justice of the Peace indicated that a different surety and stronger plan might have led to release.

[7] On 28 January 2021, Mr. Johnson appeared before Spies J. pursuant to s. 525 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Johnson called a different surety: a family friend with a house arrest plan. Justice Spies found the plan to have some weaknesses but held that the secondary grounds concerns had been met. However, she detained Mr. Johnson on the tertiary ground on the basis that Mr. Johnson’s release plan was deficient and would lead to public confidence in the administration of justice being undermined if he was released.

Material Change of Circumstances

[8] As this is a review of the Justice of the Peace’s decision, it is both a reverse onus situation and one that requires an error in principle in the reasons for release or a material change of circumstances.

[9] In this case, Mr. Johnson argues that an updated plan with a different surety accompanied by GPS electronic monitoring constitutes a material change of circumstances.

[10] Although the Crown takes the position that there is very little difference in substance from the original bail hearing plan, I am inclined to agree that, given the Justice of the Peace’s comments regarding the possibility of bail with a different surety, the addition of GPS monitoring does amount to a material change of circumstances. Mr. Johnson is therefore entitled to a de novo show cause hearing.

SHOULD MR. JOHNSON BE RELEASED?

The Plan

[11] On this application, Mr. Johnson produced a new surety: his mother, Rose Johnson.

[12] Ms. Johnson is 70 years old and resides at 151 Charlton Settlement Avenue. She owns the property with her husband and it is worth approximately $900,000. Mr. Johnson’s parents have approximately $700,000 in equity in the property. Ms. Johnson works as a personal support worker in the community for approximately 6 hours a day, 5 days a week. She is prepared to offer $40,000 as a surety amount.

[13] Ms. Johnson was surety for her son when he was charged with trafficking cocaine. Mr. Johnson’s conditions of release required him to reside with Ms. Johnson at 151 Charlton Settlement Avenue and not possess any firearms. Mr. Johnson was subject to this bail when the police discovered the loaded handgun at his parents’ house.

[14] On this occasion, Mr. Johnson proposes a plan of house arrest with a need to wear an ankle bracelet provided by the SafeTrack monitoring system. Ms. Johnson also indicates that she has motion detecting cameras installed at the front and back of her house. These devices are linked to her smartphone allowing real time observation and alerts if any of the front or rear doors are opened.

The Secondary Ground

[15] Section 515(10)(b) of the Criminal Code, describes the "secondary ground" of detention in the following way:

[W]here 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.

[16] An accused's release is only denied when there is a substantial likelihood of committing further offences or interfering with the administration of justice and when it is necessary for the public safety: R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, at p. 737; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at paras. 67-68.

[17] Here, the secondary ground concerns arise from Mr. Johnson’s prior history of bail as well as the nature of the offence. The fear is that, if released, Mr. Johnson will continue to deal drugs and obtain a firearm to assist him in drug trafficking.

[18] Unfortunately, Mr. Johnson’s prior bail breach provides genuine grounds for concern. He was on bail for serious drug offences and required to live at his parents’ home. He was forbidden from possessing any weapons. The firearm found at his parents’ home was a clear breach of those conditions.

[19] Moreover, the surety for that bail was his mother and his mandated place of residence was his home - the very same surety and residence proposed at this hearing. In this sense, there is very little difference between Ms. Johnson and Mr. Johnson’s father who was rejected as an appropriate surety at the original bail hearing.

[20] In light of this history, I have very little confidence in the plan put forward on Mr. Johnson’s behalf. Although Ms. Johnson is sincere and well intentioned, past events show she has very little control over her son and his activities. Moreover, her hours of work will keep her away from the home for a significant part of the day.

[21] Mr. Johnson also advances the existence of a GPS monitoring system to buttress his plan. I have in other cases expressed the view that electronic monitoring is only a useful tool when accompanied by a strong surety plan: R. v. Hassan, 2020 ONSC 7908, at para. 32. On its own, electronic monitoring provides only limited value in the secondary ground context.

[22] An ankle bracelet may disclose the location of its wearer but does not record or divulge what they are doing. Other decisions reflect this weakness: R. v. Palijan, [2012] O.J. No. 6549 (S.C.), at paras. 24-27; R. v. Sotomayor, 2014 ONSC 500, at paras. 40-41; R. v. Ma, 2015 ONSC 7709, at para. 56; R. v. Osman, 2020 ONSC 965, at paras. 30-35.

[23] As I have already made clear, the surety and plan put forward by Mr. Johnson is inadequate and GPS monitoring would not be enough to satisfy the very real secondary ground concerns.

Tertiary Ground

[24] I would also deny judicial interim release on the tertiary ground.

[25] Section 515(10)(c) of the Criminal Code sets out the following statutory factors requiring consideration in deciding whether detention is necessary to maintain confidence in the administration of justice:

(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.

[26] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada explained that the tertiary ground had to be considered separate and apart from the secondary ground. In determining release under this ground, the question to be asked is whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

[27] The four factors set out in s. 515(10)(c) are not exhaustive and, further, must be analysed together and not separately: R. v. E.W.M. (2006), 2006 31720 (ON CA), 223 C.C.C. (3d) 407 (Ont. C.A.), at para. 31. As noted, the list is not exhaustive. Other factors to be considered include personal circumstances of the accused, status of the victim and the impact on society of a crime committed against that person: St-Cloud, at para. 71.

[28] However, where all four factors have "maximum force" detention is "entirely to be expected": E.W.M., at para. 32. Equally, if the crime is serious and there is overwhelming evidence against the accused, pre-trial detention will usually be ordered: St-Cloud, at para. 88.

[29] In this case, the Crown’s case is very strong: the only real defence attack would lie in a challenge to the information to obtain the warrant. The allegations are serious and involve a firearm found in Mr. Johnson’s possession when he was subject to a court order explicitly prohibiting him from doing so. There is no dispute that conviction for possession of a firearm along with fentanyl carries a potentially lengthy term of imprisonment.

[30] I find that a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

[31] For these reasons, Mr. Johnson’s continued detention is ordered under the secondary and tertiary grounds.

S.A.Q. Akhtar J.

Released: 23 July 2021

COURT FILE NO.: CR-21-00000193-00BR

DATE: 20210723

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GARY JOHNSON

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Johnson, 2021 ONSC 5170

Case Summary

OVERVIEW

Background Facts

Material Change of Circumstances

SHOULD MR. JOHNSON BE RELEASED?

The Plan

The Secondary Ground

Tertiary Ground

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 1