COURT FILE NO.: 19-84
DATE: Oral Ruling 2021/09/03
Written Ruling 2021/09/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Scott Summers
Applicant
Isabel Blanchard for the Provincial Crown
Andrew McAllister for the Federal Crown
Ewan Lyttle, for the Applicant
HEARD: August 19, 2021
September 1, 2021
DECISION ON BAIL REVIEW
lacelle, j.
[1] Scott Summers brings a bail review following his detention on June 23rd, 2021.
[2] Mr. Summers argues that the Justice of the Peace made errors in his decision to detain and accordingly, it is open to this court to review the issue of bail anew. He presents a plan that includes his mother and sister acting as sureties, under terms which include house arrest.
[3] Both the provincial and federal Crowns oppose his release.
[4] On September 3rd, 2021, counsel were advised that Mr. Summers’ application was dismissed. These are the reasons for that decision.
The allegations
[5] Mr. Summers is detained on several charges arising from three separate investigations and charges laid between April 1, 2021 and June 3, 2021. They include:
a. Flight from police, obstruct police, possession of stolen property, and other charges (April 1, 2021). Police allege that the Applicant was spotted speeding on a motorcycle with stolen plates. When they attempted to pull him over, he fled on the bike, then on foot and into a house. He is alleged to have refused to identify himself when initially requested to do so by police;
b. Assault causing bodily harm and failing to comply with his undertaking (May 18, 2021). The allegation here is that the Applicant participated in a group assault on an individual after entering his home. The victim was badly injured;
c. Drug trafficking, weapons offences, and conspiracy to commit an indictable offence (arrest on June 3, 2021). The Applicant is alleged to be the main player in a drug trafficking operation. His arrest followed from an investigation into the trafficking of fentanyl, crystal methamphetamine and cocaine in the city of Cornwall, which commenced in February of 2021. Searches of storage lockers connected to the accused resulted in the seizure of drugs believed to be fentanyl (551 grams), crystal methamphetamine (53 grams), methamphetamine (1552 tablets), cocaine (57 grams), other drugs, several firearms, ammunition, tasers and other weapons. At the time of his arrest, the Applicant was bound by 4 separate weapons prohibition orders. Police estimate the street value of the drugs seized at $247, 550.00.
The Applicant’s background and criminal record
[6] The Applicant was born and raised in this area. He has worked at various construction jobs, including with his mother’s company when it was in operation.
[7] The Applicant has three children. The mother of two of the children (Samantha Genge-Baliski) is a co-accused on the drug and weapons offences. Since the Applicant’s arrest, his mother has taken custody of these children with the approval of the Children’s Aid Society. If he is released to reside with his mother as he proposes, the children will be required to live elsewhere.
[8] Mr. Summers has a criminal record which starts in 2014 and continues through 2019. It includes 14 convictions for various offences, including:
a. Failing to comply with bail orders (x 7);
b. Failing to comply with weapons prohibition orders (x 2);
c. Offences of violence (x2 – one for assault causing bodily harm);
d. Producing a schedule II substance (x 1);
e. Failing to comply with a probation order (x 1).
[9] The Applicant’s longest sentence appears to have been one of 21 days following 39 days of pre-sentence custody. However, he has been sentenced to terms of imprisonment (not including conditional sentences) 4 times.
Additional information about the Applicant’s history while on bail
[10] The Applicant’s mother, Ms. Jennifer Billings, was his surety previously when the Applicant was charged with growing marijuana and other offences (for which he was convicted in 2019).
[11] While under Ms. Billings’ supervision, the Applicant was to abide by a no-contact order with Ms. Genge-Baliski. He breached that condition by leaving his mother’s residence in a car with Ms. Genge-Baliski. The Applicant’s mother called the police and reported his breach. Ms. Billings reports that the Applicant was angry with her for that and they had a falling out. She confirmed that even so, she would not break the law for her son. The Applicant’s sister, who is another proposed surety in this review, was also involved in reporting his breach to police.
The legal principles
The jurisdiction on a bail review
[12] The limits on the powers of a reviewing court were discussed in St-Cloud. A reviewing court does not have an open-ended power to review the initial order following the bail hearing: para 120. It will only be appropriate to intervene if: 1) the justice has erred in law, or if the decision was clearly inappropriate (e.g. if justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another); or 2) if new evidence is submitted and that evidence shows a material and relevant change in the circumstances of the case: at para. 121.
[13] The Applicant seeks a review in this case based on the first of these circumstances.
The secondary grounds
[14] The issue under the secondary ground is whether, if released, there is a “substantial likelihood” that the accused will commit further offences or interfere with the administration of justice. In this instance, because of the nature of the charges, it is the accused who bears the onus of satisfying the court that the bail plan proposed meets this threshold.
[15] The meaning of “substantial likelihood” has been considered by the Supreme Court. The court confirmed in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 that bail cannot be denied simply because a risk is posed by the offender, but 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 the safety of the public. Detention is justified only when it is “necessary”. It is not justified where it would merely be convenient or advantageous.
[16] With respect to the meaning of “substantial likelihood”, Justice Trotter has suggested that “[t]he proper, and accepted approach is a slightly enhanced balance of probabilities standard. This is a suitable standard, as it reasonably protects the accused from being detained on a mere suspicion of future criminal activity”: The Law of Bail in Canada, (G.T. Trotter, Second edition, at p. 136). In R. v. Manasseri, 2017 ONCA 226, Watt J.A. held at para. 87 that “substantial likelihood” refers “to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”.
[17] Justice Watt also clarified in Manasseri at para. 88 that where “the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public” [emphasis in original].
[18] The appropriate factors to consider in assessing the “substantial likelihood” the accused will re-offend may vary from case to case. One factor may be the strength of the case and the nature of the offences charged. As Justice Trotter reasoned in his book, while the accused is presumed innocent at this stage of the proceedings, the strength of the Crown’s case on the charges may affect the court’s assessment of the weight that can be attributed to the index offences in assessing the substantial likelihood of re-offence: The Law of Bail in Canada at p. 142; see also R. v. H., 2006 ONCJ 116 at para. 29 per Trotter J. (as he then was).
[19] Other relevant factors will be the stability of the accused person and any prior record the accused may have. All of the relevant factors are to be considered, including the nature of the proposed bail plan and its strength.
The tertiary grounds
[20] The tertiary grounds permit detention of an accused pending trial “where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment”.
[21] The Supreme Court of Canada reviewed the essential principles that apply in assessing the tertiary grounds in the case of R. v. St-Cloud, 2015 SCC 27 at para. 87. They are as follows:
• Section 515(10)(c) Cr. C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
• Section 515(10)(c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
• The four circumstances listed in s. 515(10)(c) Cr. C. are not exhaustive.
• A court must not order detention automatically even where the four listed circumstances support such a result.
• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
• The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
• To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
• This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.
[22] St-Cloud also provides further guidance in respect of the tertiary ground and its application. The court noted at para. 88 that “if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered”.
Analysis
The jurisdiction to review
[23] The Applicant submits that the Justice of the Peace erred as follows:
a. In failing to consider the totality of the evidence in determining whether he could conclude that the Applicant was willing to comply with release conditions and surety direction. The Justice of the Peace also failed to consider the sureties’ prior reporting of the Applicant was evidence relevant to the Applicant’s willingness to abide by conditions;
b. In failing to provide reasons for his findings on the tertiary grounds that are sufficient to permit meaningful appellate review of that decision.
[24] I find it is only necessary to address the second of the Applicant’s alleged errors.
[25] While the Justice of the Peace stated his conclusion on the tertiary grounds, he provided no express indication of how he arrived at his decision. Even allowing for the fact that he was presumed to know the law, and his review of the evidence on the secondary grounds no doubt informed his conclusion, I find the reasons for the decision on the tertiary grounds do not permit meaningful review. While the reasons need not be elaborate, they should provide more insight into how the conclusion was reached so that they may be understood and reviewed, if necessary.
[26] Accordingly, it is open to me to reconsider whether the Applicant has met his onus on the grounds set out in s. 515 of the Code. Given the nature of the hearing below, which was properly focused on the secondary and tertiary grounds, I assess the plan in accordance with the legal principles that govern those grounds.
The Applicant has not discharged his onus on the secondary grounds
[27] I am not persuaded that the Applicant has met his onus on the secondary grounds. I arrive at this conclusion mindful of the nature of the bail plan proposed and the entirety of the evidentiary record.
[28] The bail plan benefits from the quality of the sureties and the strictness of the supervision proposed. I find that the sureties are of good quality. I also recognize that the proposed release plan is at the upper echelon of the Antic ladder. At a minimum, the Applicant’s mother, who is now entering retirement, would be in a position to meaningfully supervise the Applicant. The quality of the sureties is also demonstrated by their past behaviour in reporting the Applicant when he breached while under their supervision.
[29] Counsel for the Applicant relies heavily on the strength of the bail plan structurally (since it involves house arrest), and also the fact that it provides that the Applicant will be supervised by sureties who have not hesitated to report him in the past. Counsel argues that the court should give weight to the evidence that the Applicant has told his mother that he intends to abide by conditions, and consider that the accused now knows these sureties will act on their obligations to the court if he breaches. This should give the court confidence that the accused will abide by the terms of a release order.
[30] While these facts are undoubtedly significant, there is a substantial body of evidence that weighs against the conclusion sought by the Applicant. In this regard, the prior behaviour of the Applicant, as reflected in his criminal record, weighs heavily. The current allegations also have sufficient strength to be given meaningful weight in the analysis, notwithstanding the presumption of innocence.
[31] With respect to the criminal record, most of the accused’s criminal record involves breaching a court order. Where it does not, it involves convictions related to the current allegations - there are prior offences of violence and involving drugs. The evidence shows the accused has breached the terms of his recognizance in the past when his mother and sister were involved in his supervision on bail. While the evidence shows that these women are very good sureties who have in the past faithfully discharged their responsibilities to the court, it also shows that the accused has disregarded their supervision and acted in his own interests.
[32] In any case, my concern is not primarily whether the sureties will call the police if the Applicant breaches. It is whether the Applicant has shown that he may be released because there is not a substantial likelihood he will reoffend or interfere with the administration of justice.
[33] In that regard, the Applicant’s past history with these sureties and the current allegations of flight from police are both worthy of comment. With respect to the flight allegations, they seem particularly strong, and so I give them some weight in my assessment of this ground. If the accused again left the control of his sureties, as he has in the past, and they called the police, I have insufficient confidence that what would follow would be an orderly return to police custody prior to any further offences being committed or any interference with the administration of justice.
[34] Regardless, given the repeated demonstration by the Applicant that he does not respect court orders, even with repeated incarcerations following his breaches, I am not persuaded that the certainty that his sureties will call the police will mean more to him on this occasion than it has in the past. In other words, while the plan of supervision that is proposed is robust, in this case, it is not enough to discharge the onus on the secondary grounds to show that the sureties will call the police in the event of a breach. Given the risks presented by the Applicant, who has a proven history of violence (which on at least one occasion was serious enough to cause bodily harm), prior involvement in drug production, and breaches of weapons prohibition orders, the court needs to have confidence he will follow the court order and not put his sureties in the position of having to call police. Given the totality of the evidence, while I consider his assurance to his mother that he will do so on this occasion, I give that evidence little weight. I find his past behaviour is a more reliable indicator of how he might behave in the future. Even with the strict plan proposed, I find the Applicant poses a substantial likelihood of committing an offence and that the manner of offending for which he poses a risk would endanger the protection or safety of the public.
The Applicant has not discharged his onus on the tertiary grounds
[35] I am also not persuaded that the Applicant has discharged his onus on the tertiary grounds. While they are not the exclusive considerations, St-Cloud confirms that the criteria outlined in s. 515(10) of the Code should be given particular attention. Accordingly, I turn to them now:
a. While the Crown’s case appears strong on the first set of allegations, it is the strength on the remaining two sets which are of chief concern. I have considered that the only evidence on the record before me relating to whether the Crown can identify the Applicant as a party in the assault causing bodily harm is surveillance video showing he entered the victim’s building. The allegation that the accused participated in the assault will no doubt be subject to significant challenge and is of modest strength. I have also considered the Applicant’s submissions about the strength of the case on the drug and weapons charges, which are the charges which most attract consideration of this ground on the bail hearing. No doubt much of this case will rise and fall on the strength of the search warrants. In that regard, I note they are presumptively valid and were issued by a judge of the Ontario Court of Justice. While analysis of the substances and firearms has yet to be concluded, at this stage, the Crown’s case for the drug and weapons offences appears strong;
b. With respect to the gravity of the offences, they involve allegations of violence, serious drug trafficking, and the possession of weapons including firearms. Even without consideration of the group assault alleged, the allegation that fentanyl was being trafficked, and at these quantities, is very serious. The scope of the harm caused by these types of offences is enormous and of significant concern to the public;
c. The third factor – the circumstances in which the offences were committed and whether a firearm was used – leads me to consider that the allegations involve a conspiracy in this trafficking operation. The Applicant is alleged to be the main player in what is, on its face, a very significant drug operation. The seizure of various weapons, including firearms, heightens the dangerousness of the alleged enterprise and suggests its operators are using violence and intimidation;
d. Whether or not fentanyl in the amounts alleged is proved by the Crown, the accused is facing a significant penitentiary sentence given all the other substances the Applicant is alleged to have been trafficking. The addition of fentanyl as one of the substances being trafficked pushes the potential sentencing range to the upper end of sentences for drug trafficking.
[36] In conducting the balancing exercise required under this ground, I apply the principles set out above from St-Cloud. I consider the presumption of innocence, and that confidence in the administration of justice is undermined when persons who may be released pending trial are detained. I consider the bail plan proposed, including the quality of the sureties, and the extent to which the strength of the bail plan is undermined by the Applicant’s prior history of breaching court orders. Having considered all the relevant factors, in my view, the accused has not shown that his detention is not necessary to maintain confidence in the administration of justice.
Conclusion
[37] For these reasons, the Applicant’s application is dismissed.
The Honourable Justice Laurie Lacelle
Released: September 14, 2021
COURT FILE NO.: 19-84
DATE: Oral Ruling 2021/09/03
Written Ruling 2021/09/14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Scott Summers
Decision on Bail review
The Honourable Justice Laurie Lacelle
Released: September 14, 2021