RULING ON A BAIL REVIEW

B.P. O’MARRA J.

[1] On August 9, 2021, I heard an application to vacate the existing detention order and order a release on terms. On August 13, 2021, I ruled that there had been a material change in circumstances but the application must be dismissed. These are my reasons.

CHRONOLGY OF THE CHARGES

[2] On July 6, 2017, members of the Toronto Police Service and paramedics responded to a report of a female who had overdosed and was unconscious. The officers questioned the applicant who had made the 911 call. While the paramedics tried to stabilize the female, the officers told the applicant that they needed to check his apartment to make sure there were no more overdose victims. The applicant provided an incorrect apartment number. As the officers approached the incorrect apartment number they were told the correct number by the building superintendent. A subsequent search of the applicant’s apartment produced bags of white powder and a digital scale. Subsequent tests revealed that the bags contained 2,029.56 grams of fentanyl. The applicant tried to flee the scene on foot during the search. He was apprehended nearby. He was held in custody. At a bail hearing in the Ontario Court of Justice (OCJ), he was ordered detained based on the primary, secondary and tertiary grounds. On July 23, 2018 he consented to committal for trial in the Superior Court of Justice (SCJ).

[3] The first trial date was set for April 8, 2019. On April 3, 2019, the trial was adjourned at the request of the defence. A second trial date was later set for September 14, 2020. On April 27, 2020, a bail review application was dismissed by Justice McWatt based on the primary, secondary and tertiary grounds. On September 8, 2020, the trial was adjourned at the request of the Crown based on the unavailability of a key police witness. The defence consented to the adjournment on the basis that the applicant would be released on bail with two sureties and house arrest terms. The sureties were his uncle Carlos Musclow in the amount of $500,000 and Stephanie Young in the amount of $20,000, both without deposit. The applicant was only permitted to be outside his residence when in the direct presence of Carlos Musclow and only for medical and legal appointments. A new trial date was set for May 17, 2021.

[4] On October 27 and December 1, 2020, the terms of bail were varied on consent to relax the house arrest terms and permit the applicant to access a cell phone and the internet under the supervision of his surety. Stephanie Young was also relieved of her role as surety and Carlos Musclow became the sole surety in the amount of $520,000 without deposit.

[5] On December 17, 2020, the applicant was arrested and charged with failing to comply with the terms of his release order. Surprisingly, he was released from the police station on an undertaking.

[6] On January 14, 2021, the applicant was arrested and detained in regard to a set of serious and rather bizarre charges. The applicant was located outside of his residence and not in the presence of his surety. He was found at a subway station where he had tried to escape on foot through the subway system. This caused a delay in subway service for ten minutes. He was arrested for mischief (interrupting the subway system) and breach of recognizance. He was searched and the police found $3,800 in cash, 0.54 grams of methamphetamine, a pipe, 3.31 grams of crack cocaine and 12.10 grams of powder cocaine. He was charged with possession of those drugs for the purpose of trafficking. On March 30, 2021, he was ordered detained after a bail hearing on those charges in the OCJ based on the primary, secondary and tertiary grounds.

[7] The third trial date in the SCJ for the original charges was adjourned based on a Crown application related to the unavailability of two police witnesses for medical reasons. The new trial date is now set for June 6, 2022 before a justice without a jury.

PERSONAL CIRCUMSTANCES AND CRIMINAL RECORD OF THE APPLICANT

[8] The applicant is thirty-seven years old. He is single with no children. He is currently involved in a personal relationship with Carrie Fiorillo who is one of his proposed sureties. Ms. Fiorillo is a lawyer who has currently agreed with the Law Society of Ontario (LSO) not to practice law pending disposition of various personal and professional issues she has had over the last few years. I will deal with her suitability as a surety later in these reasons.

[9] The applicant suffers from various physical and psychiatric conditions, including asthma, seizure disorder, depression and anxiety. He also referred to internal anger issues that have responded well to medication. He advised that his depression and anxiety have been increased by the length of time and circumstances of his pretrial detention. That includes lockdowns related to but not limited to the Covid-19 situation.

[10] The applicant has an extensive criminal record that stretches from 2003-2017. The following is a summary of the categories of convictions:

• Trafficking in narcotics x2;

• Breaches of court orders x7;

• Violence (including robberies, forcible confinement and assault) x12;

• Crimes of dishonesty (in addition to the robberies) x3;

• Obstruct police;

• Weapons x7;

• Statutory release violator; and

• Driving offences (dangerous operation, fail to stop for police and fail to remain) x3.

PROPOSED PLAN OF RELEASE

[11] The proposed plan of release includes two sureties with a significant monetary pledge, house arrest terms and electronic monitoring. Linda Flanigan would sign for $10,000 without deposit and assist the residential surety in supervising the release. She has known the applicant from when he was very young. She is employed as a teacher. I would have found her to be a suitable secondary surety if a release order was to be made.

[12] The principal and residential surety presented was Ms. Fiorillo. She is a non-practicing lawyer who would pledge $760,000 without deposit. There was no challenge to the amount she pledged but the critical issue is whether she would be a suitable surety. Ms. Fiorillo acknowledges that she has dealt with serious drug addiction issues for many years. She acknowledged that the main drug involved was cocaine. She has been through expensive and unsuccessful rehabilitation programs. She has had ongoing issues with the LSO. In cross-examination at this hearing she was rather argumentative about her history in practicing law. She tended to blame other counsel and the LSO officials for her various problems. Among the complaints before the LSO is that she was alleged to be under the influence of alcohol on occasions when she appeared in court as counsel. The prospect of her being able to properly supervise the applicant who has a significant criminal record and faces very serious drug charges at this time is not realistic. Even if I were to find that the applicant was otherwise a candidate for bail Ms. Fiorillo would not qualify as a suitable surety.

ANALYSIS

[13] I am satisfied that there has been a material change in circumstances based on the adjournments of his trial dates in the SCJ. However, I am not satisfied on a fresh look at all the circumstances that he has satisfied the onus that rests on him elated to the primary, secondary and tertiary grounds. After the second trial date was adjourned in September 2020 he was released on consent on strict terms. The Crown consented to bail variations in October and December 2020 that relaxed some of his release terms. While on that release on January 14, 2021, he is found outside his residence in violation of the house arrest terms and in possession of cocaine and methamphetamine for the purposes of trafficking. The concerns set out by Justice McWatt in her ruling of April 27, 2020 have been borne out by his subsequent conduct while on release. His track record of violating court orders and continuing involvement in drug trafficking on top of his criminal record requires that he not be released pending his trial. The Crown’s case is strong and the potential for a lengthy penitentiary sentence if convicted is apparent. The detention of the applicant is necessary to maintain public confidence in the administration of justice.

RESULT

[14] The application is dismissed and detention is confirmed.

O’Marra. J

B.P. O’MARRA J.

Released: September 23, 2021

COURT FILE NO.: CR-21-0-204-BR

DATE: 20210923

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CHRISTOPHER MUSCLOW

Applicant

Ruling on a bail review

B.P. O’MARRA J.

Released: September 23, 2021

R. v. Musclow, 2021 ONSC 6335

Case Summary

RULING ON A BAIL REVIEW

CHRONOLGY OF THE CHARGES

PERSONAL CIRCUMSTANCES AND CRIMINAL RECORD OF THE APPLICANT

PROPOSED PLAN OF RELEASE

ANALYSIS

RESULT

Counsel

Parties

Areas of Law

Fact Patterns

Issues