Court File and Parties

COURT FILE NO.: CR-21-00000251-00BR DATE: 2021-09-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. MICHAEL GRANT

BEFORE: MOLLOY J.

COUNSEL: Calvin Rosemond, for the Applicant/Defendant Kim Walker, for the Respondent/Crown

HEARD: September 16, 2021, remotely by Zoom

Endorsement

PUBLICATION BAN pursuant to ss. 517(1) and 520(9) of the Criminal Code. [FOR CLARITY - COUNSEL ARE PERMITTED TO CIRCULATE ENDORSEMENT TO OTHER COUNSEL OR USE IN COURT. PUBLICATION AND QUOTATION OF GENERAL PRINCIPLES FROM THE CASE IS PERMITTED. PUBLICATION IS PROHIBITED OF ANY FACTS ABOUT PARTICULAR DEFENDANT’S CHARGES, AND IDENTIFYING INFORMATION ABOUT THE DEFENDANT OR HIS PERSONAL CIRCUMSTANCES]

Introduction

[1] Michael Grant is currently charged with having robbed a TD Bank on University Avenue in Toronto on August 1, 2018. He applied for review of his detention based on a material change in circumstances. After a day-long hearing, I dismissed the application, stating that I would provide written reasons for my decision at a later date. Those reasons are set out below.

Background

[2] Mr. Grant was arrested and charged with the Toronto bank robbery on November 11, 2018. He applied for bail. On December 3, 2018, Justice of the Peace Conacher released Mr. Grant on a recognizance, with his wife, Tammy Grant, as his surety and subject to strict conditions. On three occasions, Mr. Grant was arrested for breaching the conditions of that bail, each time pleading guilty and being sentenced to a number of days in custody, as follows:

(i) January 22, 2019, Hamilton: breach bail and breach probation (45 days in addition to 14 days time served);

(ii) February 19, 2019, Toronto: being unlawfully at large (25 days custody and one year probation)

(iii) September 20, 2019, Hamilton: breach bail and breach probation (one day in addition to time served of 38 days, treated as equivalent of 57 days).

[3] Subsequently, on June 17, 2020, Mr. Grant was arrested in Hamilton and charged with other offences including: possession of fentanyl for the purposes of trafficking; possession of cocaine; possession of prohibited weapon (a switchblade); and various charges relating to breaches of the December 2018 recognizance and other probation orders. This time, the Crown applied to revoke his previous bail. Justice of the Peace Dudar revoked that bail and considered the bail application before him as relating to both the Toronto bank robbery and the subsequent Hamilton charges, with a reverse onus on Mr. Grant to justify his release. The proposed plan involved: a primary surety (Mr. Grant’s sister-in law Mildred Ogden); strict house arrest unless in the company of his surety; counselling for Mr. Grant’s drug addiction potentially through a day-program in Hamilton known as the Bridge; and electronic ankle bracelet monitoring. The Justice of the Peace held that detention was not necessary on the primary grounds. However, the Justice Peace went on to find that Mr. Grant had failed to meet his onus on the secondary and tertiary grounds and therefore ordered his detention. The Justice of the Peace’s main concern was Mr. Grant’s long and extensive criminal record over the past three decades, which included many breaches of court orders and crimes of dishonesty. The underlying cause of this criminality would appear to be Mr. Grant’s deep-seated drug addiction. The Justice of the Peace found that there was a substantial likelihood Mr. Grant would reoffend in a manner dangerous to the public, regardless of the strict bail conditions proposed. On the tertiary grounds, the Justice of the Peace found there was an overwhelmingly strong Crown case, the prospect of a long sentence, and the possession of knives as a troubling circumstance in the Hamilton drug charges. He determined that Mr. Grant had proven himself to be “ungovernable” regardless of the best intentions of the surety.

[4] Mr. Grant applied to the Superior Court of Justice for a review of the detention order. That application was dismissed by Goodman J. on September 2, 2020. A “new” plan had been proposed involving a second surety named Tanya Jones, who would stay with Mr. Grant whenever Ms. Ogden had to be away. Under this plan, Mr. Grant would be supervised 24/7. Further, he had been accepted into day programs at the Bridge for six days a week, which would include referrals for addiction counselling. Counsel for Mr. Grant also argued that the Justice of the Peace made two legal errors, a proposition that was not accepted by Goodman J., a decision with which I agree. Before me, the applicant did not raise any alleged legal errors by the Justice of the Peace. Goodman J. held that the plan of supervision proposed before him did not constitute a material change, but rather was more like “re-shuffling the deck” and was essentially the same plan that was before the Justice of the Peace.

[5] Since the bail review hearing, Mr. Grant proceeded to a preliminary hearing on the Hamilton charges. Following that hearing, Mr. Grant pleaded guilty to one count of simple possession of cocaine, one count of possession of a prohibited weapon (a switchblade), and one further count of failing to comply with his December, 2018 recognizance. The Crown withdrew all of the other charges. Mr. Grant was sentenced to one month on each count, consecutive, which was applied against the time he had served as a six-month credit.

[6] Both parties before me took the position that the resolution of the Hamilton charges constitutes a material change in circumstances. I agree. The previous bail was refused, at least in part, because of the serious charges facing the accused, which had been committed while he was on bail and in breach of that bail. Since that time, those Hamilton charges have been resolved and the most serious charge (possession of fentanyl for the purposes of trafficking) has been withdrawn. Clearly, Mr. Grant was in breach of his bail conditions at the time of his arrest on the Hamilton charges, which is acknowledged by his guilty plea. He was also in possession of a switchblade and a small quantity of cocaine, the latter not being entirely surprising in light of his decades long addiction to crack cocaine. These are not insignificant charges, and it is troubling that they were committed while on bail. However, the sentence for these offences was not a heavy one, and the removal of the fentanyl trafficking charge fundamentally changes the landscape. In short, the pending charges before me are considerably less serious than was the case before the Justice of the Peace. On the other hand, the Hamilton charges to which Mr. Grant pleaded guilty are now proven; Mr. Grant is no longer presumed innocent of them.

Primary Ground

[7] The Crown has not asserted any concern that Mr. Grant would abscond rather than face the charges against him. I accept that Mr. Grant is likely to attend court for his trial.

Secondary Ground

[8] I agree with the Crown’s submission that there is a substantial likelihood that Mr. Grant will reoffend if he is released on bail and that, as such, he represents a danger to the community.

[9] In my view, Mr. Grant’s past behaviour is the most reliable predictor of his likely future behaviour. He has over 60 separate entries on his criminal record. The first conviction shown on the record is in 1988. Thereafter, there are convictions of various types for virtually every year he was not in custody. The only significant gap is between 2013 and 2018. He was sentenced to 2 years less a day for a robbery in Hamilton in October, 2013. When released from serving that sentence, he moved to Nova Scotia, where he lived with his spouse, but in the same home as her parents. The next offence on his record is a fraud conviction in Hamilton on August 30, 2018. Apart from that interval, his criminal record has been unremitting. His record includes weapons offences, drug trafficking, assaults, thefts, fraud, and robberies. There are multiple crimes of dishonesty. Particularly troubling in the context of the application now before me is that his criminal record includes: six convictions for breaching prior recognizances (including breaching his original release order on the very charges now before me in three separate ways); four convictions for failing to appear in court; one conviction for escaping lawful custody; and one conviction for being unlawfully at large (this also being quite recent). Mr. Grant has demonstrated repeatedly that he has no regard for any conditions a court may place upon him.

[10] Given the other convictions on Mr. Grant’s record, it is also apparent that if he does reoffend it is likely to involve some form of violence, even if only by way of threat. He has numerous convictions for crimes of violence. If he needs to feed his addiction, he will do what he considers necessary to accomplish that.

[11] The proposed surety is well-meaning and committed to supervising Mr. Grant 24 hours a day, seven days a week. She testified that she has put up surveillance cameras at all of the exit points in her home, with alarms going directly to her cellphone. However, nobody can truly supervise another person 100% of the time. It is simply impossible. There are also a number of other family members in the house, who will be coming and going constantly. This is simply not a realistic mechanism for preventing Mr. Grant from leaving if he is motivated to leave. I accept the proposed surety’s evidence that if Mr. Grant leaves, she will call the police. However, that is cold comfort once Mr. Grant has already gone. It is Mr. Grant who is the problem here. He has demonstrated repeatedly that he will violate any court order designed to retrain him.

[12] I also do not accept that the recent plan to have Mr. Grant admitted to a day program for counselling to control his addiction will be a game-changer at this point. I reject the suggestion that this is his “first meaningful opportunity” to get help for his addiction. He has been using drugs since sometime in the 1980s.

[13] I find Mr. Grant’s detention is necessary on the second ground.

Length of Anticipated Sentence

[14] The robbery with which Mr. Grant is now charged was committed in August 2018. I do not agree with the submission of defence counsel that, if convicted, Mr. Grant will have already spent more time in custody than he would be sentenced to for this crime.

[15] Mr. Grant’s trial is scheduled for April 2022. He has already spent 367 days in custody, to which would be added another 110 days by the time of his trial date if he is not granted bail. Even if that time is credited at 2:1 (as urged by his counsel as being appropriate given the conditions during COVID), that would amount to less than a credit of four years in total for time served.

[16] Mr. Grant already has six robberies on his criminal record; if convicted on this charge, this will be his seventh. At least three of the other robberies were also bank robberies. I do not accept defence counsel’s submission that an appropriate sentence on the current charge would be from 18 months to two years. In my view, that is not within the range for this offence. I note that Mr. Grant was sentenced in 2002 to four years and seven months for two bank robberies and to two years less a day for a bank robbery in 1995. He cannot expect to receive a lesser sentence in the circumstances now before the court. On the contrary, in my opinion the likely range is six to eight years, if not more.[^1]

[17] I recognize that Mr. Grant is presumed innocent of the offence with which he is charged. However, when considering the time he has spent in custody and comparing it to the length of any sentence he might receive if convicted, it is relevant to take into account the strength of the Crown’s case.[^2] I consider the Crown’s case to be overwhelming. That does not mean there is no possible defence. However, the case against Mr. Grant is extremely strong.

[18] The robber in this case approached a bank teller with a note stating that he had a gun and demanding cash. The teller provided a bundle of cash, but with a dye pack hidden within it. There is video footage of the robbery as it was occurring and of the robber leaving the scene and travelling along various streets immediately afterwards. The dye pack exploded during this route and the robber can be seen at various locations trailing a plume of coloured smoke behind him. Ultimately, the robber dumped his back pack and the bullet proof vest he was wearing in a trash bin. Those items were recovered. Mr. Grant’s DNA was on some of the items, including the backpack itself and a pair of gloves inside the backpack. Further, even though the robber was wearing a baseball cap and glasses, there are good likenesses of him captured on film, which bear a striking resemblance to Mr. Grant. Finally, the robber had a distinctive tattoo on his right forearm, in exactly the same place as Mr. Grant has a matching tattoo. This is a powerful Crown case. In these circumstances, and balancing these factors, I conclude that Mr. Grant’s detention remains necessary on the secondary grounds.

[19] Defence counsel argued that I should take into account the fact that the scheduled trial date might need to be moved. I am specifically not considering this possibility at this juncture. As an individual in custody, Mr. Grant would be given some priority in trial scheduling. If the trial date does get bumped, and depending on the reasons for it how long the adjournment might be, the defence may consider whether to bring a further application. For now, I am assuming the trial date will be met.

Tertiary Grounds

[20] The Crown did not specifically address the tertiary ground and I therefore will not deal with that issue in any detail. I have found Mr. Grant’s detention to be justified on the secondary ground. However, I would have come to the same conclusion on the tertiary ground and in that regard agree with the reasons given by the Justice of the Peace.

Date: September 29, 2021

[^1]: R. v. Gwyn, 2013 BCCA 51; R. v. Gill 2004 O.J. No. 3368; R. v. Slater, 2010 ONCA 376. [^2]: R. v. G.P., 2020 ONSC 3240 at para. 30.