Superior Court of Justice - Ontario

Court File No.: 20-43-BR

Date: 2021-02-02

Re: R. v. Moir

Before: Justice R. Raikes

Counsel: Oliver Fitzgerald - Counsel, for the Crown Lisa Gunn - Counsel, for the Defendant

Heard: January 11, 2021

Endorsement

[1] The Crown (federal and provincial) apply pursuant to s. 521 of the Criminal Code to review the judicial interim release order made by Justice of the Peace F. Leddy dated December 21, 2020. The defendant was released, inter alia, on the following conditions:

• He must reside with his surety at her residence in London, Ontario and adhere to the routine and discipline of the household.
• He must remain in that residence 24 hours daily except for personal medical emergencies or when he is in the company of his surety.
• He is not to communicate directly or indirectly by any means with his co-accused, Hannah Williamson, or with Sonny Cloutier.
• He is not to possess any weapon as defined by the Criminal Code.
• He cannot possess any cell phone, pager or personal digital assistant.
• He can use his surety’s telephone but only in her presence.
• He must participate and abide by the rules and regulations of the Electronic Supervision Program for the purpose of monitoring his house arrest.
• He is on Electronic Supervision for the entire length of his bail release order.
• He must answer the phone and present himself at the door of his residence to police and persons involved in ensuring compliance with the terms of his house arrest.
• He cannot change his address without prior permission of the court.

The defendant agreed to comply with the conditions imposed and did so on the record.

[2] The defendant’s surety is his grandmother, Jane Moir. She is 81 years old and resides in a one-bedroom apartment in London. Her unit is on the third floor. The building has an electronically secured entrance. Ms. Moir is retired and has a limited fixed income. She pledged to pay $5,000. The defendant also promised to pay $10,000 if he fails to comply with the conditions of his release.

[3] The Crown asserts that:

1. The Justice of the Peace misapprehended the evidence of the defendant’s criminal record, mischaracterized times in custody as “gaps” in his criminal record and placed insufficient weight on his criminal record and the pending charges.
2. The Justice of the Peace erred in law by failing to consider the lack of evidence that the defendant would abide by any of the conditions, particularly given his prior convictions for breach of recognizance and the several serious charges pending.
3. The Justice of the Peace erred in law in that he failed to consider the insufficiency of the plan of release to meet the concerns engaged on the secondary ground, notably the inability of the surety to properly supervise the defendant.
4. The Justice of the Peace erred by overemphasizing the strength of the surety to meet concerns on the tertiary ground.
5. The decision made was “clearly inappropriate”.

The Crown asks that the interim release order be vacated and the defendant be detained in custody pending trial.

[4] In oral submissions, Crown counsel submitted that while he correctly stated the applicable legal principles, Justice of the Peace Leddy failed to do a risk analysis or engage in any weighing of relevant factors under the tertiary ground. He simply accepted that the surety and electronic monitor were sufficient without due consideration of the defendant’s past criminal record, his breach of earlier orders, and the charges before the court. Without a risk analysis and weighing of factors, the order must be set aside as the release is clearly inappropriate.

[5] Defence counsel submits that Justice of the Peace Leddy was alive to the issues raised by the Crown, considered them, and correctly applied the principles that govern judicial interim release. A risk analysis was done. He appropriately considered the strength of the release plan in the circumstances of this case and this defendant. His decision is well-reasoned and is entitled to deference. The application should be dismissed.

[6] The bail hearing was a reverse onus situation because: 1) there were allegations that the defendant breached existing release orders when he committed the offences; 2) the charges pending included trafficking; and 3) the charges included weapons offences while subject to a prohibition order.

[7] Justice of the Peace Leddy heard the evidence and submissions and reserved his decision roughly two weeks.

Standard of Review

[8] In R. v. St. Cloud, 2015 SCC 27, at para. 121, the Supreme Court of Canada clarified the analytical framework on an application for bail review. It is a two-step process. It is not an open-ended review. The reviewing court does not have the power to interfere with a detention or release order merely because the reviewing judge would have arrived at a different conclusion. The onus rests on the applicant to establish any of following three grounds:

1. There was an error in law;
2. The decision was clearly inappropriate; or
3. There is new evidence that shows a material and relevant change in circumstances.

[9] If the initial step is satisfied, then, and only then, the reviewing judge may decide the issue of interim release/detention as if he or she was the initial decision maker.

[10] A decision may be “clearly inappropriate” if the Justice gave excessive weight to one relevant factor or insufficient weight to another. However, the reviewing judge does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently: St. Cloud, at para. 121.

Did the Justice of the Peace err in law, or was the decision “clearly inappropriate”?

[11] I turn to the positions advanced by the Crown starting with the submission that the Justice of the Peace misapprehended the evidence of the defendant’s criminal record, mischaracterized times in custody as “gaps” in his criminal record, and placed insufficient weight on his criminal record and the pending charges.

Criminal Record

[12] The defendant is 32 years old. His criminal record starts at age 25. The defendant’s criminal record was part of the materials filed at the hearing before Justice of the Peace Leddy.

[13] In 2013, he was convicted of failure to comply with his recognizance for which he was fined $150. In May 2018, he was convicted of two counts of possession for the purpose of trafficking and one count of resisting a police officer. He received a suspended sentence and 12 months probation. In September 2019, he was convicted of two counts of possession for the purpose of trafficking and one count of failure to comply with his recognizance. He was sentenced to two years probation on one of the drug charges. On the other two charges, he was sentenced to one day and two years probation after receiving credit for the equivalent of 543 days in pre-sentence custody.

[14] Justice of the Peace Leddy reviewed his criminal record and stated:

…So no criminal record is enviable, and these convictions are for serious offences, especially the trafficking ones. However, his record is not long in a relative sense. There are periods of time in his adult life when he has not been engaged in criminal activity.

[15] The only reference in his decision to a “gap” is in respect of the period between 2013 and 2018. There was no evidence of other charges or time in custody in that period. There was no evidence that he was engaged in criminal activity apart from that indicated by his record and the charges before the court. It seems to me that: 1) Justice of the Peace Leddy accurately summarized the defendant’s criminal record; 2) he fairly characterized the period between 2013 and 2018 as a “gap”; and 3) there were periods in his adult life where he was not engaged in criminal activity.

[16] I disagree that the Justice of Peace misapprehended the evidence of the defendant’s criminal record and mischaracterized times in custody as “gaps” in his criminal record as asserted by the Crown.

Pending Charges

[17] At the time of the offences, there were three informations filed against the defendant. As at the date of his decision, the charges on one of the informations had been withdrawn.

[18] In his decision, Justice of the Peace Leddy correctly summarized the charges pending on each information. He recognized the seriousness of the charges especially those related to drugs and firearms/weapons. He wrote:

It is also clear from the evidence that there was a sophisticated drug trafficking operation that was going on in that apartment. Several firearms, copious amounts of drugs, drug paraphernalia, a fortified door and security cameras, just to mention a few aspects. ...

The latest charges that have kept him in custody are really the main issue under consideration. Mr. Moir is seen leaving the building. There is evidence in the unit that connects him to the unit. The drug trafficking evidence found in the unit is overwhelming. Mr. Moir has a record with convictions for trafficking. He is found with substantial amount of cash on his person.

[19] It is evident that Justice of the Peace Leddy carefully reviewed the material filed. He indicated that the Crown appeared to have a strong case on the basis of the evidence filed. He also quite properly recognized that the defendant was still presumed to be innocent, and apparently strong cases may be significantly less so at trial.

[20] Justice of the Peace Leddy was also aware that the charges against Mr. Moir included breach of earlier conditions of release and the terms of his probation. His decision reflects that he took into account that Mr. Moir was subject to release terms and probation terms when the July 2, 2020 offences allegedly occurred and he had prior convictions for failure to adhere to court orders. He wrote:

…These allegations paint a picture of an individual who has not demonstrated respect for release orders. There is also a criminal record where there are breaches of court orders.

[21] The submission by Crown counsel that the Justice of the Peace failed to accord his criminal record and the serious charges pending sufficient weight will be addressed below when I consider whether the decision was “clearly inappropriate”. I find nothing in his decision to support the Crown’s contention that he misapprehended the defendant’s criminal record or the charges pending.

Failure to Consider Whether Defendant Would Abide by Terms

[22] Crown counsel submits that the Justice of the Peace made no inquiry and had no evidence that the defendant would comply with the terms of any release. He relies on the decision of Tausendfreund J. in R. v. Sleeper, 2020 ONSC 100.

[23] In Sleeper, at para. 15, Justice Tausendfreund held that given the accused’s failure to adhere to two previous release orders, there should have been some consideration given by the Justice of the Peace as to whether the defendant could be trusted with any contemplated terms. He wrote:

…In short, simply replacing sureties in and of itself and absent additional terms, does not raise the level of confidence of the plan that expectations are likely to evolve more positively for the accused than it had in the past. Some analysis in that regard would be expected, in the face of Sleeper’s track record. That, however, did not occur.

[24] I do not read Justice Tausendfreund to say that there must be evidence from the defendant that he will follow the terms imposed in a release order. I am unaware of any authority that mandates such inquiry. A defendant is required to adhere to release orders made and, in any event, Mr. Moir indicated on the record after the terms were imposed that he would do so.

[25] Further, I note that the terms imposed by the Justice of the Peace in this case are far more onerous than those attached to Mr. Moir’s earlier releases unlike in Sleeper. Justice of the Peace Leddy considered whether the terms imposed would mitigate the risk that he would re-offend (the secondary grounds). He recognized that there is no absolute guarantee of compliance, but found that the electronic monitoring bracelet, surety with whom he had a close relationship, together with house arrest were enough.

[26] I do not agree that Justice of the Peace Leddy failed to consider whether the defendant would abide by any of the conditions, particularly given his prior convictions for breach of recognizance and the several serious charges pending. He specifically addressed his mind to what terms would be sufficient to meet the concerns raised by the secondary and tertiary grounds. He did not require evidence from the defendant that he would comply.

Failure to Consider Inability of Surety to Supervise

[27] The argument by Crown counsel arises in the context of s. 515(10)(b) – the secondary ground. Where a defendant has a criminal record for offences that are similar to those with which he is charged, secondary ground concerns under s. 515(10)(b) are amplified: R. v. Ishmael, 2019 ONSC 596, at paras. 54-55.

[28] In R. v. Morales, 1992 CanLII 53 (SCC), [1992] S.C.J. No. 98 (SCC), at para. 44, Lamer C.J. wrote with respect to the test for the secondary ground:

…Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied 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 safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would be merely convenient or advantageous.

[29] In his Reasons at p. 13, Justice of the Peace Leddy wrote:

The question before me is, is detention necessary, because I do agree that there is a likelihood rising to a level of substantial likelihood that there is a risk to public safety, given the allegations that are before me. The question is, is detention necessary because the identified danger cannot be prevented or reduced to an acceptable level by the conditions of a release plan.

[30] Thus, Justice of the Peace Leddy came to the conclusion that there was a substantial likelihood that the defendant would re-offend after reviewing his criminal record, the informations pending, the synopses of the offences alleged to have been committed and his assessment that the Crown’s case appeared to be a strong one. At p. 16 of his Reasons, he found that Mr. Moir “is clearly in need of supervision, and any release will depend on the ability of the surety to supervise him”.

[31] At pp. 16-20 of his Reasons, Justice of the Peace Leddy reviewed the evidence of the proposed surety. He considered, inter alia, her health, living arrangements, past and current relationship with the defendant, her knowledge of his criminal record and the charges with which he was charged, her understanding of what was required of her as a surety, and her willingness to do so. At p. 20, he wrote:

The allegations regarding July in the apartment with the sophistication of the weaponry, the paraphernalia and the security cameras, none of that would be possible under the same roof of the grandmother. She is also aware she can revoke her surety at anytime. Mrs. Moir presented as a person who is with it and understands what is at stake here. I am also convinced that she can determine the suitability of any visitors that she would allow in her home.

[32] Justice Leddy clearly considered the ability of the surety to effectively supervise Mr. Moir. He properly considered whether the substantial likelihood of re-offending was mitigated by the release plan proposed. He understood the importance of the role played by the surety and considered her ability to do what was entailed in that role. He found that it was not “necessary” that the defendant be detained in custody in these circumstances.

[33] His assessment of Mrs. Moir’s willingness and ability to properly carry out her role as surety is a finding of fact that is entitled to deference. Having heard her evidence, he was best positioned to make that assessment.

[34] I disagree that the justice of the peace failed to do a risk analysis. He expressly considered whether the defendant would be able to engage in similar behaviour under house arrest with his grandmother in a small one-bedroom apartment. Clearly, the terms of his release are very restrictive and reflect the court’s concern for public safety.

Tertiary Ground – Overemphasis on Surety/Clearly Inappropriate

[35] As indicated, Crown counsel asserts that the decision made is clearly inappropriate; that in coming to his decision, Justice of the Peace Leddy failed to engage in any weighing of the relevant factors, placed undue emphasis on the strength of the surety and release plan, and failed to give greater weight to the statutory factors that favoured detention.

[36] Justice of the Peace Leddy identified and made findings in relation to each of the four enumerated factors that a court must consider under the tertiary ground in s. 515(10)(c). He concluded that:

1. The Crown’s case appeared to be “very strong”;
2. The offences alleged were “very serious”;
3. The allegations in relation to July 2, 2020 were “troubling”, and the allegation that firearms were involved was a relevant consideration; and
4. There was no question that if convicted Mr. Moir faces a lengthy term of imprisonment.

[37] In St. Cloud, Wagner J. (as he then was), rejected the proposition that if all four factors favoured detention, the defendant is automatically detained. At paras 69-70, he wrote:

[69] …The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question that justice must answer, and it must therefore guide him or her in making a determination. The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.

[70] Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in section 11(e) of the Charter: Pearson, at p. 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by section 11(d) of the Charter: Hall, at para. 13. These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.

[38] Justice of the Peace Leddy correctly noted that the list of enumerated factors is not closed. He considered the COVID pandemic and that officials at detention centers were taking significant steps to prevent prisoners from contracting and spreading the virus. No issue is taken that the pandemic was an appropriate factor to consider.

[39] At p. 24, he wrote:

The four enumerated factors and any other factors such as the pandemic must also be considered along with a release plan. Tertiary grounds require that I adopt the mindset of a reasonable and well-informed citizen. Such a citizen is informed of the Canadian Charter of Rights and Freedoms, the presumption of innocence, the right to reasonable bail. A reasonable and informed person would also know the particulars of the case and the proposed plan of release. The reasonable and well-informed person will have concern about the allegations and will also consider the house arrest with a competent surety and an extra measure of deterrence and detection of the monitoring bracelet. Such a citizen would consider the strength of the release plan as a mitigation of the risk of further criminal activity.

Hence, I am concluding on the tertiary grounds that you have met your onus and you will not be detained on the tertiary grounds.

[40] The above quoted passage cannot be read in isolation, independent of the rest of his decision. It is abundantly clear that Justice of the Peace Leddy was cognizant of the seriousness of the charges before the court and the defendant’s criminal record. He knew that Mr. Moir was alleged to have committed the July 2 offences while subject to a weapons prohibition order, a probation order and terms of releases on the earlier informations then pending. He was keenly aware of the seriousness of those offences and he assessed the strength of the Crown’s case. He did so mindful of the presumption of innocence.

[41] It is implicit in his conclusion that the release plan was sufficient to counterbalance the statutory factors that favoured detention. Although a distinct analysis under s. 515(10)(b), his earlier finding that the release plan significantly mitigated the risk of re-offending did not require reiteration. I agree that he could have explained more fully why a reasonable and well-informed citizen would find it unnecessary to detain Mr. Moir “to maintain confidence in the administration of justice”. Nevertheless, I conclude that he asked himself the right question, was guided by the correct legal principles, and considered all relevant factors in arriving at his decision. Confidence in the administration of justice may equally be undermined if an accused is denied interim release when release is justified: St. Cloud, at para. 86.

[42] As indicated earlier, it is not for me to overturn his decision merely because I may have come to a different conclusion or would have weighed the factors differently. I agree that Justice of the Peace Leddy could have concluded that Mr. Moir’s continued detention was justified on the tertiary ground. It was a close call having regard to all of the relevant factors. I do not agree that the decision made was “clearly inappropriate”. His decision is entitled to deference.

[43] For greater clarity, I am not convinced that the justice of the peace overemphasized the strength of the release plan or put too much weight on it in determining that Mr. Moir had met his onus under the tertiary ground.

[44] Having found that the Justice of the Peace committed no error of law and that his decision was not clearly inappropriate, the Crown’s application is dismissed.

Justice R. Raikes

Date: February 2, 2021