COURT FILE NO.: CR-21-5069-BR
DATE: 2021-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CHRISTOPHER BOGLIS
Applicant
Megan A. Cleland, for the Respondent
Patrick J. Ducharme, for the Applicant
HEARD: February 3, 2021.
tHOMAS, RSJ.:
[1] This is a s. 520 bail review. The Applicant is charged jointly with Abbas Ibrahim with the following eight offences. Both were arrested in Windsor on January 8, 2021.
Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act [the “CDSA”];
Possession of oxycodone for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
Unauthorized possession of restricted firearm, contrary to s. 91(1) of the Code;
Unauthorized possession of a prohibited device (magazine), contrary to s. 91(2) of the Code;
Unsafe storage of a firearm, contrary to s. 86(2) of the Code;
Unauthorized possession of firearm in a motor vehicle, contrary to s. 94(1) of the Code;
Possession of a prohibited or restricted firearm with ammunition, contrary to s. 95(1) of the Code, and;
Possession of weapon obtained by commission of offence, contrary to s. 96(1) of the Code.
[2] The Applicant was denied release by Justice of the Peace Neilson on January 10, 2021. The Justice of the Peace was satisfied that the bail plan presented would allow for release on the primary and secondary grounds but detained on the tertiary ground. The Applicant continues to be in a reverse onus position because of the charges he faces.
[3] Applicant’s counsel maintains that the Justice of the Peace erred in law by ignoring the principle of restraint codified in s. 493.1 of the Criminal Code. It is the position of the Applicant that the bail plan presented, considering his lack of criminal record, should have allowed for his release and satisfied any concerns about maintaining public confidence in the administration of justice, despite the seriousness of the charges, the strength of the Crown case, and the presence of a loaded handgun.
[4] Further, counsel for the Applicant has presented an amended plan for release that adds the Applicant’s mother Chrisoula Boglis as a residential surety, pledging $20,000 together with the proffered deposit of $5,000 cash. In addition, a security system has been professionally installed at Mrs. Boglis’s home which will alert both sureties if the Applicant approaches a doorway.
[5] The Respondent Crown maintains there was no error of law in the reasoning of the Justice of the Peace and that even if I were to find that a material change in circumstance has been made out the tertiary ground continues to demand detention.
The Charges
[6] I recognize that the Applicant is presumed innocent of all charges and that we are very early in the progress of this prosecution. I recognize as well that I am relying upon summary documents prepared by investigators in understanding the circumstances of the offences charged.
[7] The Applicant’s co-accused, Ibrahim, had been previously charged with drug related offences in April, 2020 and was at that time released. The police continued to keep Ibrahim under surveillance. He was not to attend Essex County. It was police information that Ibrahim was trafficking drugs with the Applicant Boglis.
[8] On January 8, 2021, both Ibrahim and Boglis travelled from Toronto to Windsor in a vehicle rented by the Applicant Boglis. Between 11:55 a.m. and 2:55 p.m., the surveillance officers observed a number of contacts between the rented vehicle with the co-accused and unknown individuals. The officers’ belief was that those contacts were consistent with individual drug transactions.
[9] The rented vehicle, with the Applicant driving, was stopped at 7:45 p.m. and both the Applicant and Ibrahim were arrested. A search of the vehicle produced 56.7 grams of cocaine, 539.5 Oxycontin tablets, 77.8 grams of Phenacetin (suggested to be a cutting agent), five cell phones, $375 in cash, a 9 mm Glock 17 handgun with a 24 round capacity which had contained a round in the chamber and 23 in the magazine. The firearm was a prohibited weapon based on its over-capacity. It was reported stolen from York Region.
The Bail Hearing
[10] At the January 20, 2021 bail hearing, counsel for the Applicant proposed the Applicant’s sister, Niki Savvidis, as a surety. Ms. Savvidis owned her own house and a business where she earned $75,000 per year. She was a substantial surety. At the time, however, and despite the fact that it was proposed that the Applicant would reside with his mother, she had not been notified of his arrest. Ms. Savvidis was apparently concerned about upsetting her mother.
[11] In her reasons for detention, the Justice of the Peace said the following:
So, all of the factors have to be evaluated by the tertiary grounds are satisfied. [sic] [AUDIO CUT OUT] That does not mean that detention is the only option. It has to be balanced with the plan that’s been put to the court. In this case, the plan involves your sister and your mother supervising as well as your brother-in-law, but I’m concerned with the fact that despite being in regular contact with you they seem totally unaware of the activities that you found yourself involved in and that finds you in custody for here in Windsor. I’m concerned as well that, as I believe Ms. Cleland pointed out, by the fact that they don’t even – that your mother hasn’t been informed of what’s going on. There’s no way to know how she will react to the plan that has been put in place that seems to rely a great deal on her cooperation, and I believe that when balancing the four factors to be considered on the tertiary ground, I’d have concerns with that plan.
Analysis
[12] I find no error in the reasoning of the Justice of the Peace on the tertiary ground. This is, on its face, recognizing the early stages of the prosecution, a strong Crown case. It involves the use of a firearm. The charges are serious, bringing with them the potential of a significant penitentiary sentence. On the plan presented on January 20, 2021, detention was entirely appropriate.
[13] At this bail review, I heard the oral evidence of Niki Savvidis, the Applicant Christopher Boglis and, as well, I heard the evidence of the Applicant’s mother, Chrisoula Boglis. The additional pieces of the new release plan amount to a material change in circumstances. That new plan sees Chrisoula Boglis pledging $20,000 and depositing $5,000. There is, as well, the installation of a security system which will provide an alert to the sureties as well as Ms. Savvidis’ husband if the Applicant attempts to leave the home.
[14] The evidence of the witnesses and the content of the affidavits filed support the fact that both sureties are persons of significant financial means. More importantly, I am content that they are committed to the strict supervision of the Applicant and that they will meet their obligations to the administration of justice. They are pledging large sums of money and I believe they understand that if the Applicant cannot comply with very strict terms he must be back in jail awaiting trial.
[15] Crown counsel has brought to my attention the decisions of R. v. Whervin, [2006] O.J. No. 443 (S.C.J) and R. v. Bala, [2006] O.J. No. 5387 (S.C.J.).
[16] In Whervin, Justice Hill was confronted with a bail application for a 20 year old with no prior record. Whervin possessed marijuana, crack cocaine and a loaded 9 mm handgun. Justice Hill detained on the secondary and tertiary ground.
[17] In Bala, the accused was 20 years old with no record. He was arrested with 2 kilograms of cocaine, 482 grams of marijuana and 1,000 ecstasy pills. Located with the drugs was a loaded handgun with a high-capacity clip. The accused was searched, and another firearm was found on his person along with a further quantity of cocaine. Justice Trotter detained Baba on the tertiary ground.
[18] Despite the strength of the above precedents, I note differences. The Applicant here did not have the drugs or the gun on his person. There has never been a secondary ground concern, and that the focus of police attention had been on the co-accused, Ibrahim, not Boglis.
[19] Mr. Boglis provided evidence here about a historic drug problem for which he has had residential treatment. He has been employed as an electrician’s apprentice until he was laid off a year ago. He has managed to live his 31 years in the home of his parents in Scarborough without acquiring a criminal record. I have already provided my impression of his mother and sister and their suitability as sureties.
[20] I add a further consideration. Neither of the cases I noted above were decided in the context of a global pandemic. While I have no evidence of specific health concerns related to the Applicant, I accept the comments of Copeland J. in R. v. J.S., 2020 ONSC 1710: “In my view, the greatly elevated risk posed to detained inmates from the Corona Virus, as compared to being at home on house arrest, is a factor that must be considered in assessing the tertiary ground.” (J.S., para. 18).
[21] Considering the concerns posed by the potential of COVID infections in closed correctional facilities, along with the plan proposed, I am content that detention is unnecessary to maintain public confidence in the administration of justice.
[22] The Applicant will be released on a personal recognizance with two sureties, each pledging $20,000 and with the deposit of $5,000 cash. Mr. Boglis will be bound by strict house arrest terms to live with his mother at 67 Morbank Drive in Scarborough, and to only leave the residence if with one of his sureties. The balance of his strict release terms are as endorsed on his s. 520 review application.
Regional Senior Justice B. G. Thomas
Released: February 4, 2021.
COURT FILE NO.: CR-21-5069-BR
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER BOGLIS
REASONS FOR JUDGMENT
Thomas, RSJ.
Released: February 4, 2021.