BRACEBRIDGE COURT FILE NO.: CR-21-00000001-00BR
DATE: 20210203
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JEFFREY XAVIER
COUNSEL: K. Miles, for the Crown S. Marcade, for the Applicant
HEARD: January 18, 2021
RULING ON SECTIONS 520 AND 525 REVIEW
CASULLO J.:
When individuals are charged with a crime, they are presumed innocent and have the right not to be denied reasonable bail without just cause.
R. v. Zora, 2020 SCC 14, at para. 1.
Overview
[1] Jeremy Xavier makes application for review of the detention order of Justice of the Peace McLean on January 7, 2020 who, after a contested reverse onus hearing, detained Mr. Xavier on the primary, secondary and tertiary grounds. In support of his s. 520 application Mr. Xavier advances material changes in circumstances, as well as errors in law.
[2] Mr. Xavier also makes application for a s. 525 detention review. There has been no ninety day review, and the passage of time has had a material impact on the appropriateness of his continued detention.
[3] I have confined my analysis to a s. 525 review. For the reasons that follow, I conclude that Mr. Xavier is releasable.
Charges
[4] Mr. Xavier faces a number of offences before two separate jurisdictions:
a) In Huntsville, from March 2019 to November 2019[^1]: i) Possession (cocaine); ii) Possession for the purposes of trafficking (cocaine, methamphetamine); iii) Possession of proceeds of crime; iv) Participation in a criminal organization; and v) Fail to appear.
b) In Parry Sound: i) Fail to comply with breath demand; ii) Fail to comply with undertaking; iii) possession (methamphetamine); iv) fail to attend court.
[5] On November 7, 2019 Mr. Xavier was advised by police that an arrest warrant was issued with respect to charges arising out of Project Shoreham. He agreed to meet with police, but he never did. A further warrant was issued when Mr. Xavier failed to attend court on November 13, 2019. Mr. Xavier was ultimately arrested on November 31, 2019 during a traffic stop.
[6] The charges in respect of Project Shoreham have not yet been subject a preliminary hearing. Crown explained that this matter has been complicated, given there are multiple co-accused, but a preliminary hearing has been scheduled for July 5, 2021. The status of the remaining charges is unclear.
Criminal Record
[7] Mr. Xavier is 47 years old. He has no criminal record apart from an over 80 conviction from 2016.
Nature of a 525 Review
[8] The Supreme Court of Canada clarified the nature of a review hearing under s. 525 of the Code in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at paragraph 63:
In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not — justified.
[9] Under s. 525, it is the jailer’s duty to apply for a review hearing immediately on the expiration of 30 days for summary offences, or 90 days for indictable offences. The burden is not on the accused, which is important where, as here, the accused is unrepresented. Mr. Xavier did not retain counsel until July 2020.
[10] The court in Myers held that “all participants in the criminal justice system bear a fundamental responsibility” for ensuring accused persons are aware of, and understand the purpose behind, a s. 525 hearing.
[11] By my calculation, the jailer is 295 days late in bringing Mr. Xavier’s application for review.
[12] The overarching question on this s. 525 hearing is whether Mr. Xavier’s continued detention is justified under the three 515(10) grounds: Myers, at para. 63.
[13] As set out in Myers, the reviewing judge on a s. 525 application may consider: any new evidence; any change in circumstances; the impact of the passage of time and any unreasonable delay on the proportionality of the decision; and the rationale behind the original detention order.
[14] In fact, the Supreme Court in Myers specifically addressed the potentially damaging effects of the passage of time spent in pre-trial custody:
In determining whether the detention remains justified under s. 515(10), the judge should also consider whether the time that has already elapsed has had – or the anticipated passage of time will have – an impact on the appropriateness or proportionality of the detention. In particular, it is necessary to be sensitive to whether the continued detention of the accused person could erode public confidence in the administration of justice.
R. v. Myers, at para. 50 (citations omitted)
[15] In terms of new evidence, Mr. Xavier first points to the COVID-19 pandemic, and the increased risk of contracting the virus in an institutional setting.
[16] The second piece of new evidence is Mr. Xavier’s acceptance into the Salvation Army’s Bail Verification and Supervision Program (“SAP”). The SAP provides supervision on behalf of the court when a person has been charged with an offence. The program’s brochure states that the formal plan of supervision includes:
- Regular reporting schedules;
- Employment or education plans;
- Notification of court and trial dates;
- Liaison with community resources; and
- Referral to other social agencies or programs as required and approved.
[17] The program continues until a final disposition of the charges, or an accused violates the release conditions.
[18] The SAP was not offered at the original bail hearing as an aide to release, as at that juncture the SAP had declined Mr. Xavier as a candidate. His current approval constitutes a material change in circumstances.
The Show Cause Hearing
[19] I turn now to the hearing below. I will set out the JP’s findings concerning the proposed sureties, and next review each ground under which Mr. Xavier was denied bail. For each ground, I will provide my rationale as to why Mr. Xavier’s detention is no longer necessary.
The Sureties
[20] Mr. Xavier proposed release on house arrest with two sureties, Ms. Michelle MacCormack and her mother, Mrs. Eunice MacCormack. The MacCormacks live in separate residences on the same property. Mr. Xavier would have lived with Ms. MacCormack; Mrs. MacCormack, the secondary surety, was prepared to pledge $5,000.
[21] The JP found both sureties to be credible. While Ms. MacCormack did not appear to have a lengthy or in-depth relationship with Mr. Xavier, the JP was satisfied she would report Mr. Xavier if he breached his conditions. The JP also found Mrs. MacCormack to be a very caring individual.
[22] However, the JP found it unconscionable that Ms. MacCormack had asked her mother to help out, particularly given that Mrs. MacCormack had only met Mr. Xavier once or twice. Ultimately, the JP found neither surety would have sufficient authority over Mr. Xavier to control and supervise him in the community.
Primary Grounds
[23] The JP detained on the primary ground, concerned that in light of Mr. Xavier’s two s. 145 charges, he would not present at court when required. She also found that Mr. Xavier actively had evaded police for six weeks after he was told about the arrest warrant.
[24] Crown advised the JP that Mr. Xavier had attended numerous court appearances between April – October 2019.
[25] Defence counsel clarified for this court that the dates Mr. Xavier failed to appear were one day apart (November 13, 2019 and November 14, 2019), and in different jurisdictions.
[26] Six months after Mr. Xavier was denied bail, the Supreme Court of Canada released R. v. Zora, in which it builds on its prior seminal decisions concerning bail in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 and R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509.
[27] On behalf of a unanimous court, Justice Martin underscored the need for review and restraint across the continuum of each stage of bail stage:
All those involved in the bail system are to be guided by the principles of restraint and review when imposing or enforcing bail conditions. The principal of restraint requires any bail conditions to be clearly articulated, minimal in number, necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statuary grounds for detention in s. 515(10).
R. v. Zora, 2020 SCC 14, 388 C.C.C. (3d) 1, at para. 6
[28] Justice Martin addressed s. 145 offences against the backdrop of bail hearings:
Previous convictions under s. 145 may also inform bail hearings for any future offences (see 518(1)(c)(iii)). Convictions for failure to comply under s. 145(3) are treated by Parliament and the courts as often indicating that an accused has a history or intentionally disobeying court orders, and therefore is more likely to breach their court orders again. A failure to comply conviction can result in assumptions that an accused has a “lack of respect … for court orders and for the law”, which may affect future sentencing and release decisions.
R. v. Zora, at para. 56.
[29] What the Supreme Court cautioned against in Zora is precisely what occurred in this case. On the basis of two outstanding s. 145 charges, Mr. Xavier was deemed not trustworthy enough to abide by future orders to appear.
Mr. Xavier’s continued detention is not necessary to ensure his attendance in court.
Secondary Grounds
[30] When considering the secondary grounds, the JP acknowledged Mr. Xavier’s relatively spotless criminal record. However, the nature of the outstanding charges were similar to the charges before the JP, and in her view this demonstrated a pattern of behaviour. This pattern of behaviour in turn pointed to a substantial likelihood Mr. Xavier would re-offend, potentially causing grave danger to the public.
[31] The limits within which detention on the secondary ground may be justified were described by Chief Justice Lamer in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 (at para. 39) as follows:
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 only denied 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 merely be convenient or advantageous.
[32] The mere fact that Mr. Xavier faces a round of drug-based offences does not equate to a substantial likelihood he will re-offend if released. He may reoffend. He may not. What we do know is he lived the first forty-six years of his life without criminal charges. But he fell on hard times. He lost his job when he injured his back. He developed a drug addition. He became a couch surfer …the conditions were ripe for his involvement in the drug subculture.
[33] Mr. Xavier’s charges span a short, seven-month period. Perhaps his year in jail has curtailed his downward spiral. His drug addiction appears to be under control. Mr. Xavier advised the court that he is not the same man he was, and that a lot has changed. He should be given the opportunity to prove this.
[34] As Justice Dawe observed in R. v. Tulley, 2020 ONSC 2762, at para. 23, “the relevant question is not whether secondary ground concerns exist, but whether they can be adequately addressed by the proper release plan, having regard to all the relevant factors.”
[35] Mr. Xavier will not be released without conditions. He has the support of the SAP, which has committed to working with him while he is on bail. He will be required to check in weekly, via phone during the COVID lockdown, and in person once the lockdown is lifted. He is willing to attend any recommended programs.
[36] Mr. Xavier has also found a place to stay – Mrs. MacCormack is willing to let Mr. Xavier live in her home. Mr. Xavier would be bound by a nightly curfew, as well as numerous non-contact orders.
[37] I recognize that Mr. Xavier’s new plan does not propose a surety. However, I am satisfied a surety is not required. Justice Di Luca, in R. v. Tunney, 2018 ONSC 961, [2018] O.J. No. 767, expressed concern over what he described as an overreliance on surety releases:
In Ontario, one component of this culture of risk aversion is an overreliance on sureties. The over-reliance on sureties has been recognized at the highest levels of court. In Canada (Minister of Justice) v. Mirza, 2009 ONCA 732, a five-member panel of the Court of Appeal noted:
There may now be an over reliance on sureties. Thus, see the comments of Professor Friedland in “Criminal Justice in Canada Revisited” (2004), 48 C.L.Q. 419 at 433-34:
The present system is, however, not working well in Ontario. The pendulum has swung too far in the direction of requiring sureties rather than using release on one’s own recognizance. In England, sureties are required in only a small fraction of the cases. About two thirds of those who appear for a bail hearing in Toronto today are required to find sureties and only about half of this number are actually released. The other half, it appears, could not find acceptable sureties. Less than 10% held for a bail hearing are released on their own undertaking or recognizance.
What appears to be happening is that the requirement to find sureties has taken the place of cash bail as a method of holding accused persons in custody. The majority of persons who are caught up in the criminal justice system, many of whom are not from the community where they are arrested, have difficulty finding sureties.
R. v. Tunney, at paras. 30 – 31.
[38] Similarly, in Antic, at para. 65, Wagner J., as he then was, noted that the Criminal Code bail provisions were not being uniformly applied across the country. In support of this proposition, he noted the overuse of sureties in Ontario and the Yukon.
[39] It would be unfair to Mr. Xavier if he were required to spend a lengthy time in pre-trial custody for the charged offences because he does not have the familial or social network to support him. Zora speaks to this issue:
A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations. Those living in poverty or with additions often struggle to meet conditions by which they cannot reasonably abide. (citations omitted)
Zora, at para. 79
[40] Any secondary ground concerns will be adequately addressed by the proposed release plan.
Tertiary Ground
[41] The court is directed by s. 515(10)(c) of the Criminal Code to consider the following factors when assessing whether continued detention is justified on the tertiary ground:
(i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[42] It appears the Crown has a relatively strong case. There is direct evidence of the Project Shoreham offences against Mr. Xavier. I agree these are serious offences. No violence or guns were involved.
[43] If convicted, Mr. Xavier could face a long period of imprisonment. The Crown suggests the range could be 4 to 5 years. How does this compare to the potential passage of time if Mr. Xavier remains in pre-trial custody? Given the harsh reality of COVID delays, it is hard to say with precision when the Project Shoreham trial will take place. As noted earlier, the preliminary enquiry is scheduled for July 2021, one and a half years after he was arrested.
[44] The trial will be heard by a jury. Again, in light of the seemingly endless spread of COVID-19, it is reasonable to assume that jury trials will not take place until 2022 at the earliest. And once jury trials do recommence, Project Shoreham will have to get in line behind all previously scheduled jury trials which have been delayed due to COVID.
[45] Mr. Xavier will no doubt receive the usual Summers credit of 1.5 days for every day spent in pre-trial custody. There is also strong the potential for enhanced credit given how the pandemic has altered the conditions of confinement. As the Court of Appeal held in Duncan, “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1) of the Code”: R. v. Duncan, 2016 ONCA 754, at para. 6.
[46] Mr. Xavier’s affidavit attests to the challenging conditions he has faced in custody, including regular lockdowns due to staff shortages, COVID-19 restrictions mandating that inmates remain in their cells, and limited access to programs. During a flare up of his back injury, Mr. Xavier spent six weeks in segregation because there were no suitable beds in general population.
[47] It is entirely possible that, if Mr. Xavier is not released, his pre-trial custody could outstrip his sentence.
[48] St-Cloud reminds us that when examining the tertiary ground, we are to consider the perception of reasonable members of the community who are informed about the philosophy behind the bail provisions of the Code, Charter values, and the actual circumstances of the case (see paras. 75-80).
[49] Mr. Xavier is a first-time offender who has never before been incarcerated. He has been denied his right to timely detention reviews. He has languished in pre-trial custody for over a year, during a pandemic, and facing harsh conditions. There is no trial date in sight. In my view, an informed member of society would only lose confidence in the justice system if Mr. Xavier were not released.
Disposition
[50] For the foregoing reasons, the application is granted, and Mr. Xavier is admitted to bail with the following terms conditions:
a) He is to reside at 146 East Waseosa Lake Road, Huntsville, ON, P1H 2J4; b) He is to be under a curfew from 6:00 p.m. to 8:00 a.m.; c) He shall report to the Salvation Army Simcoe County and District of Muskoka (SAP) at 620 Muskoka Road North, Gravenhurst, ON within 24 hours of being released, and thereafter as directed; d) He shall be under the direction and supervision of the SAP and be amendable to its rules and regulations; e) He shall advise his SAP supervisor if he moves from 146 East Waseosa Lake Road; f) He shall attend any counselling programs recommended by the SAP; g) He shall remain in the Province of Ontario; h) He shall not be in the vicinity of, or enter onto the following properties:
- Silver Sands Tent and Trailer Park, Huntsville;
- Highland Court Motel, Huntsville;
- Residence of James Downs, in Burks Falls; and
- 23 Boundary Road, Novar;
i) He shall not communicate in any manner with the following individuals:
- Katy Austin;
- Ronnie Pointer;
- Kim Jackson;
- Brent Jackson;
- Richard Perneroski;
- Taylor Godfrey;
- Spencer Wong;
- Garry Laird;
- Garth Davis;
- Crystal Coulson;
- Cody Kinnunen;
- Latiatia Swan; and
- Kyle Cort.
j) He shall not possess any weapons as defined in the Criminal Code; k) He shall carry his bail recognizance document with him at all times while out of the residence; l) He shall not be in possession of any illegal drugs; and m) He shall attend court as required.
[51] I can be contacted if there are requests by either party with respect to adding or altering the proposed bail conditions.
Casullo J.
Released: February 3, 2021
[^1]: Certain Huntsville charges stem from an undercover investigation known as “Project Shoreham”.