Court File and Parties
Court File No.: CR-22-0000106-00BR Date: 20220413 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Landyn Delaney, Applicant
Counsel: Jennifer Armstrong, for the Crown Christopher Tarach, for the Applicant
Heard: April 12, 2022 Before: Schabas J.
Reasons on Bail Review
[1] The applicant, Landyn Delaney, pursuant to s. 520 of the Criminal Code, seeks a review of the detention order made on March 3, 2022, by Justice of the Peace W. Agnew.
[2] A judge hearing an application under s. 520 of the Criminal Code may review a decision on judicial interim release in three situations: (1) where there is admissible new evidence which shows a material and relevant change in circumstances; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate: R. v. St-Cloud, 2015 SCC 27, [2015] 2 SCR 328 at para. 6. In this case the applicant submits that the Justice of the Peace made an error of law and relies on new evidence that was not before the court on March 3, 2022, which it is argued gives rise to a material change in circumstances justifying release.
Background
[3] The applicant, Landyn Delaney, is 20 years old. He is a Canadian citizen and resides with his father and his brother at their home in Bradford, Ontario. He has completed high school. Prior to his arrest on February 27, 2022, he was employed alongside his father at a lumber business in Maple, Ontario. He has no criminal record.
[4] He is facing 18 charges under the Criminal Code relating to possession of two loaded firearms found during an investigation of a car stopped in an unlawful manner, and a subsequent search of the vehicle for drugs. During the police investigation of the car, which was occupied by two other men, Mr. Delaney is alleged to have approached the car requesting to retrieve his bag in the back seat. A black satchel was then searched and found to contain a loaded handgun, Mr. Delaney’s driver’s licence and a key which was later determined to be the key to a safe in the trunk of the car. After obtaining a search warrant, the safe was opened and a loaded sawed-off shotgun was found in it, together with ammunition for both firearms.
[5] At least one of the co-accused, Sebastian Santagato, was also charged with drug-related offences. Mr. Santagato was released on bail on March 7, 2022. The other co-accused, Colton Morin, remains in custody. I have no other information about his circumstances.
Grounds for Detention
[6] Detention of an accused in custody pending the disposition of charges is governed by s. 515(10) of the Criminal Code which states:
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(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.
The Decision Under Review
[7] Justice of the Peace Agnew was not satisfied that the applicant’s detention was justified under what are known as the “primary” and “secondary” grounds set out in ss. 515(10)(a) and (b) of the Criminal Code. However, she found that the applicant’s detention was justified under subsection 515(10)(c), known as the “tertiary ground”, as she concluded that “a reasonable member of the public would lose confidence in the administration of justice” if he were to be released.
[8] At the hearing before the Justice of the Peace, the proposed plan of release was for the applicant to live at home, attend work with his father, and be subject to his father’s supervision 24 hours a day. His father was prepared to pledge up to $3500 as a surety which was more than his current savings of $1,000. Although Mr. Delaney’s father has a criminal record, the offences were long ago and the Justice of the Peace gave them no weight.
Did the Justice of Peace Err in Law?
[9] The applicant argues that the Justice of the Peace erred in law by misstating the test for the tertiary ground, as follows:
The next analysis on the tertiary grounds is a very different. The secondary grounds deals with public safety and the tertiary grounds deals with public confidence. Would a reasonable member of the public lose confidence in the administration of justice if you were released? [emphasis added]
[10] This, it is submitted, is inconsistent with the statement of the test in the statute, which requires consideration of “all the circumstances”, and as put by the Supreme Court of Canada in R. v. Hall, 2002 SCC 64, [2002] 3 SCR 309, at para. 41 (and restated by the Court in St-Cloud at para. 68):
At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. [Emphasis added in St-Cloud.]
[11] Further, the applicant argues that the Justice of the Peace conflated the mandated legislative considerations under ss. 515(10)(c)(i) and 515(10)(c)(iv) by considering the gravity of the offence in relation to the likely sentence, rather than comparing it to other offences in the Criminal Code. It is also submitted that the Justice of the Peace simply accepted and relied on the fact that the four factors in subsection 515(10)(c) of the Criminal Code existed, rather than weighing them together with all other circumstances, and that her reasons are inadequate to ascertain the basis for the detention order.
[12] I do not agree with these submissions. Following the passage quoted above, the Justice of the Peace discussed both the enumerated factors in ss. 515(10)(c) of the Criminal Code and other circumstances. This included further consideration of the apparent strength of the Crown’s case which she had also considered in her review of the secondary ground in noting that there were “triable issues.” Her reasons included consideration of the gravity of the offences, the circumstances in which they were alleged to have been committed, the potential for a lengthy term of imprisonment if found guilty, and that firearms were involved.
[13] The Justice of the Peace was conscious of the need to address whether, as she put it, “the administration of justice … could be undermined” if the applicant was detained. She reviewed the circumstances of the applicant himself and the plan of release and, in my view, applied the law correctly in concluding that “a reasonable member of the public would lose confidence in the administration of justice” if he were to be released.
Is There a Material Change in Circumstances?
[14] This does not end the matter, however, as in my view there has been a material change in circumstances based on new evidence that requires review.
[15] The applicant has now filed affidavits from his father and his brother, both of whom are willing to be sureties. The applicant has also sworn an affidavit that he will comply with the supervision of his sureties and a proposed plan of release that requires him to remain at home 24 hours a day, with limited exceptions, and also includes being subject to electronic monitoring by way of an ankle bracelet.
[16] The Crown submits that this is not new and was considered by the Justice of the Peace in detaining the applicant. The applicant’s brother was present at the bail hearing on March 3 and there was evidence from the applicant’s father that the brother could help out if the applicant were confined to his home. The applicant’s brother also tried to speak up at one point during the March 3 hearing to say he would make sure the applicant was educating himself at home but was told by defence counsel (who was different from counsel before me) to be quiet. The possibility of electronic monitoring was raised by the Crown in cross-examination but was not part of the plan.
[17] In particular, the Crown relies on the reasons of the Justice of the Peace who stated:
The Court is mindful that we have more than one surety that could be available should the Court feel that that is necessary. Your mother might be available to come forward, maybe your brother Christian, and counsel has indicated that if necessary, an ankle monitor would be something that could be considered. So all those things are being offered to the Court. At this time they have put forward one surety to be considered. Based on the allegations that are before the Court, as I stated earlier a surety is the correct place to start. We have a surety declaration and heard from your father Doug Delaney. [emphasis added]
[18] In my view, however, those things were not “offered to the court.” Rather, all that was before the court was the proposal of the father as surety and that he would supervise the applicant at home and at work. The proposal today is quite different, and is thoroughly set out by the applicant in his notice of application and the new evidence.
[19] In addition to the father being a surety who will pledge $1,000, which is a considerable sum for him as it is the totality of his savings, the applicant’s older brother Christian is also prepared to pledge his entire savings of $5,500 and to be a surety for the applicant.
[20] Christian Delaney has provided an affidavit that he is ordinarily employed as a personal support worker but that at the present time he is unemployed and can supervise his brother at home, 24 hours a day, 7 days a week. Should he become employed, Christian has said he is willing to reduce his work hours and adjust his life to ensure that the applicant is properly supervised. If necessary, Christian has sworn that he will remain unemployed in order to supervise his brother.
[21] The applicant is also prepared to wear an ankle bracelet to monitor his location at all times. Rather than attending work with his father, the applicant will remain at home and be subject to the supervision of his sureties and only be permitted to leave in limited circumstances and under their supervision.
[22] The admissible new evidence filed on this application, therefore, demonstrates a material and relevant change in circumstances. The plan of release is very strict and requires the applicant to remain in his residence and be under the supervision of his sureties. Although it is not specifically proposed, in light of the willingness of Christian to supervise his brother at all times, this supervision can be continuous and direct. Electronic monitoring, while it cannot directly prevent a breach of bail conditions, significantly reduces the likelihood of a breach as any unauthorized movement will quickly be detected.
[23] The applicant has also drawn my attention to the fact that one co-accused, Mr. Santagato, has been released since the March 3 hearing. Although the evidence linking the applicant to the firearms may be stronger than to Mr. Santagato, Mr. Santagato was already on a release order, was also charged with drug offences, and was the driver and occupant of the car. Parity is important to maintaining confidence in the administration of justice, and is also a change in circumstance that is relevant on this review.
[24] In light of this plan, I conclude that reasonable members of the community informed about the philosophy behind the bail provisions in the Criminal Code, the Canadian Charter of Rights and Freedoms including the rights in ss. 11(d) and 11(e), and the circumstances of the accused, would not lose confidence in the administration of justice if the accused is released.
[25] I reach this conclusion having considered, in particular, the factors in subsection 515(10)(c) of the Criminal Code. The charges in this case are very serious, especially in the context of the increasing problem of the proliferation of firearms in Toronto. The circumstances surrounding the commission of the offence, including the presence of firearms in a car, are serious, and the Crown’s case appears to be strong. If convicted, the applicant is liable to a penitentiary sentence, despite being a first offender.
[26] But I have also considered “all the circumstances”, including that the applicant has no prior criminal record, and is only 20 years old. I agree with Schreck J. that the well-established principle that youthful first offenders should only be imprisoned if absolutely necessary and for as short a term as possible also applies to bail.
[27] As Schreck J. pointed out in R. v. N.Y., 2021 ONSC 1398 at paras. 37-40, accused persons are given credit for presentence custody, often at a rate of one and a half days for every day spent in presentence custody. This presentence custody is usually in detention centres that have harsh living conditions in which there is little or no access to educational, retraining or rehabilitation programs found in penitentiaries or other institutions to which convicted persons are sent following sentencing. Delays in bringing cases to trial can mean that an accused who is denied bail may end up serving much of his or her sentence in such conditions. As Schreck J. stated in N.Y. at para. 40:
It follows from the foregoing that denying bail to a youthful first offender who is later convicted has the effect of reducing his access to rehabilitative programs which are intended to facilitate his transition to becoming a law-abiding member of society. In my view, a reasonable member of the public who is aware of the importance of rehabilitation in the sentencing of youthful first offenders would consider this to be a relevant circumstance. In some cases, absent secondary ground concerns, allowing the youthful first offender to spend the time before trial under the supervision of a supportive family may be preferable to detention. Public confidence in the administration of justice is not enhanced when sentences for youthful first offenders are served before instead of after conviction, with no access to rehabilitative programs.
[28] These concerns apply to Mr. Delaney.
[29] In addition, the proposed plan for release is very strict. The terms contemplate that Mr. Delaney’s freedom will be very restricted, almost as much as if he was incarcerated. In my view this maintains confidence in the administration of justice.
[30] Balancing all the circumstances, including the factors in ss. 515(10)(c) of the Criminal Code, and having regard to the principle of restraint referred to in St-Cloud and recently reiterated in R. v. Zora, 2020 SCC 14 at para. 83, and now codified in s. 493.1 of the Criminal Code, I am prepared to allow the application, and to vacate the order made by the Justice of the Peace. I order that the applicant be released on the following conditions:
(a) the applicant’s father, Doug Delaney, be a surety and pledge $1,000, without deposit, which may be forfeited if the applicant does not comply with this order;
(b) the applicant’s brother, Christian Delaney, be a surety and pledge $3,000, without deposit, which may be forfeited if the applicant does not comply with this order;
(c) the applicant reside at 433 Britannia Avenue, Bradford Ontario, L3Z 2C8, ("the residence") with his surety(s) and be amenable to the direct and continuous supervision of his surety(s) at all times, including being amenable to the routine and discipline of their household;
(d) the applicant remain within the residence 24 hours a day, 7 days a week, except for:
i. scheduled court appearances;
ii. meetings with his lawyer;
iii. medical emergencies involving the applicant, a surety, or an immediate family member;
iv. and that he be in the direct and continuous presence of his surety(s);
(e) the applicant is not to communicate directly or indirectly with his co-accused, Sebastian Santagato and Colton Morin;
(f) the applicant is not to possess a weapon, as defined in the Criminal Code, and that this prohibition includes, but is not restricted to, a pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person;
(g) the applicant is not to apply for nor possess a firearms acquisition certificate or other form of gun licence;
(h) the applicant shall maintain his bail papers on his person if outside the residence;
(i) within 24 hours of release:
i. the applicant shall participate in an electronic monitoring program utilizing an ankle bracelet;
ii. the applicant shall execute any required participant agreement required to engage the services of the provider;
iii. both sureties shall execute the surety agreements in the form desired by the service provider; and
iv. the applicant shall have the monitoring anklet attached to his ankle at all times; and
(j) the applicant is not to be in possession of any controlled drugs or substances not prescribed for him by his physician.
Paul B. Schabas J. Released: April 13, 2022