Court File and Parties

COURT FILE NO.: CR-22-04-BR DATE: 2022-04-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

- and -

DANIK BALLABEY Applicant

Counsel: J. McConnel, for the Respondent N. DeBellefeuille, for the Applicant

HEARD: April 1 and April 14, 2022, via Zoom

REASONS ON BAIL REVIEW APPLICATION

Justice J. Fregeau

Introduction

[1] The accused, Danik Ballabey, applies pursuant to s. 520(1) of the Criminal Code for a review of a Detention Order made by Justice of the Peace B. Caron (the “JP”) on January 28, 2021. The JP found that the accused had met the onus of establishing that his detention was not necessary on the primary or secondary grounds. However, the JP held that the detention of the accused was necessary on the tertiary ground.

[2] The accused contends that the JP erred in law in his analysis of the tertiary ground for detention and that there has been a material change in circumstances since the date of the Detention Order.

[3] The Crown concedes that a material change in circumstances has occurred such that this court has jurisdiction to hear the accused’s bail review application. As a result, the Crown suggests that it is not necessary to determine if the JP committed an error in law in ordering the accused detained in custody.

[4] The material change in circumstances alleged by the accused, and conceded by the Crown, is the amount of time the accused has now spent in pretrial custody in relation to his anticipated sentence if convicted of the offences with which he is charged.

[5] The accused has now been in pretrial custody since January 21, 2021 – a period of slightly more than 15 months. Assuming he were to receive the usual 1.5:1 credit for pretrial custody against any sentence imposed on him, the credit to which he would be entitled if convicted would be approximately 23 months. I am informed that the accused has been offered a resolution proposal of two years custody less credit for pretrial custody.

[6] The narrow issue on this bail review application is whether the continued detention of the accused is necessary to maintain confidence in the administration of justice having regard to all the circumstances, including those set out in s. 515(10)(c) of the Criminal Code and the length of pretrial custody. The accused bears the onus of satisfying this court that his detention is not necessary.

Background

[7] Following the execution of a CDSA search warrant at a residence in Thunder Bay on January 21, 2021, the accused was charged with:

1. Possession for the Purposes of Trafficking – cocaine;
2. Possession of Property Obtained by Crime over $5000 – currency;
3. Fail to Comply with an Undertaking x 3.

[8] The latter charges stem from the accused’s being subject to three previous release orders from Quebec.

[9] When searching the residence on January 21, 2021, police located numerous indicia of a drug trafficking operation and a hotel room key for a Thunder Bay hotel. During the search of the accused incident to arrest, police found a bag containing seven rounds of .22 long rifle ammunition and three grams of suspected crack cocaine in the accused’s pocket.

[10] Further police investigation revealed that the hotel key found at this residence was for the Travel Lodge Hotel located on Memorial Avenue in Thunder Bay. Police followed up and learned that the accused was the current registered occupant of room 230 at this hotel. Police attended the hotel and found room 230 to be unoccupied. Police secured and held the room while obtaining a search warrant.

[11] On January 22, 2021, a second CDSA search warrant was obtained for room 230 at the Travel Lodge. When this search warrant was executed police located a Canadian passport in the name of the accused and a sum of currency believed to be in excess of $5,000.

[12] Later that day, police received a call from the manager of the Travel Lodge who advised that he had attended room 230 after the police had conducted their search in order to confirm that it was safe for cleaning staff to enter room 230. The manager advised police that when doing so, he located a firearm and a bag containing an unknown white substance.

[13] Police re-attended the hotel and spoke with the manager. He told police that the keys for room 230 had been cancelled and that nobody had been in the room since the police had conducted their search. He further told the police that he had found the firearm and the bag with the white substance behind/under the large dresser and television stand against the wall.

[14] Police seized both the firearm and the bag of the white substance. The latter is suspected to be crack cocaine and weighed 159 grams. The firearm was determined to be a .22 calibre rifle, consistent with the ammunition found on the accused, which had been modified by cutting off both the stock and the barrel such that it was a prohibited firearm able to be discharged with one hand. As a result, the accused was charged with the following additional offences:

1. Failure to comply with Undertaking;
2. Careless Storage of a Firearm;
3. Possess Firearm without License;
4. Possess Prohibited Weapon without License;
5. Possess Firearm Knowing he did not have License;
6. Possess Prohibited Firearm Knowing he did not have License;
7. Possession of a Loaded Prohibited Firearm;
8. Possess Property Obtained by Crime.

The Position of the Accused

[15] The accused submits that the detention of an accused only on the tertiary ground is rare and that the paramount consideration on the tertiary ground is the strength of the Crown’s case. The accused concedes, subject to possible Charter issues, that the Crown’s case is strong in regard to the suspected cocaine and loose ammunition found on the accused when searched incident to arrest.

[16] However, the accused suggests that the accused’s possession of loose ammunition and a small amount of suspected cocaine is inadequate, in and of itself, to justify detention on the tertiary ground. The accused submits that the Crown’s case for detention on the tertiary ground is, in substance, premised on the accused’s alleged possession of the modified .22 calibre rifle and 159 grams of suspected cocaine found in room 230 of the Travel Lodge.

[17] The accused submits that the strength of this aspect of the Crown’s case is seriously compromised as a result of the bizarre manner in which these items were located. The accused contends that these items simply could not have been missed by all of the several police officers who conducted the search of room 230.

[18] The inescapable conclusion, according to the accused, is that these items must have been placed in the room after the police had completed their search – which the accused could not have done because he was in custody.

[19] The accused submits that this is a substantive weakness in the Crown’s case which may very well result in reasonable doubt as to guilt being found at trial. The accused contends that the detention of an accused on the tertiary ground based on a weak or doubtful Crown case undermines public confidence in the justice system.

[20] The accused further submits that a strong proposed release plan must be considered during the tertiary ground analysis. The accused notes that the JP found the proposed release plan to be “very reasonable” and that the JP had “no doubt as to the [proposed] sureties being capable in taking care of the accused”. The accused submits that the proposed release plan on this application - house arrest supervised by five sureties – is as strong a release plan as is possible.

[21] Finally, the accused submits that he has now served over 15 months of pretrial custody. Assuming he were to receive the usual 1.5:1 credit, the accused submits that he is now at a “time served” position based on resolution discussions.

[22] The accused submits that public confidence in the judicial interim release regime would be substantially eroded by pre-trial incarceration of presumptively innocent individuals equivalent to the anticipated sentence if convicted.

The Position of the Federal Crown

[23] The Crown submits that the evidence supports the fact that the accused was the only occupant of room 230 at the Travel Lodge. The Crown contends that the .22 calibre ammunition found in his pocket during the January 21, 2021 search is strong circumstantial evidence that he also had possession of the modified .22 calibre rifle found in room 230 together with the 159 grams of suspected cocaine.

[24] The Crown submits that this combination of “guns and drugs” amounts to a very serious set of charges. Drug trafficking is inherently violent criminal activity profiting at the expense of a vulnerable population. This, combined with the fact that a prohibited firearm was involved, results in the accused being liable to a lengthy period of imprisonment if convicted, according to the Crown.

[25] The Crown submits that the circumstances of the offences makes this case one in which it is necessary to deny the accused bail in order to maintain confidence in the administration of justice, even though detention is not necessary on the primary or secondary grounds.

Discussion

[26] The accused is 19 years old with no prior criminal record. The Crown concedes that detention is not necessary on either the primary or secondary ground but submits that it is necessary to maintain public confidence in the administration of justice. This submission is based on the circumstances of the offences with which the accused is charged, those being drug trafficking charges and the related possession of a modified .22 calibre rifle.

[27] I reject the accused’s submission that the strength of the Crown’s case is seriously undermined as a result of the manner in which the 159 grams of suspected cocaine and the modified .22 calibre were found. There is nothing in the evidence to suggest that anyone else was in occupation of room 230 at the relevant time, but for a booking sheet which suggests the room had been booked for two people.

[28] Therefore, in considering s. 515(10)(c) of the Code, the Crown’s case is strong, the offences are serious and a modified, prohibited firearm was involved. Despite his young age and lack of a previous record, the accused would be liable, on conviction, for a potentially lengthy term of imprisonment. All weigh in favour of detention on the tertiary ground.

[29] However, the accused, presumptively innocent, has now been in pretrial custody for in excess of 15 months and is at a “time served” position. Further, the accused proposes a strong bail plan – surety supervised house arrest.

[30] But for the length of pretrial custody and the strength of the proposed bail plan, I would conclude that the accused has not shown cause that his detention was not necessary on the tertiary ground. I am of this view because of the combination of the possession of a modified, prohibited firearm together with a substantial quantity of suspected crack cocaine. In my opinion, these facts militate very heavily in favour of detention on the tertiary ground.

[31] However, in my view it is not open to serious argument that the detention of presumptively innocent persons in pretrial detention to the point of a “time served” disposition erodes public confidence in the judicial interim release regime. Given that this has occurred in this case, I conclude that the accused has shown cause that his further detention is not necessary to maintain confidence in the administration of justice.

[32] The accused shall be released on a release order as follows:

1. The accused shall sign a recognizance of bail in the amount of $1,000 without deposit;
2. The accused shall, upon release, travel directly from Thunder Bay to 190 Rue Moge Sorel-tracy, Quebec where he shall reside with his mother Melanie Gauthier and his sister Carole Gauthier;
3. The accused shall remain in his residence at all times, except when in the direct and continuous company of one of his sureties;
4. The following parties shall sign as sureties for the accused, all in the amount of $1,000 without deposit: a) Melanie Gauthier – 190 Rue Moge Sorel-tracy, Quebec b) Isabelle Cossette – 1979 Chemin de Tremblay, Longeuil, Quebec; c) Katherine Malo – 1941 rue Emile-Nelligan, Varennes, Quebec; d) Carole Gauthier – 190 Rue Moge Sorel-tracy, Quebec; e) Marie-Soliel Gauthier Malo – 3930 Rue Mayfair, St. Hubert, Quebec.
5. The accused shall not possess any weapons or firearms as defined by the Criminal Code;
6. The accused shall not communicate directly or indirectly, by any means, with Mark Myers or Christine Anderson, except indirectly through counsel;
7. The accused shall not attend within the city of Thunder Bay except for required court appearances and in the company of one of his sureties.

Released: April 29, 2022 The Hon. Justice J. Fregeau