COURT FILE NO.: CR-21-00000344-00BR

DATE: 20220121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.B.

Defendant/Applicant

Christine Josic, for the Crown/Respondent

Royland Moriah, for the Defendant/Applicant

HEARD: January 11, 2022 (by Zoom Video)

An Order restricting publication in this proceeding was made under s. 517(1) of the Criminal Code and continues to be in effect. Counsel are permitted to circulate this decision to other counsel for Court. Publication and quotation of general principles in these reasons is permitted, but publication of any identifying information about the applicant or his personal circumstances is prohibited. These reasons comply with this order and can be published.

SPIES J. (orally)

REASONS FOR DECISION ON BAIL REVIEW APPLICATION

Overview

1The Applicant, S.B., was arrested on March 4, 2021, and charged with various firearm offences. He has been in custody since then. This case is scheduled to go to trial in August 2022 in the Ontario Court of Justice (“OCJ”).

2Mr. B brought an application pursuant to s. 520(1) of the Criminal Code to review the detention order made on March 26, 2021, by Justice of the Peace C. Shoniker (“Detention Order”), on the ground that the learned Justice of the Peace erred in law and that there has been a material change in circumstances. Mr. B seeks an order pursuant to s. 520(7)(e) of the Criminal Code vacating the Detention Order and substituting an order granting him judicial interim release with one surety, his younger sister, pledging $5,000.00.

3Counsel agreed that the most efficient way to conduct the hearing was that I first hear submissions and consider whether I have jurisdiction to interfere with the Detention Order. After hearing those submissions and considering all the material filed, I advised Mr. B and counsel that I was not satisfied that the learned Justice of the Peace had erred in law or that there had been a material change justifying our proceeding to the second stage of the hearing, where I would have considered the question of Mr. B’s detention de novo. These are my reasons for coming to that decision.

The Bail Hearing and Reasons of the Justice of the Peace

4The bail hearing commenced on March 16, 2021, and continued on March 19th, and 26th before Justice of the Peace Shoniker. It was a reverse onus hearing by nature of the charges. The Crown sought Mr. B’s detention on the secondary and tertiary grounds. The Justice of the Peace concluded that Mr. B had met his onus on the tertiary grounds but failed to meet his onus on the secondary grounds. Mr. B sought his release at that time with two sureties, his younger sister A.D. and a 64-year-old aunt on his father’s side. Before this Court only Ms. D. is proposed as a surety as Mr. B’s aunt lives in the northwest part of Toronto and it is now proposed that he would move to Niagara Falls to live with Ms. D, as that is where she now resides.

5Following closing submissions on March 26, 2021, Justice of the Peace Shoniker took a 20-minute break and then gave 44 pages of oral reasons. She had clearly prepared to give oral reasons before the last day of the hearing. The Justice of the Peace’s reasons were clearly structured. She first reviewed the background information, which included a substantive review of the evidence. She then considered the tertiary ground and concluded that Mr. B had met his onus on the tertiary ground and that a “release is potentially available if the Court’s risk concerns under the secondary ground concerns and the four factors of the tertiary ground concerns are sufficiently addressed, and that Release reduces the risk to public safety to less than a substantial risk”. Having come to this conclusion the Justice of the Peace went on to consider the plan of release including the proposed sureties and electronic monitoring and whether that plan met her secondary ground concerns.

6The reasons of the Justice of the Peace provide in summary as follows – I have underlined and quoted some of those portions of particular relevance to this appeal.

7Mr. B had been the target of an ongoing police investigation and on March 4, 2021, police executed a search warrant at a residential apartment belonging to Mr. B’s mother, where he lived with his mother and Ms. D. The police also executed a search warrant of a vehicle that Mr. B had been seen operating. The police seized a 9mm, loaded, unauthorized handgun with ammunition in its magazine, and with additional ammunition in a second magazine outside of the handgun, as well as some loose ammunition, all contained inside a zippered black satchel that was found under a seat within the vehicle. The Justice of the Peace noted that this satchel was placed in a manner that suggested that it had been fitted or shoved underneath that seat for purposes of concealment-she was able to conclude this from photographs entered at the hearing taken from above the foot well where the satchel was found.

8Just a few hours before the searches were executed, police had observed Mr. B driving the vehicle, with a female passenger, in the front seat, who was identified as Ms. L. She was also charged and had been observed by police on prior occasions driving this vehicle. At the time in question Mr. B was observed parking the vehicle in a nearby parking lot. The Justice of the Peace was not given any other information about Ms. L save that she was possibly Mr. B’s girlfriend, that they had been dating for maybe two or three months and that she occasionally stayed over with him.

9The Justice of the Peace stated:

The police also observed Mr. B go back into the parked car later in the evening on his own at about 7:39 pm and that he entered through the driver’s side. He appeared to the police to have leaned over the seat and leaned down into the back floor well between front and rear seats. From allegations provided, police could not or did not see whether Mr. B had carried anything, including the satchel into the parked vehicle, or whether the satchel had already been in the vehicle before his return and the observations of him inside driving the vehicle. Although police were not able to see exactly what was done inside the vehicle, police believe that it was at the point of leaning over the seat towards the floor that Mr. B was in the act of concealing the satchel under the passenger seat or under one of the seats in the vehicle. During their search of the vehicle, police also seized a digital scale that was lodged or inside the side pocket of the driver’s door.

10When the police executed the warrant on the residence, they searched Mr. B’s bedroom where they found Mr. B and Ms. L, who was visiting that night. There they located a black canvas-like gun holster with its black canvas strapping. It was at least partially covered by a protective health mask and was on top of other items on the chair including what appears to be a black blanket.

11At the time of his arrest on March 4th, Mr. B had previous charges for which he was and is on a bail release. These charges are being dealt with by the OCJ in the Newmarket area and are still outstanding. They relate to 14 counts of theft of property, including thefts from commercial type establishments of computers, purses, and various other items in March through June of 2018. The Crown has not brought a s. 524 application to this Court or any Court to revoke that earlier release for reasons including that those charges arise from another jurisdiction. The Crown is nonetheless relying on those outstanding charges as part of the reason for her submission that there is a secondary ground concern if the Court were to consider Mr. B’s release.

12The Justice of the Peace described these outstanding charges as “fairly brazen criminal activity” without regard to the interest of the persons working and present when the property was snatched. She agreed with the Crown that “they raised some level of risk that if released Mr. B would breach his release terms or be charged again in a manner such that there would be some level of risk to public safety”.

13The Justice of the Peace was also concerned about Mr. B’s extensive criminal record, which included three breaches of earlier releases, in addition to 12 or 14 convictions for theft. She stated that his record “has been ongoing for years and years”. As the Justice of the Peace noted, Mr. B’s engagement with the criminal justice system began as a youth, but then graduated to the adult system, and more recently there has been continued convictions of offences involving violence and the use of firearms. She noted that in March 2012, Mr. B was convicted of armed robbery with a firearm and in June 2012 he was convicted of a breach of his probation, while serving his sentence at the penitentiary. Mr. B was arrested on charges in September of 2018 when he was shot and drove himself to the hospital. That is when the warrants for his arrest in respect to thefts occurring in March and April of 2018 came to light.

14The Justice of the Peace then referred in her reasons to the rest of Mr. B’s criminal record, which reflects convictions for charges of failing to comply with earlier release conditions. She stated that it is “a bit of a jigsaw puzzle to look and understand the criminal record” because sometimes the newer charges and their later convictions are also accompanied by breach of bail convictions for what are then presently outstanding charges at the time of those arrests. The Justice of the Peace pointed out that Mr. B’s record also contains lifetime weapons prohibition orders made by the Courts including one imposed by the Ontario Superior Court in the context of the two armed robbery convictions. She then went on to consider the fact that Ms. D, Mr. B’s “kid sister” who is 26, is his surety on these outstanding Newmarket charges, and the fact that while she was his surety on those charges Mr. B was charged with the firearm offences before this Court.

15The Justice of the Peace dealt first with the tertiary grounds. She noted that the firearms charges are “easily described as serious”, that firearms are designed to maim and kill and that there is no other purpose in having an unauthorized loaded firearm in one’s possession, which she pointed out Mr. B would know better than anyone as he was shot in September of 2018. The Justice of the Peace also referred to the fact that since he has been convicted of using a firearm to commit robberies in the past, that if found guilty of the charges before the Court, Mr. B would be facing a substantial period of incarceration. The Justice of the Peace concluded that:

… the Crown’s case has real strength as presented by the allegations and information from the Crown pertaining to Mr. B, indicating the firearm was in a vehicle that he had last operated, under the continued surveillance of the police, and went back into by himself when parked, and appeared to be actively moving within and then few hours later the zippered waist bag found to contain the handgun is ultimately located in the area where he appeared to have moved within that vehicle. In addition, strapping for what is described as some type of handgun holster on his bedroom chair, on top of other items of his on that chair.

16The Justice of the Peace did not see the Crown’s case against Ms. L as being as strong. The fact the gun holster was adjustable and could fit a smaller female size did not sway her, particularly since identification of another female, not Ms. L, was found amongst Mr. B’s personal identification pouch or wallet.

17The Justice of the Peace held that beyond the nature of the charges against Mr. B, there is nothing particularly extraordinary or aggravating in respect to the allegations. The firearm was not alleged to have been used or recently used in the commission of a separate other criminal offence. There were no bullets in the chamber. However, she was of the view that it was still serious in that the magazine was loaded and it was contained within the handgun, as well an additional magazine, with bullets, was in the satchel. The Justice of the Peace concluded that:

In addition to its review of the four factors, in the Court’s view, this is not the type of case and its allegations where detention would be necessary based on the tertiary ground concern to preserve the confidence of the public in the administration of justice, if an appropriate release plan with necessary conditions, and under the supervision of an appropriate and suitable surety is proposed and put into place to address the Court’s concerns. So more simply said, this is not the case where the Court has determined that Mr. B needs to be detained on tertiary ground concern.

This Court is of the view that a release is potentially available if the Court’s risk concerns under the secondary ground concerns and the four factors of the tertiary ground concerns are sufficiently addressed, and that Release reduces the risk to public safety to less than a substantial risk. [Emphasis added]

18With respect to the plan of release proposed by defence, the Justice of the Peace considered the proposed sureties, their suitability, the proposed release plan, and she balanced the risks and the likelihood of Mr. B adhering to such a proposed plan. With respect to Ms. D, the Justice of the Peace noted that she referred to these new charges as something of a “hiccup”. In that regard, the Justice of the Peace stated:

That kind of description does not convey to this Court a true appreciation by A of the full gravity of the new charges and allegations against her brother, and the consequent concerns that these new charges raise for Crown, Court, and generally public’s safety. It is concerning. No disrespect is meant to Surety 1, as this Court does not wish to in any way minimize the care and concern that she has for her older brother or the kind of risk that she has taken already as her brother’s surety, nor the effort that she has gone to already acting as his surety. But the allegations suggest that while his surety, Mr. B is now alleged to have committed this new offence regarding the handgun, under her very nose really, hiding a firearm, a handgun, allegedly in the car, in the parking lot of her residence with him and their mother.

Ironically, A testified that she has sometimes gone into her brother’s bedroom and casually looked around, maybe when she goes into his room to talk to him, or maybe when she occasionally takes a nap on his bed if he’s not home. Interestingly, the allegations suggest that Mr. B went to the parked car and is alleged to have covertly placed the handgun within the zippered waist bag underneath the seat in that car, in that parking lot.

19The Crown also raised a concern about Ms. D’s previous experience as a surety for her ex-boyfriend back in 2018 or 2019 and before that for a female friend. The Justice of the Peace stated that her role as a surety for her female friend went well but her ex-boyfriend did not follow his bail and broke conditions, including electronic monitoring type of controls. Ultimately, he was arrested and back before the Court, at which time Ms. D ended what was a three and a half to four year relationship.

20The Justice of the Peace noted that Ms. D had done nothing but try to help others while trying to finish high school and college and then working. For that reason, she did not accept the Crown’s submission that Ms. D was perhaps lying. The Justice of the Peace concluded that Ms. D had tried to present information to the best of her ability, and done her best to be the surety for her brother but that she was:

…way out of her league, as it’s too much. A still has the ongoing obligations that will remain as a surety for the 2018 thefts and breaches. But to suggest acting again as a surety for her brother for a second time, while she is still acting for her brother on the first time, and A wants to help him out, but she should understand if she does not already that she can only help those who also want to help themselves.

Evidence was given that A has a positive relationship, a loving relationship with her brother S, Mr. B, and no doubt that Mr. B cares deeply about his kid sister, the youngest of all eight siblings. But in this Court’s view, A is not the person that would carry the necessary degree of authority over her brother who is ten or eleven years her senior, at least for the purposes of the present allegations concerning a firearm. … The information elicited by the Crown’s questions, as well as the criminal record, showed that because of the age difference, because of Mr. B’s time in and out of institutions, A has not actually lived for any sustained length of time with her brother. She testified that they last were living under the same roof, so to speak, before A had gone to her first post secondary educational courses.

21The Justice of the Peace stated in her reasons that when defence counsel asked Ms. D for examples of her brother listening to her, she gave the example of her brother finding work when she told him to do so. The Justice of the Peace stated that:

… no disrespect to young Ms. A, but her answers were not entirely strong or clear. It seemed that she did not know exactly where he had done some work or the kind of work with one of their older brothers, or frequency. At one point in her testimony, she stated that S was doing some “waterproofing and dry-walling”, and then later in her testimony stated that he had done some “waterproofing and landscaping”. And then said that, you know, he would work a few times when the brother needed a helping hand, and then later said it wasn’t really for the money, it was just to help the older brother out. It really seemed that there was a lack of clarity to the information about S’s efforts, if any, to be employed usually meant for some type of monetary benefit. There was also no suggestion that she was in charge or managed information from her older brother about his work efforts. Nothing was indicated that he had reported to her about work efforts or schedule with his older brother, or whether outside of that there was any kind of applications for work or paid employment for that brother or anybody else. Perhaps because she loves her older brother and wanted to help him, but was at the time also relying on whatever information Mr. B was giving to her.

A’s surety for Mr. B started the day after his probation order started, July 30th, 2020. So A has been actually acting as the surety concurrently running with the time of his probation order. Probably this was the reason why the Crown asked A about what she knew of any counseling that Mr. B had engaged in while she was a surety because the probation order, running concurrently, had, as one of its terms, that Mr. B was to seek counseling, treatment, et cetera, and was to report to his probationary supervisor officer in order to work on that probationary measure. And when A answered the Crown’s questions, she suggested that it looked like he was in a Zoom classroom at one point or one day - that she thought it might have been something to do with jobs or skills or making job applications - some type of information or training session. But that was the extent of her testimony in answer to the Crown’s questions.

The Proposed Release Plan also is one, in addition to her brother’s surety again, she signs again and takes a financial risk, and she again be his primary and residential surety and supervisor. Crown asked quite a few questions of A about whether and since when she has been living at the G address. In answer to the Crown’s questions, no disrespect to A but her answers were not clear. As A indicated, perhaps by explanation, she moved about ten times as a young adult to get herself to school, get her own place, get affordable rental accommodation, go to the different schools. More recently she had spent the longest stretch in Hamilton, about three and a half years. So, it did not come entirely as a surprise to the Court that A was unable to remember when she moved into [the G address]. But beyond that, that originally in her testimony A said that she had been living at [G address] for a few months or a couple of months, then it was, ‘since the end of summer’, which would have meant the end of summer, 2020 - which was a concern for the Court. Then the Crown questioned or cross-examined her, and she said that she thought it was ‘likely around the COVID shutdown time’ in or about March of 2020. Therefore, there was not really any clear response, raising a level of concern for the Court since her residency at [G. address] with Mr. B continuing to reside there under the proposed release plan, with her acting as residential surety and supervisor is a significant ingredient of this plan. A indicated that she resides with her mother and brother in the G apartment but does not have her own room. It is a two-bedroom apartment. She has been using a pullout couch in the combined livingroom and diningroom area.

22The Justice of the Peace also reviewed the evidence of Mr. B’s aunt and considered her as a proposed surety. She was not proposed to be a residential surety or even a primary surety. The proposed plan was that she would connect with Mr. B by phone or video calls during the week, and that, perhaps she might stay over on weekends. The Justice of the Peace was clearly impressed with this proposed surety and stated that there did not “seem to be anything not to like or respect about this lady”. Although this proposed surety spoke of admonishing Mr. B the Justice of the Peace was concerned about what he might do on the other days of the week when he was not in her immediate company and subject to one of her admonishments.

23The Justice of the Peace concluded:

Therefore, regarding the proposed sureties, as much as this Court appreciates and respects the courage and caring of both A, and Mr. B’s aunt to come forward for him, this Court does not find them to be suitable as appropriate sureties for these new firearm related or handgun related charges. This Court does not take issue with the continued surety supervision of A, his younger sister, on the presently outstanding bail release which is still in effect and active. Defence counsel, today, has just indicated that those theft charges relating to 2018, and the breach charges relating to 2018, might soon be resolved with an expectation of a non-custodial resolution, so that, that is in the close horizon - also for young Ms. A, and with that release surety responsibility. The Court takes no issue that bail is separate and apart and still stands. But for these charges, in this circumstance, on these allegations, … this is not the plan that would satisfactorily meet or address the Court’s concerns. The Court is mindful that there is an ongoing health pandemic. As stated by this Court, with a stronger, tighter plan, with appropriate conditions and a person or persons found suitable and appropriate by a different other Court, Mr. B could potentially be released on a different day.

24With respect to electronic monitoring the Justice of the Peace went on to say:

Just quickly, to address the electronic monitoring aspect of the proposed plan. It was suggested that as part of this proposed plan, that he would wear an electronic bracelet, monitoring bracelet. But this is a situation where it is alleged that Mr. B essentially brought trouble to the home or nearby home address where he was to be living. With electronic monitoring, it is often times used in a situation to reduce the risk of a breach and a criminal offence by ensuring that the person does not leave the premises. But in the present allegations, again as said, the allegations and offences were said to have essentially occurred at or near his home. Also, electronic monitoring is not meant to act as a substitute for a surety. It is meant to support an appropriate surety or sureties rather than a substitute. In this case, without the appropriate plan with persons deemed to be appropriate sureties for the situation of Mr. B, the electronic monitoring would not be supporting what would otherwise be strong other elements to his plan.

This Court, therefore, finds that the Defence, Mr. B, has not met his onus with this present application, and that the proposed release plan does not reduce the Court’s concern to a less than substantial level of risk to public safety. Therefore this Court is detaining on the charges presently before this Court, leaving it to Mr. B for another day, potentially perhaps after the completion of his still outstanding other matters. The Court is indicating, for the record, that the detention order is made primarily on the secondary ground concerns.

Can this Court Interfere with the Original Bail Decision?

25According to s. 520(7)(e) of the Criminal Code, Mr. B must “show cause” why the Detention Order should be vacated.

26In accordance with the decision of the Supreme Court of Canada, in R. v. St. Cloud, 2015 SCC 27, a reviewing court may only intervene with the original bail decision in three circumstances:

i. Where the justice erred in law;

ii. Where the impugned decision was “clearly inappropriate”;

iii. Where new evidence is submitted which amounts to a material and relevant change in circumstances. (at para. 121)

27Mr. Moriah, on behalf of Mr. B, submitted that the Justice of the Peace erred in law in concluding that Mr. B had not met his onus under the secondary grounds pursuant to s. 515(10)(b) of the Criminal Code. Ms. Josic for the Crown responded to each of these submissions but did not suggest, if they are valid concerns, that they are not errors in law.

28Mr. Moriah did argue that the Justice of the Peace provided insufficient reasons for her decision, and I agree that that can be an error of law. However, all the submissions Mr. Moriah made on behalf of Mr. B really went to how the Justice of the Peace assessed the evidence and whether she failed to consider or give adequate weight to items of evidence and as a result he questioned her findings of fact. Although the Justice of the Peace did not refer to the law as such, she clearly knew the factors that are to be considered on the secondary and tertiary grounds and Mr. Moriah does not challenge that aspect of her reasons. Furthermore, Mr. Moriah does not raise what would ordinarily be argued as an error in law, including a misstatement and/or misapplication of the law, a failure to consider case law principles relevant to bail applications or a failure to comply with the rules of evidence.

29In my view, what Mr. Moriah is really submitting is that the Justice of the Peace misapprehended some of the evidence. While some cases characterize a misapprehension of evidence as an "error in law", others say that it falls under the "clearly inappropriate branch" of St-Cloud; see for example R. v. Brown, 2015 ONSC 7817. A decision is “clearly inappropriate” in circumstances where the justice gave excessive or insufficient weight to a relevant factor. The reviewing judge may not intervene simply because he or she would have weighed the factors differently, St. Cloud at para. 6.

30In my view to the extent Mr. Moriah argues that the Justice of the Peace misapprehended the evidence, in light of the Supreme Court of Canada's decision in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, a judge's misapprehension of the evidence will only give rise to an error in law (albeit in the context of considering s. 676(1)(a) of the Criminal Code) in limited circumstances. “Failure to appreciate the evidence cannot amount to an error of law unless the failure is based on a misapprehension of some legal principle”, at paras. 29, citing R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 295, per Sopinka J.

31I considered this issue of how to characterize the alleged errors after oral submissions finished and so I did not have an opportunity to raise this issue with counsel, nor did I consider it an issue that warrants further submissions. Regardless of whether the issues raised by Mr. Moriah are properly considered errors in law, or reasons to find the decision of the Justice of the Peace inappropriate, in my view no error of law was made and there is no basis to find that the decision is inappropriate.

Analysis

32Turning to the specific issues raised by Mr. Moriah with respect to the reasons of the Justice of the Peace, my reasons for finding that they do not amount to errors in law or render the decision inappropriate are as follows.

Erred by failing to provide reasons establishing how the concerns raised led the Justice of the Peace to conclude that Mr. B had not met his onus on the secondary grounds.

33Mr. Moriah began his submissions and included cases in his factum dealing with inadequate reasons. It is his position that the reasons provided by the Justice of the Peace are inadequate in that from “a holistic point of view” they do not specifically indicate why the proposed release plan did not address the concerns of the Court. He added that there was only a “piecemeal analysis” of the plan and that the reasons do not meaningfully address the plan as a whole, and that this diminished the overall effectiveness of the sum of the parts of the plan “so that the sum was not as great”. He submitted that the Justice of the Peace also erred in her assessment of the proposed surety, A.D., by providing no meaningful analysis in concluding that she was not a good and sufficient surety.

34The specific issues Mr. Moriah raised in support of this submission, however, were not the usual submission that the reasons completely failed to explain the “why” but rather it is his position that the reasons given by the Justice of the Peace for the “why” were not reasonable conclusions on the evidence. He raised issues with how the Justice of the Peace explained why she did not find the proposed release plan reduced the Court’s concern “to a less than substantial level of risk to public safety”. I note that Mr. Moriah does not submit that considering Mr. B’s extensive criminal record and record for breaching court orders that he does not present a substantial risk of reoffending or that he does not pose a risk to public safety absent a strong release plan.

35I will come to the issue of whether the Justice of the Peace erred in not meaningfully addressing the release plan as a whole. With respect to Ms. D as a surety, Mr. Moriah submitted that the only issue should have been with respect to the suitability of the release plan. He argued that when Ms. D testified about her past experience as a surety and her failures in that regard as a “learning experience,” she was not suggesting that this new plan would be a learning experience and that there is nothing in either the Criminal Code nor the common law that prohibits someone like Ms. D, who has had issues before as a surety, from being a surety again. Mr. Moriah also argued that with respect to Ms. D, the Justice of the Peace should have considered whether M has learned from her mistakes and whether she has taken steps to ensure there would be no further breaches. He submitted that because of what happened in the past that Ms. D will be very careful now about how she supervises her brother.

36I agree with Mr. Moriah that there is no automatic prohibition of Ms. D being a surety again in these circumstances, but the Justice of the Peace did not simply conclude that Ms. D could not be a surety because of her mistakes. I do not understand the logic of his submission that the only issue should have been with respect to the suitability of the release plan. Considering the strength of a surety is a critical component of any release plan.

37Mr. Moriah relies a great deal on the fact that the Justice of the Peace found that Ms. D was an honest witness and the fact that she did not take issue with the continued surety supervision of Mr. B by Ms. D on the presently outstanding bail release which is still in effect from the Newmarket theft charges. In essence his position is that as a result, the Justice of the Peace should also have found Ms. D to be a suitable surety of the firearms charges before the Court.

38I did not accept this submission for several reasons. First, the outstanding Newmarket charges were not really before the Justice of the Peace and no submissions were made with respect to the release order made there. Second and more importantly, what was clearly in the mind of the Justice of the Peace was that those Newmarket charges are much less serious than the current charges before the Court since the new charges involve a loaded firearm. Considering those theft charges alone, the risk of Mr. B reoffending and committing more of those type of charges does not pose the same risk to the public that his reoffending with more firearms charges does. In my view, the fact the Justice of the Peace did not take issue with Ms. D continuing as a surety on the outstanding Newmarket charges is not inconsistent with her finding that Ms. D is not a suitable surety on the firearms charges before this Court. These charges are far more serious and pose a much higher risk to the public given the substantial risk of reoffending.

39Mr. Moriah also complained about the Justice of the Peace’s finding that Ms. D did not know her brother very well because she could not provide certain information in answer to various questions about his employment and the terms of his probation. He submitted that a surety is faulted either for not knowing enough, and not knowing of the alleged criminal conduct or is criticized for knowing too much and yet not knowing of the alleged criminal conduct. He also submitted that the type of information Ms. D did not know was because she had not lived with her brother for some time while at school.

40There is no suggestion that the Justice of the Peace got any of this evidence wrong, only that she should not have concluded what she did from that evidence. In my view, this was a conclusion that the Justice of the Peace could reasonably come to on the evidence and in any event was clearly not a material reason for her finding Ms. D to be unsuitable as a surety for these firearms charges.

41Mr. Moriah submitted that it is easy to “cherry pick” and that the comment by Ms. D that the current charges are a “hiccup” must be taken in context of all her evidence. In my view, that is what the Justice of the Peace did. She also commented on the fact that Ms. D seemed to be impressed by the fact that Mr. B was not found with the firearm in his hands. That was also evidence she was entitled to consider.

42Mr. Moriah also argued that the Justice of the Peace gave too much weight to Ms. D’s age and that she made a few references to it. The fact is that Ms. D is 10 or 11 years younger than her brother, and, in my view, it was reasonable for the Justice of the Peace to consider not only the fact that Ms. D is very young but also this age disparity among her reasons for not finding Ms. D to be a suitable surety.

43The fact is that considering all the evidence, the Justice of the Peace concluded that Ms. D was “out of her league” and was not a suitable surety for these serious firearms charges, that if proven had occurred “under her nose”. The Justice of the Peace also found that Ms. D would not carry the necessary degree of authority over her brother who is 10 or 11 years her senior, at least for the purposes of the present allegations concerning a firearm.

44In my view, these were very reasonable conclusions to reach on the evidence before the Justice of the Peace. Simply put, she found that notwithstanding that Ms. D was honest and well-meaning, she could not properly supervise her much older brother with respect to these charges. The Justice of the Peace considered all the evidence she heard and there is no suggestion that she misstated any of the evidence. The fact that Mr. B is not happy with her decision in this regard is obviously not a basis for appeal.

Erred by assessing the proposed plan of release based on the individual components instead of assessing the plan’s cumulative potential to address the secondary ground concerns.

45Mr. Moriah argued that even taking the concerns that the Justice of the Peace had, that it was still important to take a holistic approach and look at the plan as a whole. He submitted that the Justice of the Peace failed to address how the proposed plan of release would not reduce the risk of Mr. B offending while on bail to less than substantial. It is Mr. Moriah’s position that sureties can have strengths and weaknesses and that conditions could be put in place so that the surety could succeed. In this regard he pointed to the addition of electronic monitoring, which was also part of the plan put before the Justice of the Peace. Mr. Moriah argued that the Justice of the Peace failed to consider this part of the plan when she considered the suitability of the sureties in that she stated immediately before she dealt with electronic monitoring that “…with a stronger, tighter plan, with appropriate conditions and a person or persons found suitable and appropriate by a different other Court, Mr. B could potentially be released on a different day”.

46I did not accept that submission. The Justice of the Peace clearly appreciated that electronic monitoring was part of the release plan, and she did consider the entire plan, including the fact that Mr. B’s aunt was also proposed as a surety and that he was proposing electronic monitoring. In my view, the Justice of the Peace reasonably concluded that electronic monitoring is not meant to act as a substitute for a surety but rather to support an appropriate surety.

47Mr. Moriah argued that the Justice of the Peace did not consider that there are no allegations that the firearm was found in the home. He submitted that Mr. B had no previous restrictive conditions and would now be subject to a house arrest, and the proposed electronic monitoring would further restrict Mr. B’s movements and provide an additional layer of supervision.

48In my view, the fact the firearm was not found in the home is a distinction without a difference. The firearm was clearly being hidden in the vehicle parked near to the home. As Ms. Josic argued, all a GPS monitoring device would do is provide an alert that Mr. B had left a particular area, but there would be no other information as to whether he was carrying a firearm or who he was with.

Erred by relying on evidence that did not form part of the evidentiary record of the bail hearing as a means of bolstering the strength of the Crown’s case against Mr. B.

49Mr. Moriah argued that by concluding that the Crown’s case was stronger than it is, this error affected the Justice of the Peace’s view of the substantial risk of Mr. B reoffending and the impact on the public.

50The first issue raised was that it is submitted that certain comments of the Justice of the Peace are at odds with the police synopsis. Mr. Moriah submitted that the Justice of the Peace inaccurately referred to the officer’s observations of the individual alleged to be Mr. B as “leaned over the seat and leaned down into the back floor well between front and rear seats” when in fact the Crown evidence details Mr. B as being bent over at the waist and reaching into the vehicle at the rear driver side door and that it is unclear what he is doing.

51If there is a difference, in my view it is immaterial. In the Synopsis, the police state that:

Mr. B went back into the car and into the back seat from the driver side. The officer indicated that in the surveillance video, Mr. B is bent over at the waist and reaching in. It is unclear what he is doing in the video but he could easily reach over to the underside of the passenger seat where the satchel containing the firearm was located.

52It is important to remember as well that the Justice of the Peace was able to view the surveillance evidence and reach her own conclusions. That evidence was not put before this Court.

53Mr. Moriah also alleged that the Justice of the Peace inaccurately stated that “the handgun is ultimately located in the area where he [Mr. B] appeared to have moved in the vehicle,” contrary to the limited Crown evidence. She also stated later in her reasons that “the allegations suggest that Mr. B went to the parked car and is alleged to have covertly placed the handgun within the zippered waist bag underneath the seat in that car, in that parking lot”.

54Mr. Moriah submitted that the latter statement was “speculation at its highest” but I disagree. First, given the rest of her reasons, her statement that Mr. B appeared to have “moved in” the vehicle cannot be taken literally, nor did Mr. Moriah submit this. He argued that there is no evidence that Mr. B hid the handgun in the vehicle. The Justice of the Peace clearly understood, and in fact stated in her reasons that the police did not observe Mr. B carrying the satchel or placing and hiding it under the seat of the vehicle although she did note that it was dark, and the observations depended on the officer’s vantage point.

55Furthermore, her reference to Mr. B covertly placing the satchel underneath the seat is clearly stated to be an allegation. She had already stated in her reasons that: “Although police were not able to see exactly what was done inside the vehicle, police believe that it was at the point of leaning over the seat towards the floor that Mr. B was in the act of concealing the satchel under the passenger seat or under one of the seats in the vehicle”. In my view, it is a matter of common sense that that is what the police believe, and it is clearly a reasonable inference that Mr. B was in the act of concealing the satchel under one of the seats in the vehicle at the time, or adjusting the satchel that he had already put under the seat, given that he was observed going back to the vehicle and leaning over the seat towards the floor. Clearly the satchel was either hidden in the vehicle before or at that time. At this stage the Crown’s case must be taken at its highest and it is a reasonable inference that Mr. B was hiding the handgun in the vehicle, rather than his bedroom and that when he went back to the vehicle later that night that he was either hiding the handgun or adjusting where it was on the floor of the vehicle so it could not be seen.

56Finally, Mr. Moriah submitted that the Justice of the Peace improperly concluded that Mr. B’s status as the target of the search warrant, and not the co-accused, increased the apparent strength of the Crown’s case and that the inherent weaknesses in the Crown’s case are equally present for both accused.

57In my view, it was reasonable for the Justice of the Peace, based on the evidence before her, to conclude that the case against Mr. B is stronger than the case against his co-accused. To mention only some of the facts, Ms. L was only an occasional visitor, Mr. B was operating the vehicle just before the firearm was found and was seen going back to the vehicle on his own, a gun holster was found in his bedroom - a room he had control over, Ms. L has no criminal record, and Mr. B’s criminal record includes prior firearms offences – this would be relevant on the question of release.

58In any event, when considering the secondary ground, Mr. B’s criminal record clearly suggests a high risk that he will reoffend if there is not a strong supervision plan in place. If there was any error in assessing the strength of the Crown’s case, it was not material to the conclusion of the Justice of the Peace on the secondary ground. The strength of the Crown’s case was of importance primarily to the Crown’s argument on the tertiary ground.

Alleged Material Change in Circumstances

59Mr. B submitted there is a material change in circumstances that warrants reconsideration of the previous decision because it is proposed that he would now be residing in the Niagara region, away from where these allegations occurred. He relied on the decision of R. v. Itwaroo, 2020 ONSC 4116.

60The reasons of the Justice of the Peace as to why the proposed plan was not adequate did not depend in any way on the geographic location of where Mr. B lived or his access to contacts in that location. They focused on her finding that Ms. D and Ms. B’s aunt were not suitable sureties for these offences. The fact that it is now proposed that Mr. B would live with Ms. D and no longer have any supervision from his aunt, is clearly not a material change and in fact it could be argued it is a step backwards.

Conclusion

61Given Mr. B’s criminal record with 29 convictions including armed robbery, multiple breaches of court orders and probation and now facing firearms charged and charges for breach of two weapons prohibition orders, there is clearly a substantial risk that Mr. B will reoffend if a strong supervision plan is not put in place. I have already given reasons for why in my view the Justice of the Peace did not err in finding that Ms. D was not a suitable surety for these charges and why adding electronic monitoring was not a solution. As Ms. Josic submitted, Mr. B must be willing and able to follows terms of release and his track record suggests that is not possible. He was on bail and probation at the time of these charges. Given the substantial likelihood of reoffence, in my view the Justice of the Peace did not make any legal errors nor was her decision inappropriate in concluding that this proposed plan of release did not satisfy secondary ground concerns in that there would still be a substantial risk of Mr. B breaching his bail conditions and reoffending, which posed an unacceptable risk to public safety.

Disposition

62For these reasons, the application brought by Mr. B is dismissed.

Spies, J.

Decision Released: January 21, 2022

Edited Decision Released: January 28, 2022

COURT FILE NO.: CR-21-00000344-00BR

DATE: 20220121

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

S.B.

Defendant/Applicant

REASONS FOR DECISION ON BAIL REVIEW APPLICATION

Spies J.