R. v. Jackson, 2023 ONSC 5083

COURT FILE NO.: CR-23-00000266-00BR DATE: 20230905

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – TYRONE JACKSON Defendant/Applicant

Counsel: Kevin Kim, for the Crown Andrew Domacina, for the Defendant/Applicant

HEARD: September 1, 2023

REASONS FOR JUDGMENT

SPIES J. (Orally)

Overview

1Tyrone Jackson has brought an application for a bail review pursuant to s. 520(1) of the Criminal Code. He seeks an order vacating the detention order made on October 14, 2022 by Justice of the Peace K. Madigan, and granting him judicial interim release pending his trial. Justice of the Peace Madigan detained Mr. Jackson on the secondary and tertiary grounds.

2It is not suggested that Justice of the Peace Madigan made any errors in law in his decision to detain Mr. Jackson. Mr. Jackson argues that I have the jurisdiction to hear this review as there has been a material change in circumstances. For the reasons that follow, after hearing submissions from counsel I found that I did have jurisdiction to consider Mr. Jackson’s bail application de novo which then proceeded before me.

3An application record was filed containing affidavits from the proposed two sureties. The Crown filed a respondent’s record and a detailed summary of the evidence relied upon in support of the charges before this Court and information concerning Mr. Jackson’s previous convictions for possession of firearms. As one of the proposed sureties, Robbie Henry, testified before Justice of the Peace Madigan, I only heard from the new proposed surety, David Williams. Following the submissions of counsel, I reserved my decision until today.

4Mr. Jackson has a two-week jury trial scheduled for September 25 to October 6, 2023.

The Charges

5On August 9th, 2022, following a tip from a confidential informant, members of the Toronto Police Service executed a search warrant at 14 Auburndale Court, Unit 105 in the City of Toronto. Several individuals were present in the Unit at the time, including two elderly people and four of their grandchildren. Mr. Jackson was arrested alone in the basement of the Unit. The Crown asserts that the basement had been turned into a makeshift bedroom/living room and that Mr. Jackson was living there.

6During the search of the Unit police found a loaded US Charter Arms Bulldog revolver and two boxes of ammunition located in a satchel on the basement floor.

7Mr. Jackson was charged with unauthorized possession of a loaded prohibited firearm, possession of a prohibited firearm knowing he did not hold a license and registration certificate, possession of a loaded regulated firearm, and four counts of possession of a firearm and four counts of possession of ammunition while prohibited.

8There is a dispute about whether or not Mr. Jackson was subjected to unnecessary and excessive force by police during his arrest which included the use of a taser. He will seek a stay of proceedings pursuant to s. 24(1) because of this allegation at trial.

9The issue at trial on the merits will be whether the Crown can prove that Mr. Jackson had knowledge and control of the firearm. The loaded firearm was found in the pocket of a fur jacket in the closet by the landing of the basement stairs. There is an issue whether this jacket is a women’s jacket or not, but the rest of the clothing all appears to be men’s clothing. The ammunition, some of which is for the firearm that was seized, was found on the basement floor next to a pile of shoes. The firearm was tested and found to be operational. A fingerprint was found on an ammunition box that police have identified as belonging to a Dwight Bowerbank.

The Bail Hearing – October 12 and 14, 2022

10On October 12, 2022, a reverse onus contested bail hearing commenced at the Ontario Court of Justice in front of Justice of the Peace Madigan. The hearing continued on October 14, 2022, and Justice of the Peace Madigan gave his oral reasons for detaining Mr. Jackson on the secondary and tertiary grounds following the submissions of counsel that day.

11The plan before Justice of the Peace Madigan was that Mr. Jackson be subject to house arrest with no exceptions and GPS monitoring under the supervision of two sureties: Lindsay Ashale, (who is referred to in these reasons as Ms. Lindsay) an on-again and off-again domestic partner, who was prepared to pledge $2,000; and Robbie Henry, a friend of Mr. Jackson’s who was prepared to pledge $5,000 for a total of $7,000.

12Justice of the Peace Madigan heard evidence from both sureties. In summary he denied bail because he found that there was “no way” he could approve of Ms. Lindsay as a surety in that he could have no confidence in her ability to supervise Mr. Jackson. He stated that “without her being part of the picture, the whole edifice kind of falls down” and Mr. Jackson would be “effectively left unattended for a great deal of the day”. Justice of the Peace Madigan also stated that: “if I had been able to approve Ms. Lindsay, I would have given it [the proposed terms of release] a chance”.

13With respect to Mr. Henry who is one of the sureties proposed before me, Justice of the Peace Madigan stated that even if Mr. Jackson were to reside at his residence, because Mr. Henry works, for the time he is at work there would be no one to look over the shoulder of Mr. Jackson. He added that he could ground his decision on “those very narrow concerns” but went on at length to give more reasons for his decision. He found that he would “very likely” have approved Mr. Henry, and that on a relative scale, Mr. Henry had convinced him that “he has more moral suasion with the defendant, that is marginally speaking anyway”.

14Although later in his reasons Justice of the Peace Madigan stated that he shared the Crown's “substantial concerns on secondary and tertiary grounds”, when Crown counsel suggested the possibility that the bail hearing could be adjourned sine die to give Mr. Jackson time to find a surety to replace Ms. Lindsay, Justice of the Peace Madigan stated:

I am not prepared to say that no surety could satisfy and take the place of Ms. Lindsay. I am not prepared to say that the defendant is not releasable. I can envision circumstances where if I had confidence in that first surety, sure, two sureties working together could convince me of a release. I am talking hypothetically because we do not have that case right here.

I will say this, if the plan had had a stronger surety component and I reference again, Ms. Lindsay. If that relationship had been more stable and if there had been more substance to it where she could have shown that she actually had some moral suasion over the accused, I certainly would have seriously considered release . [Emphasis added]

15In addition, Justice of the Peace Madigan stated the following:

• These charges are very serious. They are perhaps the most serious kinds of charges one can be charged with nowadays, especially in light of the prevalence of shootings in the Toronto area.
• Looking at it at face value, without considering any possible contingencies that could happen in the future, I think it is a strong case for the Crown.
• If Mr. Jackson were convicted of these offences, he would face some significant jail time.
• The record gives me cause for concern on the secondary grounds.
• I am well aware that satisfaction of the four factors on the tertiary grounds does not automatically necessarily result in a detention order and I agree with that.

16Although an indulgence was given to counsel for Mr. Jackson after Justice of the Peace Madigan completed giving his oral reasons, to allow her to offer another surety before a detention order was made, no one else was available and so Justice of the Peace Madigan ordered Mr. Jackson’s detention.

Material Change in Circumstances

17A reviewing judge can intervene where there has been a legal error in the application of s. 515(10) of the Criminal Code or relevant new evidence is tendered – a material change. It is not suggested that Justice of the Peace Madigan made any errors in law. Mr. Domacina submitted that I have the jurisdiction to hear this review as there has been a material change in circumstances as follows:

a) A far superior plan is now being proposed including a new and vastly improved residential surety to replace the plan found unsuitable by Justice of the Peace Madigan. b) As Mr. Jackson's trial quickly approaches, it has become evident that significant triable issues have emerged, and the strength of the Crown's case has been brought into question.

18It is the Crown’s position that Mr. Jackson has not established a material change in circumstances, warranting intervention of the original bail decision. In the alternative, the Crown argued that if this Court finds a material change in circumstances, that detention be ordered on the secondary and tertiary grounds as Mr. Jackson has not met his reverse onus for release.

19Sections 520(7) and 521(8) of the Criminal Code provide for the tendering of new “evidence or exhibits”, including “such additional evidence or exhibits as may be tendered by the accused or the prosecutor”.

20In R. v. St. Cloud, 2015 SCC 27, [2015] SCJ No. 27, Justice Wagner (as he then was), on behalf of the court, held (at paras. 120 and 121), that a reviewing judge does not have an open-ended power to review the initial order for detention or release and that it is only appropriate for the reviewing judge to intervene if the Justice has erred in law, if the decision of the Justice was clearly inappropriate, or new evidence is submitted that shows a material and relevant change in the circumstances of the case. With respect to what would constitute a material and relevant change in circumstances Justice Wagner held (at paras. 128 and 129), that the four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 579 apply "with any necessary modifications" and that a reviewing judge must be flexible in applying these four criteria.

21I appreciate that, as Justice Hill found in R. v. Ferguson, [2002] O.J. No. 1969 (S.C.J.) at para. 17, simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not amount to a material change in circumstances. However, even the presentation of the same evidence in a new manner, or the presence of a new surety, can amount to a material change in circumstances in certain circumstances. Justice Tulloch, writing for the Court of Appeal in R v. Whyte, 2014 ONCA 268 at paras. 25-26 held:

Courts have recognized that a material change in circumstances will warrant judicial interim release where, for example, in the bail pending appeal context, additional sureties become available (R. v. Baltovich, (2000), 47 O.R. (3d) 761, [2000] O.J. No. 987 (C.A.)), or where the applicant offers a new legal argument and rearticulates existing arguments in a more comprehensive form (Daniels, supra).

In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relatively material . [Emphasis added]

22I found that there had been a material change in circumstances for the following reasons:

• Mr. Williams is a new proposed surety and was not available to act as a surety at the time of the initial bail hearing.
• This is a much strong release plan as Mr. Williams can supervise Mr. Jackson 24/7 as he does not work.
• Unlike the case of R. v. Wray, 2021 ONSC 119, referred to by Mr. Kim, Mr. Williams acting as the primary surety with the assistance of Mr. Henry addresses the concern expressed by Justice of the Peace Madigan about the unsuitability of Ms. Lindsay and accordingly addressed the reason he decided to detain Mr. Jackson.
• This application is not a case of forum shopping or a change in strategy like the court was concerned about in another decision referred to by Mr. Kim; R. v. Ledesma, 2019 ABCA 60 at paras. 33-35.

23As a result, I found that I was authorized to repeat the analysis under s.515(10) of the Criminal Code as if I were the initial decision-maker.

The Evidence at the Bail Review Hearing

Evidence of David Williams

24Mr. Williams filed an affidavit and testified before me. He is Mr. Jackson’s cousin and has known him since he was born in 1976. He is 47 years old. Mr. Williams is a Canadian citizen and does not have a criminal record, nor any charges outstanding.

25Since approximately 2013, Mr. Williams has lived in a two-bedroom apartment at 200 Dora Spencer Road, Unit 612, in the City of York, Toronto, Ontario. He lives on his own. It is proposed that Mr. Jackson would stay in the bedroom next to his. Mr. Williams has been on long term disability for a physical and mental disability since 2019 following a serious head-on car accident. Prior to 2019 Mr. Williams worked in shipping and receiving from 2015 at Humber College. His physical disability involves the use of his right hand and shoulder pain, and he suffers PTSD and, in particular, panic attacks because of the accident. I am satisfied that there are no ongoing physical or mental issues that could hinder Mr. Williams’ ability to supervise Mr. Jackson.

26Mr. Williams is aware of Mr. Jackson’s criminal record and the nature of the current charges which he states in his affidavit are “extremely serious, concerning, and upsetting to me”.

27As a result of his disability, Mr. Williams is currently not working and is at home, except for pre-scheduled medical appointments. He receives physiotherapy twice a week, which in total takes two hours with travel time and also sees his psychiatrist once every six weeks and his family doctor once every three weeks. Although he was prepared to take Mr. Jackson with him to his appointments should that be required, the plan is that he arrange his appointments at times when Mr. Henry can come to his home to supervise Mr. Jackson. Mr. Williams testified that he would wait for Mr. Henry to arrive and could arrange these appointments for late in the day when Mr. Henry is off work.

28Mr. Williams’ apartment is on the 6th floor. The building has security. He deposed that to enter the building, a fob is required, and a key is required to enter his apartment. He is not going to allow Mr. Jackson to have access to either the fob or key and will not even give a key to Mr. Henry, who will come to his apartment when he must leave and stay there with Mr. Jackson until he returns. When I inquired about an alarm, Mr. Williams advised that there is a security camera on the door to his apartment and that he can and would set an alarm that would be triggered by motion should Mr. Jackson try to leave the apartment without his knowledge.

29Mr. Williams spends 90% of his time inside his apartment as he prefers to stay indoors. When I inquired about going out to get groceries, Mr. Williams testified that he would get them on the way back from a physio appointment or a friend would pick up and bring groceries over for him.

30Mr. Williams is willing to conduct random property checks by going through Mr. Jackson’s belongings and will also ensure that Mr. Jackson does not have any visitors, except his children. Mr. Williams has a vehicle that he finances and could use to take Mr. Jackson to all his meetings with his lawyers to prepare for trial and for court appearances, including his upcoming trial.

31It is significant that Mr. Williams has been a surety in the past twice; once for Mr. Jackson and once for another family member. He was Mr. Jackson’s surety back in 2008 or 2009 for about one year and there were no allegations of breach. As for the other family member, when his cousin was late for an appointment and he could not locate him, Mr. Williams went to the courthouse and revoked his bail.

32Mr. Williams explained why he was not available to act as a surety for Mr. Jackson before now. He deposed that he was not asked until six months ago, which is after the detention order, but he testified that at that time of the original bail application he was not available as his uncle and aunt were suffering from cancer and he was providing care for them. They have since passed away. When he was asked to be Mr. Jackson’s surety for these charges, he took some time to decide whether he was prepared to do so because he needed some time to speak to Mr. Jackson and discuss what he wanted for him and the conditions that he had before agreeing to act as a surety and to ensure Mr. Jackson understood that this was a big commitment for him and the money he was willing to pledge. He also wanted to speak to Mr. Jackson about his future plans. Mr. Williams deposed that he did speak to Mr. Jackson a few times and noticed a change in his attitude towards his life and future. Mr. Jackson told him that he wants to set a better example for his 15-year-old son. In his evidence before me, Mr. Williams testified that he wants an opportunity now that he can be with Mr. Jackson 24/7 to help him change his life and get on the right path.

33Mr. Williams receives approximately $27,600 each year in disability payments and has $1,000 in his savings account. At trial he advised that he could increase his pledge to $5,000, if necessary, as he could sell his vehicle. He deposed that he is willing to pledge everything he has in support of Mr. Jackson’s release, because he is that confident that Mr. Jackson will comply with his bail.

Evidence of Robbie Henry

34Mr. Henry testified before Justice of the Peace Madigan, and I have reviewed the transcript of his evidence. He also filed an affidavit on the application before me.

35Mr. Henry is also Mr. Jackson’s cousin and has known him since he was born in 1981. Mr. Henry is 41 years old and is a Canadian citizen. He testified that he and Mr. Jackson have a strong, close family relationship and that before his arrest he saw him regularly. He has a criminal record from 2007 for flight from peace officer, which he said was for lying to a police officer, but he does not have any other convictions or charges outstanding.

36Mr. Henry lives at 2304 Weston Road, Unit 908, in the City of North York, Toronto, Ontario. He lives with his mother and his 17-year-old son. He has an 11-year-old son that he sees sometimes on the weekends. Mr. Henry is employed as a glass installer with Aluminum Window Design and works Monday to Friday from 6:30 am. to 3:30 pm.

37Mr. Henry is aware of Mr. Jackson’s criminal record and the charges he is now facing which he deposed are “extremely serious, troubling, and worrying to me”. Before he agreed to being a surety, he had Mr. Jackson promise that once released he will go back to school for a culinary diploma and open a restaurant.

38Mr. Henry is aware of the proposed terms of release and he is prepared to drop by Mr. Williams’ residence randomly to check on Mr. Jackson, conduct video and audio calls with him and Mr. Williams, and conduct random property checks by going through Mr. Jackson’s belongings anytime he goes to Mr. Williams’ home. He has an E-bike and is prepared to take Mr. Jackson to court but as stated, the plan is that Mr. Williams would drive him to and from court.

39Mr. Henry earns approximately $33,600.00 each year. He had to reduce the amount he can pledge to $2,000 because he had to pay for funeral expenses for his brother who passed away in July 2023. This money was earmarked for his children’s education. Mr. Henry deposed that he is willing to pledge everything he has in support of Mr. Jackson’s release. Mr. Henry has never been a surety before but deposed that he understands the responsibilities of a surety fully and will call the police immediately if he thinks Mr. Jackson is breaching his bail or not following his rules. He believes that Mr. Jackson will listen to him because of their relationship and testified that he is a person Mr. Jackson listens to.

40During cross-examination, Crown counsel on a number of occasions mistakenly called Mr. Henry, Mr. Jackson. This upset Mr. Henry and when it continued on more than one occasion, he complained to Justice of the Peace Madigan. The Crown also made a number of suggestions to Mr. Henry, for example that he had not updated his address with his government identification because he did not want police to know where he lived if he was stopped, (although there was no suggestion as to why Mr. Henry would be worried about that), that he had discussed his evidence with Mr. Jackson, and that he was not being truthful in his evidence about what he knew about Mr. Jackson’s work in construction. When Crown counsel stated to the court that Mr. Henry was being argumentative and refusing to answer substantive questions, Justice of the Peace Madigan’s only comment was that the one thing he could say with certainty was that he did not think Mr. Henry would send the Crown a Christmas card. He then told the Crown to continue. I do not find that these portions of the cross-examination impact on Mr. Henry’s ability to act as a surety as proposed and note that no reference to these exchanges was made by Justice of the Peace Madigan in his reasons.

Mr. Jackson’s Criminal Record

• 1999-01-06
  • (1) POSS OF UNREGISTERED RESTRICTED WEAPON SEC 91(1) CC
  • (2) ASSAULT WITH INTENT TO RESIST ARREST SEC 270(1)(B) CC
  • (3) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC.
  • Counts 1-2, 1 YR ON EACH CHG CONC, and (91 DAYS PRE-SENTENCE CUSTODY) & WEAPONS PROHIBITION ORDER FOR LIFE, Count 3, 3 Months concurrent.
• 1999-09-29
  • ASSAULT WITH INTENT TO RESIST ARREST, SEC 270(1)(B) CC.
  • 3 DAYS & (6 DAYS PRE-SENTENCE CUSTODY) & MANDATORY PROHIBITION ORDER SEC 109 CC
• 2002-08-28
  • (1) CARRY FIREARM, WEAPON, PROHIBITED DEVICE OR AMMUNITION IN A CARELESS MANNER,
  • (2) ASSAULT WITH INTENT TO RESIST ARREST,
  • (3) POSS OF A PROHIBITED OR RESTRICTED FIREARM WITH AMMUNITION
  • (4) POSS OF A FIREARM KNOWING SERIAL NUMBER HAS BEEN TAMPERED WITH.
  • Counts 1-2, 6 MOS ON EACH CHG CONC, Count 3, 3 YRS & 6 MOS CONC, Count 4, 2 YRS CONC (WITH CREDIT OF 20 MOS PRE-SENTENCE CUSTODY) PLUS MANDATORY PROHIBITION ORDER SEC 109 CC
• 2004-06-29
  • (1) POSS OF A PROHIBITED OR RESTRICTED FIREARM WITH AMMUNITION
  • (2) POSS OF FIREARM OR AMMUNITION CONTRARY TO PROHIBITION ORDER.
  • 2 Months and PROBATION for two years, concurrent on each charge, after 6 MOS PRE-SENTENCE CUSTODY & MANDATORY PROHIBITION ORDER SEC 109 CC
• 2004-10-04
  • CARRYING CONCEALED WEAPON SEC 90 CC.
  • 1 DAY & (10 DAYS PRE-SENTENCE CUSTODY)
• 2006-04-13
  • FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (3 charges)
  • 20 DAYS ON EACH CHG CONC & (35 DAYS PRE-SENTENCE CUSTODY)
• 2006-06-12
  • DANGEROUS OPERATION OF MOTOR VEHICLE SEC 249(1) CC.
  • $500 & (7 DAYS PRE-SENTENCE CUSTODY)
• 2008-02-21
  • (1) FLIGHT WHILE PURSUED BY PEACE OFFICER,
  • (2) POSS OF A SCHEDULE II SUBSTANCE SEC 4(1) CDS ACT.
  • Count (1) 7 DAYS, Count (2) 7 DAYS CONC & $500

The Legal Principles

41Mr. Jackson is presumed innocent of the charges, and he has a constitutional right to bail unless there is just cause to deny it, as guaranteed by s. 11(e) of the Charter. Section 515(10) of the Criminal Code outlines the only statutory grounds for pre-trial detention of an accused person. As Justice Wagner (as he then was) stated in St. Cloud, supra at para. 70, with respect to a person charged with a crime, even very serious crimes, it is important “not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception”. The exception being where detention is justified on one of the grounds set out in s. 515(10) of the Criminal Code; St. Cloud, supra, at para. 113.

The Secondary Ground

42With respect to the secondary ground, Chief Justice Lamer in R. v. Morales (1992), 77 C.C.C. (3d) 91 (S.C.C.) at para. 39 observed:

39. … 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 denied only 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.

The Tertiary Ground

43With respect to the tertiary ground, s 515(10)(c) of the Criminal Code it states as follows:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

(1) The apparent strength of the prosecution's case; (2) The gravity of the offence; (3) The circumstances surrounding the commission of the offence, including whether a firearm was used; and (4) 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.

44Justice Wagner set out the principles, St. Cloud, supra, which must guide this Court in the application of the four circumstances listed in s. 515(10)(c) of the Criminal Code (at para. 87), which includes the principle that a court must not order detention automatically even where the four listed circumstances support such a result. At para. 69 he made it clear that the four listed factors are simply the main factors to be balanced together with any other relevant factors, in determining whether detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in this country. At para. 88 he stated that:

In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. [Emphasis added]

45Although the tertiary ground provides a distinct basis for pre-trial detention, the strength of the plan of release is a relevant factor on the tertiary ground. As Justice Trotter (as he then was) noted in R. v. Dang, 2015 ONSC 4254, at para. 58, a defendant’s plan of release may be relevant to whether public confidence in the administration of justice is capable of being maintained. As Trotter J. observed, a “reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused”.

Analysis

46The onus is on Mr. Jackson on this bail review, as it was before Justice of the Peace Madigan.

The Secondary Ground

47I have considered the evidence and submissions of counsel and find that Mr. Jackson has persuaded me that if he is released in accordance with the proposed plan of release he will not pose “a substantial likelihood” of reoffending or interfering with the administration of justice. Furthermore, his continued detention is not necessary for the protection or safety of the public.

48Mr. Jackson has a lengthy and serious criminal record and has shown a predilection to engage in criminal conduct, primarily the possession of firearms and breach of court orders. Mr. Kim argued that this is the biggest reason in support of his position that secondary ground concerns still exist. It is his position that given Mr. Jackson’s past and the seriousness of the current charges that there is a risk that since Mr. Jackson is deeply entrenched in criminality, he will reoffend. He suggested that Mr. Jackson was the leader of a criminal gang but conceded that he has never been convicted of being part of a criminal organization.

49Mr. Domacina argued that there are gaps in his record which suggests that Mr. Jackson is capable of being a law-abiding citizen and I certainly hope that is possible. However, given his criminal record, absent a very strong plan of supervision, I would have no hesitation in finding that Mr. Jackson is likely to reoffend.

50It was argued by Mr. Kim that both Mr. Williams and Mr. Henry, as Mr. Jackson’s cousins, have tried to advise Mr. Jackson in the past to straighten out. However, I agree that despite promises by Mr. Jackson to them and his family to keep out of trouble it appears he did not listen. Moral suasion has not been enough to date, and Mr. Jackson has let his family down by continuing to commit offences. However, in my view, the proposed sureties cannot be faulted for any failure to persuade Mr. Jackson to change his ways. It will be up to him to learn how to live a productive life free of crime. In any event, the success of the proposed plan of release in no way depends on the ability of the sureties to persuade Mr. Jackson to abide by the law. They only need to supervise him, and call police should he attempt to breach the terms of release. They now have the clout provided by GPS ankle monitoring and no longer need to rely on moral suasion.

51I was very impressed with Mr. Williams and there was very little challenge to his evidence. He is an exceptionally strong surety and has the necessary information about Mr. Jackson’s past and what his responsibilities as a surety are. Mr. Williams is proposed to be the primary surety and he would supervise Mr. Jackson most of the time. I have no doubt that if Mr. Jackson attempted to leave the apartment or otherwise breach a term of his bail that Mr. Williams would call police immediately. He is a proven surety with Mr. Jackson. Mr. Kim argued that the other person he supervised breached his bail, but clearly there was an opportunity for him to do so in that case and Mr. Williams immediately revoked his bail.

52As for Mr. Henry, it is true that the Justice of the Peace did not go as far as approving Mr. Henry as a surety as Mr. Henry deposed in his affidavit, but as already stated, the Justice of the Peace did state that he would very likely have approved Mr. Henry and that on a relative scale he has marginally more suasion with Mr. Jackson than Ms. Lindsay. It is argued that the Justice of the Peace did not hear submissions from the Crown on the suitability of Mr. Henry, but the plan of supervision now is very different than that before the Justice of the Peace. I disagree with Mr. Kim, that Mr. Henry’s dated criminal record is relevant. The conviction dates back to 2007. Although Mr. Henry was not a very young man at that time, he has not had any other convictions since then. There is no law that requires that a proposed surety have no criminal record. Mr. Henry is not going to be required to supervise Mr. Jackson for any significant period of time and when he does so he will be at Mr. Williams’ Residence where Recovery Science Corporation (“RSC”) will have a perimeter set up that will trigger an alarm should he leave the apartment. In my view, given the nature of what Mr. Henry is required to do, I find that he is a suitable surety. He has posted the remainder of the education funds he saved for his children’s education, and I accept his evidence that he would call police should Mr. Jackson breach the terms of his release.

53In this case Mr. Jackson will be subject to constant ankle monitoring. He will have to stay in Mr. Williams’ Residence unless Mr. Williams advises RSC that they are leaving to go to his lawyer’s office for a meeting or are going to court. Mr. Williams has no obligations for work or childcare and he only needs to leave his residence a couple of times per week and a couple of times every few weeks and I am satisfied that when he does so Mr. Henry will be a suitable supervisor. Mr. Williams will be present until Mr. Henry arrives to take over. Although various issues were raised during Mr. Henry’s cross-examination, the reality is that Mr. Jackson will have to stay in Mr. Williams’ residence until Mr. Williams returns or the ankle monitor will trigger an alarm with RSC. Mr. Williams, in conjunction with Mr. Henry, clearly address the main concerns Justice of the Peace had about Ms. Lindsay as a proposed surety.

54I cannot think of a stronger plan of release than the one proposed and quite frankly I see no realistic opportunity for Mr. Jackson to reoffend, let alone a substantial likelihood that he would do so. For these reasons I find that Mr. Jackson’s continued detention is not justified on the secondary ground.

The Tertiary Ground

55With respect to the tertiary ground, there is no dispute that Mr. Jackson is facing extremely serious charges. He is alleged to have had a loaded firearm and ammunition in his possession or control. Although the allegation is possession and not discharging the firearm, this is a specific factor I must consider particularly since gun crime has risen significantly in Toronto. As for the circumstances surrounding the commission of the offence, Mr. Jackson is alleged to have the loaded firearm in an apartment where two elderly people and four children were present, and if convicted, particularly given his related criminal record, he will face a very significant period of incarceration.

56The Crown relies on the fact that Mr. Jackson was found alone in the basement although the backpack that was found with mail addressed to him was an address in Pickering, which is the same address the Mercedes is registered to. In addition, the Crown relies on information from the property manager of 14 Auburndale Court who on August 7, 2022, advised police that Mr. Jackson moved into Unit 105 a few months earlier and that he lives in Unit 105. The property manager based this on the fact that he knows the black male who drives the Mercedes SUV that is registered to Mr. Jackson, that he parks it in the parking spot allocated to Unit 105 daily, and that he has seen him enter Unit 105. In addition, the Crown relies on police surveillance on August 7th and 8th, 2022, of Mr. Jackson driving his Mercedes and attending at 14 Auburndale Court.

57I do find, however, that the Crown’s case is not as strong as the case appeared before Justice of the Peace Madigan. It is true that at the show cause hearing on October 14, 2022, the Crown's case appeared strong on its face, but Mr. Domacina argues that over the course of the past several months, as disclosure has been reviewed, it has become apparent that significant triable issues have emerged as follows:

a) First, the defence relies on where the firearm and ammunition were found which raises issues of whether the Crown has proven beyond a reasonable doubt that Mr. Jackson had knowledge and control of the firearm. b) Forensic analysis has returned fingerprints on the ammunition that do not belong to Mr. Jackson and his fingerprints do not appear on either the firearm or the ammunition. c) Mr. Domacina argued that there is limited, if any, evidence that suggests Mr. Jackson actually lived at the place of his arrest and the Crown’s case that he resided there is weak. In particular, he argued that the surveillance evidence linking Mr. Jackson to the place of his arrest is weak, as it was only for about three-and-a-half hours in duration over two days and police database searches completed prior to the execution of the warrant suggest Mr. Jackson actually resided at another residence in Pickering, which I note is the address on mail in his backpack. d) Finally, the property manager also told police about two other men who lived in the apartment or had access to it. One of those men was the victim of a shooting a few years ago. It is argued that in addition to Mr. Jackson, there are at least three other men who could have had possession and control of the firearm and ammunition.

58In my view, for the reasons given by Mr. Domacina, the Crown’s case, which is largely circumstantial, is not as strong as it was when Justice of the Peace Madigan decided to detain Mr. Jackson. I am required to balance all four factors listed in s. 515(10)(c) of the Criminal Code, which are not exhaustive. Although three of the factors clearly favour detention, I find that although the Crown still has a strong case, given these issues raised by the defence, the evidence against Mr. Jackson is not overwhelming.

59Mr. Kim in his factum relies on R. v. Iraheta, 2018 ONCA 229 at para. 14 where the court held that public safety concerns that fall short of the "substantial risk mark" remain relevant when considering the public confidence component and, in some cases"tip the scale in favour of detention". That case is distinguishable from the case at bar, however, as the court found that the applicant still represented a considerable risk to the safety of the community. In this case, as I have found, given the strength of the proposed release plan with a strong principal surety, 24/7 supervision and ankle monitoring, I see no realistic opportunity for Mr. Jackson to reoffend.

60Furthermore, the strength of the plan of release is a factor on the tertiary ground. As Justice Trotter (as he then was) noted in R v. Dang, 2015 ONSC 4254, at para. 58, a defendant’s plan of release may be relevant to whether public confidence in the administration of justice is capable of being maintained. He also observed that:

a reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused.

61The length of time it will take for this matter to get to trial is a relevant factor to consider; St. Cloud at para. 71. This case is unusual in this respect as Mr. Jackson’s trial is set to begin in less than four weeks. Mr. Kim argued that I could address the issues raised by Mr. Domacina in having access to Mr. Jackson while he is detained at the Toronto East Detention Centre (“TEDC”), by making an endorsement on Mr. Jackson’s remand or that Mr. Domacina could bring some sort of application.

62As I advised Mr. Kim, this court has no direct control over the TEDC. In my experience, when I try to address issues faced by a defendant during his or her trial by endorsing certain requests on the remand, all I can do is hope that they will be followed. As for the suggestion of an application, that is not a sensible solution at all. In my view, the fact that Mr. Jackson’s trial is coming up soon should not work against his release. Although it is possible for his counsel to prepare him for trial while he is detained, I accept that there are issues in this regard that make it difficult that cannot be practically addressed. Furthermore, and most significantly, given that Mr. Jackson’s continued detention is not justified on either the secondary or tertiary grounds and there are no primary ground concerns, in my view if Mr. Jackson is released on the terms proposed, a reasonably informed public would not have their confidence in the administration of justice undermined. I therefore find that Mr. Jackson has persuaded me that his detention is not necessary on the tertiary ground.

Disposition

63For these reasons I grant the application and order the release of Tyrone Jackson upon his entering into a recognizance with the following sureties: David Williams in the amount of $5,000 and Robbie Henry in the amount of $2,000, without deposit of money or other valuable security, pending his trial and on the following conditions:

(a) Reside with your surety David Williams at 200 Dora Spencer Road, Unit 612, in the City of York, Toronto, Ontario (“Williams’ Residence”) and be amenable to the routine and discipline of the household, including Mr. Williams or Mr. Henry searching your room and belongings at all times when they see fit to do so; (b) Remain in the Williams’ Residence at all times, except for: i) medical emergencies involving yourself or Mr. Williams or Mr. Henry; ii) being in the direct and continuous company of Mr. Williams or Mr. Henry while you travel directly to or from a meeting with your defence lawyers or to court; (c) Be subject to GPS monitoring by wearing a GPS ankle bracelet at all times as part of the government-funded GPS monitoring program. Comply with the RSC leave notification and battery charging requirements and cooperate fully with RSC staff. By signing Schedule "A" to this Release Order, you agree to abide by all rules and protocols of the monitoring program. These rules and protocols are an integral part of this bail order; (d) Remain in detention until a GPS monitoring device is available and has been placed on your person; (e) Do not possess any electronic device, cell phone or personal digital assistant or any other form of wireless communication device, including a computer that can access the Internet, except in the presence of Mr. Williams to speak to your defence counsel or members of your family; (f) Do not communicate directly or indirectly with Jordan Exton, Cedrick Thompson, Zahara Bushie or Carol Sparks; (g) Do not answer the door at the Williams’ Residence; (h) Do not have any visitors with the exception of members of your family; (i) Do not receive any mail unless it is first opened and read by Mr. Williams; (j) Do not receive any parcels unless the parcel is first opened and examined by Mr. Williams; (k) Attend all court proceedings as and when required in the company of one of his sureties; (l) Have a copy of the conditions of your release on your person at all times while outside of the Williams’ Residence and produce it to any police officer if requested; (m) Present yourself at the front door of the Williams’ Residence within five minutes of any such request being made by any police officer for the purpose of ensuring your compliance with these conditions between the hours of 10:00 pm and 8:00 am; (n) Do not possess any firearms, ammunition or any other “weapons” as defined under the Criminal Code; (o) Do not possess or consume any of the substances listed in the schedules to the Controlled Drugs and Substances Act and abstain from all other non-medically prescribed drugs or narcotics.

Spies J.