Court File and Parties

COURT FILE NO.: 23-86 BR DATE: 20231122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – BRANDON VAN ALLEN Defendant

Counsel: Maryse Nassar for the Crown Mash Frouhar, for the Defendant

HEARD: November 22, 2023

REASONS FOR DECISION ON APPLICATION FOR BAIL REVIEW Justice Helene C. Desormeau

Introduction

[1] The crown brought this bail review under s.521 Criminal Code of Canada. The crown sought an order vacating the release order and hearing a bail de novo.

[2] The crown argued that the Justice of the Peace’s decision to release Mr. Van Allen was inappropriate and that her analysis contained an error in law.

[3] Defence argued that the crown’s application ought to be dismissed.

Background

[4] At the bail hearing, the crown sought detention on the secondary and tertiary grounds.

[5] After a contested bail hearing, whereby the onus was on the crown, the accused was released at bail on August 15, 2023 by Justice of the Peace Logue on offences contrary to sections 91(1), 94, 95(1), 92(1), 86(1), and 108(1)(b) of the Criminal Code. The allegations arose July 8th, 2023.

The evidence on the application

[6] This court has reviewed the evidence regarding the allegations. They are very serious. These involve essentially a dispute between the Outlaws and the Loners. Here, the accused is charged with unauthorized possession of a firearm, occupied motor vehicle with a firearm present, possession of a prohibited or restricted firearm with ammunition, possession of firearm knowing its possession is unauthorized, careless storage of a firearm, careless storage of ammunition, and tampering with a serial number.

Initial bail hearing

[7] At the bail hearing, the accused presented his wife as his surety. After reviewing the case law, considering submissions, and weighing the evidence, on the plan presented at the hearing, Justice of the Peace Logue deemed the plan to be appropriate and the accused was released on the secondary and tertiary grounds.

Has there been an error of law?

[8] This is a crown request for a bail review under s.521 CCC. Based on the application record, crown submitted that the error in law was as follows:

In seeking the respondent’s detention on the secondary grounds, the crown argued that the plan was deficient due to a gap in the supervision and because of concerns over contradictory and evasive evidence provided by his surety. In holding that the plan proposed mitigates the concerns under the secondary grounds and “tips the scale (in favour of release)” the Justice of the Peace failed to address the submissions of the crown on these two points. This constitutes an error of law.

Further, with respect to the tertiary grounds, the crown argued that the gravity of the offence includes the fact that the respondent and his fellow Loners all attended a public place with loaded firearms, one of which was used. The crown further argued that consideration of the tertiary grounds must include the serious public concerns about firearms and the fact that prohibited firearms serve no purpose other than to injure and kill. In holding that a reasonable member of the public “would not deny bail”, the Justice of the Peace not only did not address these arguments, but she also came to this conclusion by unduly focusing on the fact that the respondent did not participate in the altercation.

Finally, in detaining the respondent, the Justice of the Peace placed undue emphasis on triable issues, stating, “If it were not for the significant triable issues that were raised, the decision could be quite different.”

[9] At the hearing the defence argued that the grounds advanced by the crown do not constitute an error in law. Specifically, defence articulated:

In reviewing the Applicant’s factum in support of their application for a bail review, what is most striking, is the failure of the crown to specifically and properly articulate the errors of law that would provide for jurisdiction in this Honourable Court to review the decision of Her Worship Justice of the Peace Logue, of the Ontario Court of Justice. The Applicant is in essence seeking to re-argue the bail hearing de novo, under the guise of alleged errors in law.

The Applicant has failed to identify a specific legal error made by Justice of the Peace Logue in their factum, in seeking the Respondent's detention on a Bail Review application. Just claiming that "specific submissions were not addressed" is not sufficient grounds for reconsideration of the facts in a bail review.

It is well-established that due deference must be shown to the Justice of the Peace’s consideration of the evidence. Furthermore, due consideration to the discretion of the Justice of the Peace must also be given, and on review, a Reviewing Justice is not permitted to substitute his/her discretion for that of the Justice of the Peace, unless there has been an error in law or a material change in circumstances.

[10] R. v. St-Cloud 2015 SCC 27 makes it clear that a judge can intervene and conduct a new inquiry under s. 515 CCC as to the appropriateness of the accused’s release where relevant new evidence is tendered which constitutes a material and relevant change in circumstances of the case, where an error of law has been made, or where the decision was clearly inappropriate.

[11] Where proceeding under the guise that the impugned decision was clearly inappropriate, the court considers if the Justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. The relevant factors are not limited only to the ones expressly specified in section 515(10)(c), of the Criminal Code.

Analysis

[12] In essence, on the secondary grounds, the crown argued that the Justice of the Peace did not address the submission by the crown that the surety was inconsistent, evasive and/or that there were gaps in the plan.

[13] On the tertiary grounds, it was the crown’s position that the Justice of the Peace did not properly address the gravity of the offense and the circumstances surrounding the commission of the offense, and that the Justice of the Peace disregarded the crown’s submissions regarding the concern of the general public with respect to firearms offences when considering whether the detention of the accused is necessary to maintain confidence in the administration of justice.

[14] As discussed on the record today, submissions are not evidence.

[15] The fact that the Justice of the Peace conducted a full day bail hearing and provided very detailed reasons that same day to support the release of the accused demonstrates to this court that she was alive to all the issues before her.

[16] This court finds that the Justice of the Peace properly applied the test set out in s.515(10) CCC regarding the secondary and tertiary grounds. The Justice of the Peace properly addressed the gravity and circumstances of the offences, the use of firearms, and the plan as proposed. The Justice of the Peace was in the best place to assess the surety’s credibility, and whether she found the surety to be evasive or inconsistent, and then reconciled that in her mind. The case law informs me that she is entitled deference to these determinations.

[17] Ultimately, this court is not persuaded that the Justice of the Peace erred in law.

[18] The crown’s application for bail review is therefore dismissed.

The Honourable Justice Helene C. Desormeau Released: November 22, 2023