Superior Court of Justice

BARRIE COURT FILE NO.: CR-23-03-00BR

DATE: 20230207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

STEVEN MCGINN

Applicant

COUNSEL:

Jennifer Armenise, for the Crown

Mikesh Patel, for the Applicant

HEARD: February 7, 2023

HEALEY J.

Bail Hearing - Reasons for Decision

[1] The applicant Steven McGinn applied under s. 520 for a review of the detention order of Justice of the Peace Noordegraaf made on December 16, 2021.

[2] Her Worship made a detention order on the secondary ground, citing the applicant’s extensive and lengthy criminal record containing multiple breaches of court orders. His most recent charges, at the time of that bail hearing, had been laid in July, August and October 2021 as particularized below.

[3] On July 25, 2021, the applicant was charged with possession of proceeds of crime, obstructing a peace officer, possession of weapons dangerous and possession for the purpose contrary to s. 5(2) of the CDSA. He was released on an undertaking.

[4] On August 6, 2021, the applicant was charged with eight counts under ss. 4(1) and 5(2) of the CDSA, possession of proceeds of crime, and possession of a prohibited weapon. He was held for bail and released with Laurie Goldsmith, his mother, appointed as his surety.

[5] On October 16, 2021, he was charged with even more serious weapons offences and further CDSA offences. The drug offences involve methamphetamine, cocaine and heroin. With respect to the prohibited weapon, a revolver, the charges include possession for a purpose dangerous. All contrary to a prohibition order and contrary to his release order made only two months earlier.

[6] Her Worship was of the view that, based on the information before her, it was clear that “a breach is not only likely, but inevitable” regardless of the identity of the surety.

[7] The applicant’s criminal history as reflected in his record begins in 2006 as a youth. His adult record begins in 2010 and there are convictions every one to two years thereafter with no break in between. There are six convictions alone for breaching a probation order.

[8] I agree with Mr. Patel that it is obvious that the applicant has been addicted to drugs and alcohol for a very long time and that this is a large factor in his criminal history. According to his evidence, he has been sober since his incarceration at CECC in October 2021.

[9] The applicant has now pled guilty to several of the charges stemming from July and August and sentencing is complete.

[10] The current application is premised on a change in circumstances, it being asserted that the applicant has proposed a new and better surety, Susan Hnatiak, and has agreed to be subject to house arrest with GPS monitoring through Recovery Science.

[11] The proposed surety is said to be a close family friend of the applicant and his mother. However, her cross-examination revealed that she did not even know the applicant’s mother’s first name, nor would she recognize any of the three individuals who the applicant is prohibited from contacting. She did not know the particulars of his criminal record, just that it was “long and not very good”. She has not performed this role in the past.

[12] Ms. Hnatiak also has no ability to pledge security for her role. Her evidence was that she could borrow money from her father but that she had not spoken to him about specific amounts or about the applicant’s charges. Her father does not know the applicant. I assess her evidence of being able to secure money as being merely speculative. Further, Ms. Hnatiak has a 9-year-old daughter and is a single parent. It stands to reason that she will be called upon to leave her home from time to time in the normal course of raising her daughter. Although she does not have employment, Ms. Hnatiak will not always be home to monitor the applicant. Although Ms. Hnatiak appears well-intentioned, I am not at all satisfied that she exercises sufficient influence over the applicant to keep him from breaching in the event that his very long-standing addiction becomes too much for him to withstand upon release. If he reoffended while his mother was his surety, the court cannot expect Ms. Hnatiak’s oversight to meet with any better success.

[13] I acknowledge that the applicant wants release, in part, so that he may participate in virtual counselling from Mamaway Anishinaabe Miikan “Red Road to Recovery” Relapse Prevention Program, which he cannot access in custody. He has also completed a 12-step program at CNCC through his addictions worker and has been given a position of trust in the facility as a result of his positive behaviour. If it was possible to release the applicant to a full-time residential treatment centre with GPS monitoring, he would likely continue to thrive in that environment. But such a facility is not available. The virtual counselling program that he would participate in within the environment offered by the surety is not enough of a safeguard given his long-standing addiction and criminal history.

[14] Nor is GPS monitoring the answer. This court has no evidentiary basis to make this part of a release plan other than a brief email confirming that Ms. Hnatiak’s address is suitable for GPS monitoring. Beyond that, the court was not provided with any evidence that the Internet router or any land telephone line in Ms. Hnatiak’s apartment is sufficient to afford accurate and continuous monitoring, there was no evidence about when the equipment could be installed, a representative from Recovery Science was not available in court to provide evidence, and no further terms related to the monitoring were proposed. This court was not able to evaluate the suitability of GPS monitoring.

[15] Even if that evidence had been available, given that the proposed surety did not otherwise satisfy this court that she would be able to mitigate the risk of reoffence by the applicant, GPS monitoring would not have tipped the scale on this application. As pointed out in R. v. Larocque-Laplante, 2017 ONSC 1038, at paras. 36 and 37, and in R. v. Osman, 2020 CarswellOnt 2080 (S.C.J.), at paras. 30 and 31, electronic monitoring has its limitations in the context of bail. It does not prevent an individual from re-offending, it simply puts them in a particular location with no information about what they are doing. It cannot make up for other weaknesses in the release plan, and it certainly does not track third parties who come and go from a location.

[16] I am not satisfied that the release plan comes anywhere close to being strong enough given the high risk of reoffence and find it appropriate to continue to detain the applicant on the secondary ground. For these reasons, the application was dismissed.

HEALEY J.

Released: February 7, 2023