Court File and Parties

Court File No.: CR-23-6070-BR Date: 2024-03-08 Delivered: Orally on March 8, 2024 and in writing April 5, 2024

Ontario Superior Court of Justice

Between: His Majesty The King And: Marvin Watson, Accused

Counsel: Sarah Virani, for the Crown Frank Retar, for the Accused

Heard: February 21 and 22, 2024

Restriction on Publication

Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the accused. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code.

Reasons on Application for Bail Review under s. 520 Criminal Code

HOWIE J.

[1] This was a challenging bail review hearing. I thank counsel for their assistance.

Summary

[2] The applicant is 31 years old. He has no criminal record. He describes himself as a self-employed automobile mechanic.

[3] In March 2023, CBSA officers seized 300 kg of methamphetamine. The driver of the truck was arrested at the Ambassador Bridge. The delivery was destined for 2776 Slough Street, Unit 6, Mississauga, Ontario. The shipment originated in Illinois.

[4] The RCMP executed a search warrant for Unit 6. Items were found tying the applicant to the unit, such as a boarding pass. A further production order provided an email address for the utilities at Unit 6 to be that of the applicant. Other circumstantial evidence was uncovered.

[5] The RCMP conducted surveillance on the applicant at his residence in York, Ontario (greater than 200 km from Windsor). Amongst other things, he was observed unloading empty crates. Distinctive black and yellow totes were noted. The RCMP secured and executed a search warrant at his residence. Investigators located four black totes containing more than 100 kg of methamphetamine. The shed on the property contained a hydraulic press, packing material, and score sheets.

[6] Evidence was uncovered tying the applicant’s common-law spouse to significant cash deposits into her account at TD/Canada Trust and Scotiabank.

[7] On June 21, 2023, the applicant was arrested while he was driving, alone, in a U-Haul truck which contained 121 kg of cocaine.

[8] Subsequent testing further established that the following was seized:

a. Methamphetamine: 400.43 KG b. Cocaine 121.36 KG c. MDMA: 2.13 KG; and d. Cannabis: 1.55 KG

[9] On June 21, 2023, the applicant was arrested and charged with:

a. importing a narcotic contrary to section 6(1) of the Controlled Drugs and Substances Act (CDSA); b. two counts of possession for the purposes of trafficking under section 5(2) of the CDSA; and c. laundering proceeds of crime contrary to section 462.31 of the Criminal Code, RSC, 1985, c. C-46, as amended (“the Code”).

[10] The bail proceedings were heard on July 21, 2023, and August 10, 2023, before Her Worship Justice of the Peace S. Jafar. Her worship detained the applicant in custody pending disposition of his matters.

[11] The applicant has been, and is, in custody at the Southwest Detention Centre. The applicant’s preliminary hearing has not been set. There was a scheduled pretrial in the Ontario Court of Justice on February 13, 2024, although I am not aware of the outcome of that attendance. The applicant did not allege that the Crown was responsible for any delay.

[12] At the commencement of this application, the applicant had been detained for some 307 days.

[13] In this application, the defendant urges this court to vacate the detention order, generally speaking, on the grounds that the justice of the peace made an error in law, or that there has been material change in circumstances since the bail hearing. If an error or material change is found, the applicant seeks a conditional release pending disposition as detailed below [“the bail plan”].

[14] The Crown concedes that the reasons of the justice of the peace contained, in part, one error in law. However, the Crown argues that the error had no impact on the detention order and that the error should be disregarded. Furthermore, the Crown argues that there has been no material change in circumstances. Lastly, if there was an error or material change, the proposed bail plan does not satisfy the reverse onus and the test set out in s. 515(10) of the Code.

Notice of Application

[15] The applicant brings, under s. 520 of the Code[^1], a review of his detention on the grounds:

i. that the justice of the peace erred in law or principle in finding that the applicant’s detention was necessary to ensure the safety and protection of the public and maintain confidence in the administration of justice; ii. that there has been a material change in circumstances warranting a review of the detention order, and in particular, that there is a proposal to increase the number of sureties supported by actual cash pledge; and iii. that the justice of the peace in rendering her decision appears to suggest that some alteration might make the release acceptable[^2].

[16] The applicant seeks to vacate the detention order of Justice Jafar, and in its place, proposes a release order. The proposed conditions of the release order are summarized as follows:

a. that he resides with his surety, his mother, at her residence in Shelburne, Ontario; b. that five sureties pledge a total of $225,000; c. that four sureties provide cash deposits totaling $60,000; d. that he remain at the sureties premises at all times except for medical emergencies, etc.; e. that he not communicate in any way with such persons as a prosecution may specify; f. that he not possess any weapons as defined under the Code; g. that a GPS monitoring device be applied and that he be subject to the GPS rules and protocols; and h. that the applicant not be in possession of any communication device such as telephone, laptop, computer, etc., and that if he is required to operate such a device, the device be the property of a surety and his operation of the device be monitored by the surety.[^3]

[17] This hearing was held on February 21 and February 22, 2024. I considered the following material and evidence:

a. the applicant’s amended notice of application; b. the applicant’s amended factum; c. the affidavit of the applicant; d. the transcript of the bail hearing heard August 10, 2023; e. the legal authorities provided to the bail hearing court; f. the applicant’s book of authorities prepared for this hearing; g. the affidavit of proposed surety – Leaf Watson; h. the Service Ontario parcel registrar for the property known municipally as: 920 O’Reilly Cr., Shelburne, Ontario; i. gps.solgen email/suitability inquiry dated February 20, 2024; j. the oral testimony of the following proposed sureties: i. Susanne Cary; ii. Robert John (aka John Robert) Cary; and iii. James Kigruru; k. the Crown’s application record for judicial interim release; l. the Crown’s books of authority, along with further case law presented; and m. the Crown’s factum.

[18] In order for this court to vacate a detention order under s. 520, I must find:

a. an error in law/that the detention order was clearly inappropriate; or b. a material change in circumstances.

[19] If I find one of those, then a bail review de novo evidence be considered.[^4]

General Principles

[20] At the outset, I think it would be helpful to review the general legal principles that guide this court:

a. It goes without saying that the applicant is entitled to the presumption of innocence and the right to reasonable bail. Accordingly, detention must be guided by the principle of restraint; b. The granting of bail is an extremely important part of the criminal trial process. As set out in Trotter, The Law of Bail in Canada:

… The effects of pretrial detention may resound further into the accused life. The alienation from family and friends may cause great suffering. Also, incarceration also leads to loss of employment which may in turn compromise the accused ability to retain counsel of choice…. Most troubling, however, is the evidence of researchers which suggest a detrimental link between pretrial detention and the success of the accused in court… In short, research in Canada, England and the United States has shown that, compared with those who remain at liberty pending trial, accused who are denied bail tend to be found guilty more often and are more likely to receive custodial sentences.[^5] [Citations omitted];

This view is supported by the Supreme Court of Canada. Wagner J. (as he then was) explained in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 66:

Pre-trial custody “affects the mental, social and physical life of the accused and his family” and may also have a “substantial impact on the result of the trial itself.” [Citations omitted]

c. The pretrial release of the accused is the cardinal rule. As the Supreme Court of Canada explained in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (“St-Cloud”), at para. 70:

This entitlement rests…on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter… These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case. [Citations omitted]

d. Pretrial detention is the exception. The Supreme Court of Canada described pre-trial custody, in the context of a s. 525 hearing [see R. v. Myers, 2019 SCC 18, [2019] S.C.J. 18 at para. 67] as “a measure of last resort.”[^6]

e. The Code provides that in making a decision under Part XVI, the court shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are reasonably practicable: section 493.1;

f. In addition, the court shall give particular attention to the circumstances of accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release: s. 493.2 (In that regard, this applicant is black.)

[21] Nonetheless, pre-trial detention is sometimes necessary and appropriate. If just cause exists, reasonable bail may be denied. Detention is justified in the three circumstances set forth in s. 515(10) of the Code: the primary ground, the secondary ground and/or the tertiary ground.

[22] Furthermore, the power of a judge under section 520 is not open-ended. This court cannot simply disagree with the justice of the peace and replace the justice of the peace’s decision. To vacate the existing detention order, the court must find that the justice of the peace:

a. erred in law or principle; b. the decision was clearly inappropriate (i.e. the justice of the peace applied excessive weight to one factor and/or disregarded other factors); or c. that there has been a material and relevant change in the circumstances of the case.[^7]

[23] Lastly, there are some situations in which the “reverse onus” applies. This application is one of those situations. Accordingly, an order that the accused be detained in custody is required unless the accused shows cause why his detention in custody is not justified: s. 515(6)(d) of the Code.

[24] In summary, I must find that the justice of the peace made an error of law or clearly inappropriate decision, or that there has been a material change. If I answer in the affirmative, then I must conduct a bail hearing de novo. In considering a detention order on the new bail hearing, I must be mindful of the general principles set out above.

Was there an error in law or principle?

a. Did the justice of the peace, in a meaningful and coherent fashion, address the primary and secondary grounds?

[25] At this point, it would be helpful to review the reasons of Justice of the Peace Jafar. To put this into context, the submissions of counsel at the bail hearing took up 63 pages of transcript. The reasons for judgment covered an additional 22 pages.

[26] Bail courts are extremely busy. It is not necessary for the justice of the peace to act as a transcriptionist and refer to every single piece of evidence or legal principle. That being said, the obligation of the justice of the peace has been summarized as follows:

It has never been suggested that the judicial official presiding in a busy bail court, in providing reasons for detention, need deliver breathless prose or slavishly track the wording of one or more paragraphs of s. 515(10) of the Code. The text of the reasons must, in some meaningful and coherent fashion, expose an analysis related to the primary, secondary or tertiary grounds described in that statutory provision.[^8] [Emphasis mine.]

[27] After careful consideration, I am left without a coherent sense of the legal basis employed by the justice of the peace to justify detention. I say this for a few reasons.

[28] The justice of the peace stated, correctly so, that the Crown objected to the release of the applicant on all three [primary, secondary and tertiary] grounds.

i. The primary ground (to ensure attendance)

[29] She found that the primary grounds were not “alive” in consequence of the presentation of the sureties.[^9] In the context of her entire reasons, this was an appropriate conclusion, supported by the evidence. She was satisfied that detention was not necessary to ensure the applicant’s attendance in court.

ii. The secondary ground (protection of the public)

[30] She then turned to the secondary grounds [whether detention is necessary for the protection or safety of the public]. It is at this stage that the reasons fail. She correctly determined that the test was whether or not there was a substantial likelihood in light of the proposed plan. She described the plan as “quite comprehensive”.[^10] She correctly noted that the court should not financially “crush” the sureties. But then, she stated:

Jumping a little bit now (to the tertiary grounds), but before I do that, it (the release plan) could be tweaked. I do not know in what [way]. It would have been better that the tweaking would have been suggested although in defence of Mr. Paradkar, he did offer 40 to 50,000 cash deposit if that was needed but it should have been a little more tweaked, I am not saying any further on that and that is fine.

[31] It seems to me that the applicant has the right to know how his release plan failed the second ground in the context of a reverse onus. Unfortunately, the justice of the peace left no indication how the release plan was inadequate. I am mindful that at the very end of the decision, the justice of the peace stated that the applicant was being detained “… basically on the tertiary grounds.”[^11] However, this did not negate the fact that she found that the bail plan failed the secondary ground.

[32] The Crown states that the words “tweak” or “tweaking” really meant that the bail plan did not discharge the applicant’s onus. In that regard, I agree. However, I believe that it is essential that the applicant know why.

[33] Counsel for the applicant provided me with the decision of Justice Durno in R. v. Budge. Justice Durno reviewed a detention order that utilized the phrase “not at this time”. He concluded that this was one of several bases to review the detention order afresh.[^12] I reach a similar conclusion here.

[34] Therefore, I conclude the justice of the peace made an error in principle granting me the authority to review the detention order.

b. Did the justice of the peace err in the application of the tertiary grounds test?

[35] As stated above, the justice of the peace concluded that the applicant failed to discharge his onus on the tertiary ground.

[36] This tertiary grounds section was added to the Code in June 1997 following R. v. Morales.[^13] Section 515(10) I of the Code provides:

For the purposes of this section, the detention of the accused in custody is justified only…

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

(ii) the apparent strength of the prosecution’s case; (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) 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.

[37] I turn now to the manner in which the justice of the peace analysed the tertiary ground.

[38] The justice of the peace noted that the public would lose confidence in the administration of justice if the accused persons are released in “certain circumstances”. She correctly defined what is meant by the “public”.

[39] She then stated that the tertiary grounds has four factors to assist the judicial officer, but that the four factors are not “the only determinative”. She concluded:

a. that the Crown’s case is “overwhelmingly strong”[^14] and points out the details of the investigation; b. in terms of gravity of the offence, she reviewed the maximum and minimum sentences; c. in terms of the circumstances surrounding the offence, she noted that there were no firearms used; d. she noted the mitigating factors, including the “strong presence” by the applicant’s family; d. as aggravating factors, she noted the meticulous planning and the devastation of trafficking in the community.

[40] At that point, the justice of the peace turned to the release plan. As she did above, she mentioned that the release plan “could be tweaked”.[^15]

[41] She then turned to the “ultimate question” [defined later in this decision]:

I think that a member of the public aware of the details of this bail hearing and knowing how strong the case for the Crown is, knowing the details that are provided today as to how Mr. Watson is tied to that horrendous amount of kilograms of illicit drugs, cocaine and meth, they would lose confidence in the administration of justice if he were to be released. Especially after the pandemic when we know how drug use is on the rise, it is very lucrative…So, an educated member of the community, knowing the specifics of this bail hearing and knowing the devastating effect of illegal drugs on families and lives in our community, and also actually people get guns to defend their drugs, not necessarily Mr. Watson at this level, but when it trickles down, all the simple drug dealers, simpler than this, this is on the higher level if I may say so. People have three kilograms here and three kilograms there, you always find them with guns and things that further endanger our community.[^16]

[42] The tertiary grounds have been reviewed by many courts, including the Supreme Court of Canada.

[43] In R. v. Hall, 2002 SCC 64, the court explained that bail denial to maintain confidence in the administration of justice is not a mere “catch all” for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial. While the same facts may be relevant to all three heads, this does not negate the fact this ground is distinctive.[^17]

[44] In R. v. St-Cloud, 2015 SCC 27, the Supreme Court noted:

a. this ground is a distinct ground that itself provides a basis for ordering the pretrial detention; b. this provision must not be interpreted narrowly or used sparingly and is not limited to exceptional circumstances; c. the section does not require exceptional or rare circumstances; d. the question of whether a crime is unexplainable or unexplained is not a criteria that should guide the court; e. a justice must determine the apparent strength of a prosecution’s case, but the justice must be careful not to play the role of judge and jury. The justice must consider the quality of the evidence tendered in order to determine the weight to be given as part of the balancing exercise. The justice must consider any defence raised and take this into account; f. a justice must determine the objective gravity of the offence in comparison with other offensives in the Code. This is assessed on the basis of the minimum and maximum sentence provided in the Code for the offence; g. the justice must consider the circumstances surrounding the commission of the events such as whether the offence was violent, whether the offence was committed in the context of domestic violence, whether it is alleged that the applicant is part of a criminal gang or terrorist organization, or that the victim was vulnerable. The court may refer to aggravated or mitigating factors that are considered by courts for sentencing purposes; h. the justice must consider whether the accused is liable for a potentially lengthy term of imprisonment, after consideration of all of the circumstances of the case; i. the list of factors is not exhaustive; j. the court must consider all the circumstances of each case paying particular attention to the four listed circumstances. No single circumstances is determinative; k. the court must consider the combined effect of all of the circumstances of each case, which involves a balancing of all relevant circumstances; and l. most importantly, the ultimate question to be asked by the court is whether the detention is necessary to maintain confidence in the administration of justice, guided by the perspective of a reasonable person who is properly informed about: i. the philosophy of the legislation; ii. the values enshrined in the Charter; and iii. the actual circumstances of the case; m. such a reasonable person is not a legal expert but is aware of the presumption of innocence, the right to liberty, the expectation of a trial within a reasonable period of time, and the fact that the offence requires culpable intent; n. a reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified, but also if it orders detention where detention is not justified.

[45] It is important to note that detention does not automatically follow even when the four listed circumstances support that result.[^18] Furthermore, the adequacy of the applicant’s bail plan is a factor that may be considered under the tertiary ground.[^19]

[46] In totality, I find that a combination of focus on the four circumstances without reference to the specifics of the bail plan, other than to say that it needed to be “tweaked”, is an error in law.

[47] There is no question that the Crown’s case is strong. This is acknowledged by the applicant. There is also no doubt that this is a very, very serious charge. The applicant is facing the possibility of a lengthy incarceration; the Crown made reference to a sentence of 15 years. The only positive thing that can be said about this ground from the perspective of the applicant is that there were no firearms discovered.

[48] The difficulty I have with the reasons is that little consideration is given to the proposed conditions of release and its impact on the tertiary ground. The court is not faced with a ”stark choice between absolute freedom on one hand, and detention on the other” as characterized by Trotter J. (as he then was).[^20] A reasonable and informed member of the public, recognizing the presumption of innocence, would also look at the proposed bail plan. Would public confidence be undermined if the applicant, with no prior record, were to be released into the supervision of his mother, sister, and other relatives, subject to virtual house arrest under strict terms, including the requirement to wear an ankle device, while sureties have put their own financial security at risk and were committed to take an active role as a jailer? The justice of the peace did not complete this analysis.

[49] For these reasons, I find that the justice of the peace made an error in law.

C. Did the justice of the peace apply s. 493.2 of the Code?

[50] The third alleged error in principle or law is that the justice of the peace did not refer to s. 493.2 of the Code.[^21]

[51] As stated above, the Code was amended to give the court guidance on the principle of restraint. In particular, a justice shall give particular attention to the circumstances of an accused who belongs to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release [emphasis mine].

[52] The Crown concedes that the justice of the peace does not refer to this section of the Code. However, she says that the failure to refer to that section is not fatal; it was not an error that would have a material impact on the decision not to release.

[53] The accused is a young black man. There is no doubt that black men are overrepresented in the criminal justice system.

[54] It is not necessary for the justice of the peace to quote the section of the Code. However, I cannot find any reference to the principles set out in s. 493.2, even in passing. I cannot conclude whether an analysis of this section would have pushed the bail plan “over the line”. Accordingly, I cannot conclude, as the Crown urges me, that the lack of reference to this section was immaterial.

[55] On that basis, I find that the justice of the peace made an error in law which grants me the authority to review the detention order.

Has there been a material change which would permit a review of the detention order?

[56] If I am wrong in concluding that there has been an error in law or principle, this court has the jurisdiction to review a detention order if there has been a material change.

[57] As part of the bail plan submitted at the bail hearing, the applicant proposed that each his mother and sister pledge $100,000 and each deposit cash in the amount of $25,000. In this hearing, the applicant proposes to add his brother-in-law, father-in-law, and mother-in-law as sureties. The amount of the pledges from these three individuals is $25,000, and the amount of cash deposit is $10,000.

[58] The applicant states that, had the court been aware of these additional sureties, the outcome at the hearing would have been different.

[59] Whether the addition of sureties constitutes a material change has been the source of controversy. On one hand, a “reshuffling” of the sureties is not sufficient to establish a material change.[^22] Furthermore, the applicant should not be permitted to “throw new things at the wall” in order to secure release.[^23] On the other hand, “[t]he material change in circumstances paradigm is not to be so narrowly applied so as to foreclose any periodic review of the detention status.”[^24]

[60] The issue of what constitutes a material change was reviewed in St-Cloud.[^25] The court determined that the four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759 are relevant. The court cautioned that the reviewing judge must be flexible in applying these four criteria. The criteria are:

a. due diligence. The reviewing court should determine the reason why the evidence was not tendered at the release hearing and permit the evidence if it is truly new or not tendered for some reason that is legitimate and reasonable; b. relevancy. The evidence does not need to be decisive and it will suffice if the evidence is relevant. “Relevant” will be defined broadly; c. reliability. The evidence must be reasonably capable of belief, interpreted in light of the relaxation of the rules of evidence at the bail stage; d. significance. The new evidence must be such that it is reasonable to think, having regard to all of the circumstances, that it could have affected the balancing exercise. The new evidence must therefore be significant.

[61] Applying the Palmer criteria to this case, I find that the addition of new sureties is relevant, capable of belief and may have affected the balancing exercise.

[62] However, there is nothing that I can find in the record that explains why these sureties were not tendered at the original bail hearing. Their relationship with the applicant predated the hearing. There was no suggestion that the proposed new sureties changed their minds over the last 300 days. In fact, no reason was suggested as to why they were not presented at first instance.

[63] For this reason, I decline to find a material change in circumstances.

The Bail Hearing De Novo

[64] Having found an error in law or principle, I now move to the portion of the hearing in which I considered the bail hearing de novo.

a. Evidence

[65] In addition to considering the evidence arising from the original hearing, I received the affidavit of Leaf Watson. She is the sister of the applicant. She is 28 years old. She has no criminal record. She understands her role as a surety. In addition to her pledge and cash deposit, she is prepared to supervise the applicant, and take an active role in knowing what the applicant does with this time and who he is with. She states that she has no difficulty contacting the police if the applicant does not abide by even one of his conditions.

[66] She deposed that while she works 40 hours a week, there are no set hours or set days of the week that she works.

[67] Financially speaking, she earns approximately $96,000 a year as the general manager of a retail store. Together with her mother, she owns a home known as 920 O’Reilly Crescent, Shelburne, Ontario. She obtained a letter of opinion from a real estate representative estimating the value of the home between $1.1 million and $1.3 million. The Service Ontario partial register for the property was produced. This shows a first mortgage of approximately $570,000. In addition, there are further charges totaling $265,000, some of which constitute their cash deposit.

[68] The Crown did not cross-examine Ms. Watson.

[69] In summary, I am satisfied that the pledge is reasonably capable of recovery. I am satisfied that she is a very sufficient surety. Her work commitments are such that she has a certain degree of flexibility to assist her mother as a surety.

[70] The next witness was Susanne Cary, the mother-in-law of the applicant. She is 61 years old. She does not have a criminal record. She lives with her husband at her residence in Spring Bay, Ontario. She is a retired interior designer. She does not have a fixed annual income and is supported by investment funds held in Kenya and the United Kingdom, totaling $60,000 per year. She and her husband estimate that their property is worth $800,000. It is free and clear. She and her husband also own a house in Woodstock, Ontario.

[71] Ms. Cary was an impressive witness. She described the applicant as an integral part of the family. She is aware of the charges and the particulars of the charges. She is part of a “Whats App” group that has been created to keep the various proposed sureties up-to-date as to the applicant’s situation. When needed, she is prepared to supervise the applicant, with her husband, at her residence. When needed, she is prepared to “come south” to monitor the applicant. If the applicant’s mother and sister are unavailable, she is prepared to have the applicant “brought to the island”, being her residence. While she does not like to “control” her adult children, she is aware that her behaviour must be adapted in her role as a jailer.

[72] On the second day of the hearing, I heard from Robert Cary, Susanne’s husband. He came to Canada in 2020 and is a permanent residence. He has income of approximately $75,000 per year from commercial properties and a family trust. Likewise, he is prepared to fulfil his role either at his residence or any other residence required. He is aware of the charges and the particulars of the charges.

[73] Of interest, Mr. Cary was questioned about the Internet coverage available at his residence. He described the coverage as “poor.” He is prepared to install a device known as a “beacon” to boost coverage to ensure that any ankle monitor has conductivity.

[74] As his wife, Mr. Cary was also impressive. He sees himself as part of a supervision “team”. While technology might not be his strong suit, he has become aware that he needs to ensure that the applicant has no access to electronic devices. He was abundantly clear that he would give the applicant no “chances”; in other words, if he determined there was a breach, he said he would call the police, instantly.

[75] Lastly, I heard from James Kiguru. The primary purpose of James being part of the “team” is that he would accompany the applicant on any travels between the applicant’s residence and the home of Susanne and Robert. While he does not have a full driver’s licence, he would accompany the applicant to ensure coverage during the trip. In terms of his $5,000 pledge, he works full time as a customer service representative and earns $52,000 per year. He currently has $27,000 in savings.

[76] I should also note, in passing, that neither witness was aware of the applicant’s alleged connections to criminal activity. However, these sureties should not be subject of what has been described as “catch-22” reasoning.[^26]

[77] I also received two documents:

a. an email from Recovery Science Corporation, the entity responsible for the ankle monitoring devices. The email confirmed that the Spring Bay cell service can be expected to be poor. Under those circumstances, the email confirmed that the surety would have to install a secondary “beacon”; b. an email from the Southwest Detention Centre. The applicant has been in detention for over 300 days. The email confirmed that the applicant does not pose any safety or security issues.

[78] As stated earlier, I reviewed the transcript from the original bail hearing. I reviewed the evidence of the applicant’s mother, Ms. Clark. She testified:

a. she is a widow; b. she co-owns her residence, with her daughter, located at 920 O’Reilly Crescent, Shelburne Ontario; c. she has been employed for 22 years. She is the site supervisor for the March of Dimes. She earns approximately $100,000 per year. She works from home, except for two days per week [and Ms. Watson can “cover” for her on those days]; d. she has training with regard to assisting assaulted women and children; e. she has had a youth foster placement for two and half years through the Children’s Aid Society.

b. The application of the Code

[79] In applying the evidence to the judicial release provisions of the Code, I am again reminded that the applicant is a member of a portion of society that is overrepresented in the criminal justice system. I am also reminded of the reverse onus provisions. I will not repeat the other principles of law that apply.

[80] I turn now to the primary ground. Is the continued detention necessary to ensure the applicant’s attendance in court?

[81] The applicant is a young man facing a very significant period of incarceration. Trafficking cases, in particular, raise concerns with regard to absconding. Importers and traffickers have access to funds and sophisticated organizations[^27]. The applicant does have a history of travelling to Chicago and Florida. He does not have significant financial ties to Ontario. He says that he supports himself through self-employment. All of this raises concerns.

[82] That being said, the right to pretrial release remains available even to sophisticated drug traffickers.[^28] The primary ground cannot be reviewed in a vacuum: the question is whether the bail plan proposed, [as modified by this court], sufficiently addresses the primary ground. I completely agree with the justice of the peace when she characterized the sureties as sincere, responsible and respectable. When coupled with a strict plan, including GPS monitoring, I am satisfied that the primary ground is addressed. With proper terms in place, the applicant is not “un-releasable” on this ground.

[83] In summary, I conclude that the applicant has discharged his onus. He has established that his continued detention is not necessary to ensure his attendance in court.

[84] I turn now to the secondary ground. Is detention necessary for the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood the applicant will, if released, commit a criminal offence or interfere with the administration of justice?

[85] I am aware that the applicant was found in possession of drugs three months after the truck driver was arrested at the border with a shipment to be delivered to a unit with which the applicant is connected. But the focus on this ground relates to future, not past, criminal activity[^29].

[86] The applicant is accused of a crime that he cannot commit on his own; he must be part of a larger organization. I cannot foresee that any organization would choose to engage with the applicant at this time. At this point, he must be “radioactive” in that context.

[87] I also point out that the bail plan requires that the applicant have no access to cell phones or the Internet. He must be at his mother’s residence, or in the presence of a surety, at all times. He is subject to GPS monitoring. I recognize that GPS monitoring is more of a risk management tool than a crime prevention tool.[^30] However, when combined with the quality of the sureties, the GPS monitoring will substantially reduce the likelihood of further offences.

[88] Is there a substantial likelihood that the applicant will commit a different crime, or interfere with the administration of justice? The applicant has no criminal record. No firearms were seized. The sureties described the applicant as a person not prone to violence at all. This was supported by the Southwest Detention Centre.

[89] Accordingly, I conclude that there is not a substantial likelihood that the applicant will commit a criminal offence while on conditional release. The applicant has discharged his onus on this ground.

[90] I turn now to the tertiary ground. While the previous grounds relate to an assessment as to whether the accused will behave in a certain way, the tertiary ground is not concerned with the accused behaviour, but rather with perception.[^31]

[91] Before I identify the various circumstances, both enumerated and not, I should state the one very distinguishing factor in this case. The quantity of drugs involved in this case has been characterized by the Crown as “staggering”. I agree. At the bail hearing, the value of the drugs was conservatively estimated at $5 million-$6 million. The drugs seized were very dangerous.

[92] We are not dealing with a person accused of “street-level” crimes. He could not have done this by himself. It is not clear how high he is in the organization, but he must be near the upper end, it appears. Furthermore, the quantity indicates that the applicant had experience in drug importation or distribution prior to arrest; one does not start at this level.

[93] Would a reasonable person conclude that interim release is appropriate under the circumstances? This question is not lost on me; not at all.

[94] Applying the enumerated sections of 515(10)(c):

a. without a doubt, the Crown’s case is strong. I acknowledge that the importation charge is circumstantial. But there is much evidence facing the applicant. It was his jacket and prescription bottle found at the unit for which the shipment was directed. His email is tied to the unit. He was found with similar distribution and packaging materials. The importation charges aside, the applicant was arrested driving a U-Haul with over 120 kg of cocaine and over 100 kg of methamphetamine was found at his residence. As stated above, no defence has been proffered, at least at this time; b. the offence is grave. The Code permits a life sentence; c. there was no firearm found. There were no violent circumstances surrounding his arrest. That being said, the drug trade is one that requires violence to operate. The violence simply was not apparent at the time of the arrest; d. as stated above, the applicant faces a serious prison sentence. His counsel did not strongly object to the Crown suggestion of a sentence of some 15 years. This is not a situation where a presumptively innocent applicant is detained in custody “to the equivalency or beyond the term of what would be a fit sentence under the Code if convicted”.[^32]

[95] In summary, the enumerated circumstances favour continued detention.

[96] While it has been described as “rare”, detention on the tertiary ground alone may be justified.[^33]

[97] As stated above, however, the Code requires me to consider all of the circumstances. As stated in Blind v. R. para 15, this court “…must not become so focused on the gravity of the offence and the strength of the Crown’s case as to overlook that there are no categories of offences for which bail is not a possibility.”[^34]

[98] To repeat what has been summarized above, the applicant does not have a record or any other outstanding charges. He does not have a history of breaching any court orders. The applicant has support of family, sureties that are strong and can provide round-the-clock supervision, and sureties who not only pledge and deposit significant sums, but also would not hesitate to contact the police in the event of a breach.

[99] Reference must be made to the bail plan. The terms to be imposed are very strict. His travel is restricted and can only take place while accompanied by a surety. He will not be permitted to operate any communication devices, except as monitored by the surety. He will be wearing a GPS bracelet to shore up the sureties.

[100] Turning to the ultimate question: has the applicant established that his detention is not necessary to maintain confidence in the administration of justice, or would public confidence in the administration of justice be undermined, if a reasonable member of the public, informed of the presumption of innocence, aware that pretrial custody should not be a pre-conviction sentence, aware of the strict bail plan was advised of the pre-trial conditional release? I do not believe so. The applicant has discharged his burden and his continued detention is not required.

Disposition

[101] In my view, this case requires heavy supervision by the surety.

[102] Accordingly, the applicant shall be released under the following plan:

a. every Friday between 8:00 a.m. and 4:00 p.m. report to the RCMP Toronto Airport detachment at 255 Atwell Drive, Etobicoke, or any other detachment acceptable to the Crown; b. he shall reside with his mother [Rosalie Clark] at her residence, 920 O’Reilly Crescent, Shelburne, Ontario. At all times, he shall abide by her rules of the residence; c. in the event that one or more sureties are unable to reside at the O’Reilly residence, the applicant may reside at 209 Perivale Road West, Spring Bay, Ontario [the residence of Susanne and Robert Cary] subject to all of the conditions of the O’Reilly residence, provided that the sureties install all necessary devices to permit connection with the GPS monitoring device described below; d. the applicant shall remain at the O’Reilly residence at all times except for: i. medical emergencies involving the applicant, his spouse, children, parent or sibling; ii. for the purposes of travelling directly to or from court appearances or scheduled meetings with your lawyer for the purposes of complying with this or any other court order; iii. when in the company of one or more sureties, not to exceed more than four hours per week, (unless travelling directly to the residence of another surety requires travel of greater than four hours); e. the applicant shall not be permitted to have any adult guests at the O’Reilly property; f. the applicant shall deposit his passport or all other travel documents with the designate of the Crown, and will not apply for another travel document; g. not attend at any inter-provincial or international border crossing. h. do not contact or communicate in any way, directly or indirectly with such persons as a prosecutor may specify, or anyone known to him to have a criminal record or currently facing charges, or be within 100 m of any place where the applicant know the persons work, live or attend school except for Maria Kiguru in the presence of a surety, at the residence of a surety, except on March 10, 2024 at 9:30 p.m. for six hours at 44 Greenbrook Drive, York, Ontario, for the purpose of a wedding ceremony; i. not to possess any weapon as defined by the Code; j. that the applicant not be in possession of any communication device such as telephone, laptop, computer, etc., and that if he is required to operate such a device, the device be the property of a surety and his operation of the device be monitored by the surety; k. the sureties shall install password protection with regard to any Internet connection with their residence and shall not provide the applicant with the password information; l. he will remain in custody until a GPS monitoring device is applied and will be subject to the GPS monitoring by Recovery Science Corporation, along with the rules and protocols of RSC; m. the applicant will carry his bail papers with him if he leaves the residence and will present them on demand to any police officer; n. the applicant will present himself at the front door of his residence within five minutes of a demand by any police officer from any police force conducting a bail compliance check; o. at anytime that the applicant does not intend to reside at his mother’s residence, he shall provide the authority, as designated by the Crown with 24 hours of notice; p. the sureties shall be the five individuals listed in paragraph 6 of the applicant’s factum, in the amounts of pledge and cash as set out.

[103] For clarity, I have not permitted the applicant to leave a residence for the purposes of employment. From my review of the record, it is unclear whether employment is available at this time. There was a reference to the fact that the location of his last employment was the subject of a fire. Should the applicant provide further particulars as to any potential employment, that may constitute a material change.

[104] I am mindful that the applicant may consider these terms to be, in effect, “imprisonment in the community”[^35]. In fact, considering all of the circumstances of this case, that is precisely what this court is attempting to craft. It is only with this strict plan that the 3 grounds may be satisfied.

Original signed by Justice Jason P. Howie Jason P. Howie Justice

Released: Orally on March 8, 2024 Released: In writing on April 5, 2024

Footnotes

[^1]: The amended notice of application also sought a review under s. 525 of the Code. At the commencement of the hearing, counsel for the applicant withdrew that portion of his notice of application. This is a pure s. 520 review. [^2]: For the purposes of these reasons, I have combined grounds (i) and (iii) in my analysis. [^3]: Through inadvertence only, the applicant failed to list this last condition in his factum. I do not have the benefit of the precise wording but this summary provides the essence of the condition. [^4]: I conducted this hearing on a hybrid basis, hearing both the s. 520 portion and the de novo evidence. [^5]: Trotter, The Law of Bail in Canada, 3rd edition, Carswell, para. 1:20 [release 2, 10/2023, pages 1-49 and 1-50]. [^6]: I am mindful that this decision dealt with an application under s. 525 of the Code, not section 520. That being said, the principles apply. [^7]: R. v. St-Cloud, 2015 SCC 27, para. 139. [^8]: R. v. Brooks (2001), 153 CCC (3rd) 533 (Ont. S.C.), para. 45. [^9]: Reasons for Judgment, page 75. [^10]: Reasons for Judgment, page 76. [^11]: Reasons for Judgment, page 87. [^12]: R. v. Budge, [2012] O.J. 2538 (SCJ), para. 44. [^13]: , [1992] 3 SCR 711. [^14]: Reasons for Judgment, page 79. [^15]: Reasons for Judgment, page 85 and again at 86. [^16]: Reasons for Judgment, pages 86 and 87. [^17]: 2002 S.C.R. 64, at para. 30. [^18]: R. v. Silva-Stone, 2022 ONCA 222 at para. 60 and R. v. St-Cloud, para. 69. [^19]: R. v. Dang, 2015 ONSC 4254, at para. 58, cited with approval in R. v. Silva-Stone. See also: R. v. B.(A). (2006), 204 CCC (3rd) 490 (Ont. SC), at p. 501. [^20]: R. v. Dang, para 58. [^21]: See, for example, R. v. A.A., 2022 ONSC 4310. [^22]: R. v. Osmun, 2020 ONSC 3472. [^23]: R. v. Namcoo, [2021] O.J. No. 818, at para 16. [^24]: R. v. Ferguson, [2002] O.J. No. 1969 (SCJ) at para. 14. [^25]: St-Cloud, at paras 129-138. [^26]: R. v. Andre, 2022 ONSC 3662, para 79. Also, R. v. Hajrizi, 2021 ONSC 8417, para 16. [^27]: R v. Pearson, [1992] S.C.J. 99, para. 62. [^28]: R. v. Comrie, [2008] O.J. No. 14, para. 20. [^29]: R. v. Fleming, [2015] O.J. No. 4380, para 15. [^30]: R. v. Bailey, 2020 ONCA 315, para 24. [^31]: R. v. J.R., 2020 ONSC 1938, para. 21. [^32]: R. v. White, 2010 ONSC 3164, para. 10. [^33]: R. v. Gharibzada, 2020 ONSC 3353, para. 26. [^34]: Blind v. R. para 15. [^35]: R. v. Middleton, 2009 SCC 21, para 97.