SUPERIOR COURT OF JUSTICE – ONTARIO
10 Louisa Street, Orangeville ON L9W 3P9
RE:
HIS MAJESTY THE KING
AND:
JANCY MUKUNZI
BEFORE:
Justice M.G. Emery
COUNSEL:
R. Levan, for the Crown Email: Robert.levan@ontario.ca
D. Paradkar, for the Accused Email: criminal_lawyer@me.com
HEARD:
June 17 and July 10, 2024 by videoconference
REASONS FOR DECISION ON s. 525 BAIL REVIEW
1Jancy Mukunzi is charged with several offences, some involving allegations that he possessed a firearm. He has been held in custody since the detention order made by Justice of the Peace Farnand on January 29, 2024. His counsel, Mr. Paradkar, brings an application for a detention review under s. 520 of the Criminal Code. Mr. Mukunzi is also up for a 90-day review under s. 525.
2Mr. Levan for the Crown and Mr. Paradkar for the defence agreed that the hearing may proceed on a blended basis as a bail hearing de novo as though it was a 90-day review.
3The detention review proceeded as scheduled on June 17, 2024, in Orangeville. On July 10, 2024, Mr. Mukunzi and counsel appeared before me for judgment on the review. I ordered that Mr. Mukunzi be released from custody pending trial on strict terms and conditions, for reasons to follow. These are those reasons.
The charges
4Mr. Mukunzi faces nine charges under the Criminal Code:
Count 1: Possession of stolen property over $5,000 – s. 355(a);
Count 2: Unauthorized possession of a prohibited or restricted firearm – s. 91(1);
Count 3: Possession of a prohibited device or ammunition – s. 92(2);
Count 4: Possession of a prohibited devise or ammunition – s. 92(2);
Count 5: Possession of a loaded prohibited or restricted firearm – s. 95(1);
Count 6: Flight from a peace officer – s. 320.17;
Count 7: Possessing an automobile master key – s. 353(1)(b);
Count 8: Unauthorized possession of a prohibited or restricted firearm – s. 91(1); and
Count 9: Possession of a loaded prohibited or restricted firearm – s. 95(1).
The arrest
5P.C Kooy of the Caledon detachment of the Ontario Provincial Police observed a white Dodge Charger with licence plate number CXLR537 stopped at a red light on Mayfield Road at the Highway 410 exit ramp at 10:44 p.m. on January 1, 2024. The onboard Automatic Licence Plate Reader in his police cruiser alerted P.C Kooy that the white Charger was a stolen vehicle.
6P.C Kooy activated the lights of his cruiser to initiate a traffic stop. The driver of the Charger failed to comply with P.C Kooy’s attempt to stop the vehicle. Instead, the driver accelerated the vehicle’s speed to a high rate for approximately 33 metres. The operator of the Charger then turned south on to Dixie Road and lost control of the vehicle, striking a centre median and coming to a stop.
7P.C Kooy pinned the Charger in place to prevent a further attempt at evasion. Both the passenger and the driver exited the Charger from their respective doors and fled the scene on foot. The driver, later identified as Jancy Mukunzi, was apprehended on Dixie Road. The passenger, later identified as Marvin Dubois, ran into an eastbound field before being caught.
8When police inspected the interior of the Charger, they found a flat dark earth coloured Glock handgun in plain view on the front passenger seat. The firearm was retrieved and proven safe. It was loaded with one round in the chamber and had a full 17 round magazine inserted. This firearm also had a full auto select switch attached to the rear of the slide.
9After Mr. Mukunzi and Mr. Dubois were taken into custody, the Charger was sealed and transported to a secure impound at the Caledon OPP detachment.
10On January 2, 2024, both Mr. Mukunzi and Mr. Dubois were remanded in custody.
11At 11:40 p.m. on January 2, 2024, Peel Regional Police contacted the Caledon OPP to advise that additional evidence had been located in the vicinity where Mr. Mukunzi had been arrested the day before. Peel Regional Police advised that a civilian had observed a black jacket in the immediate area. When the civilian had reportedly lifted the jacket, he or she had observed a black handgun. The civilian then called the police immediately.
12Caledon OPP seized the black jacket in which a blank motor vehicle master key and a black Smith and Wesson handgun were found. The handgun had a live 9mm round in the chamber with no magazine inserted. The key fob was tested by officers, and it was found to unlock and to lock the white Charger entered at the police impound the day before. All items seized at the vicinity of the black jacket on January 2, 2024, are believed to have been in the possession of Jancy Mukunzi prior to the time of his arrest on January 1, 2024.
13Mr. Mukunzi was subsequently charged with the nine offences he faces on the evidence uncovered by police. Mr. Dubois was also charged on a separate set of charges. They were each held over in custody for a bail hearing.
The Mukunzi bail hearing
14Mr. Mukunzi appeared before Justice of the Peace Farnand for a bail hearing in Orangeville on January 29, 2024. Her Worship remanded Mr. Mukunzi in custody on the tertiary ground, most likely because of the reverse onus under s. 515(6) on an accused charged with possession of a gun or firearm to show why that person ought not to be detained.
15For sureties, Mr. Mukunzi proposed Amanda Houngue and Camille Peters. Both gave evidence that they each have a close relationship with the accused. Mr. Mukunzi has had a child with each of these individuals. Justice of the Peace Farand was concerned that these sureties would not exercise the same supervision over him that the father in R. v. IM, 2021 ONSC 692 would exercise over the son in that case. The Justice was also troubled by what she considered to be credibility issues with Ms. Houngue’s evidence.
16Mr. Mukunzi now proposes a new release plan in which his father, Cyrille Mukunzi, is offered as a surety. Mr. Mukunzi Sr. is a correctional officer at Madawaska Regional Correctional Centre in Saint Hilaire, New Brunswick. Jancy Mukunzi would live with his father in New Brunswick pending trial. Mr. Mukunzi Sr. is in the business of ensuring prisoner compliance and is equipped with the skills and discipline to ensure his son abides by any release conditions. He is also ready to pledge security as a surety in the amount of $20,000, with $18,000 to be deposited in cash.
17Ms. Peters is also prepared to serve as a surety. She has an interest in keeping Mr. Mukunzi out of trouble as they have a child together, and she is financially dependant on him. Ms. Peters is willing to pledge $5,000 as a surety, with a cash deposit of $2,000. This amount represents all of her savings.
18Jancy Mukunzi is currently 23 years old. He has a criminal record, but no convictions for gun related offences. His record shows he has been found guilty in the past of a mischief charge and several failures to comply charges reaching back to 2020 and 2021.
19At the time of the detention review, Jancy Mukunzi had been held in pre-trial custody for 168 days.
Analysis
Guiding principles
20Mr. Mukunzi seeks judicial release pending his trial under s. 525 of the Criminal Code on the basis that his release plan provides the assurance to the court that his continued detention is not justified under the factors set out in s. 515(10). He states that there is no need for the court to consider whether there has been a material change in circumstances since the Justice made the detention order. His counsel further submits that there is no concern he may re-offend or that his release will result in a loss of confidence in the administration of justice.
21In R. v. J.G., 2024 ONSC 307, Justice A.J. Goodman offers a detailed review of the proper approach to take on a bail hearing under s. 525. This review takes into account the guidance of the Supreme Court of Canada in R. v. Myers, 2019 SCC 18.
22Goodman J. concludes it is settled law that neither the Crown nor the defence has the onus on a review under s. 525 where a bail hearing was previously held by a Justice. He refers to the finding of Coroza J. (as he then was) in R. v. Pescon (unreported, March 16, 2020) to support this conclusion.
23Applying this approach, neither party has the onus to demonstrate that the continued detention of the accused is justified on a bail review under s. 525 where that accused has already had a bail hearing under s. 520 or 521. This does not, however, alter any reverse onus that may be imposed on an accused because of the specific nature of the offence under s. 515(6).
24The fundamental question for the court to answer on a hearing under s. 525 was framed by Wagner C.J. in para. 46 of Myers: Is the continued detention of the accused in custody justified within the meaning of s. 515(10)? The discussion of onus is an evidentiary question that simply relieves or places the burden on one party or the other to satisfy the court when answering this question.
25In R. v.St.-Cloud, 2015 SCC 27, Wagner J. (now the Chief Justice of Canada) reiterated the fundamental principles of the presumption of innocence and the right to reasonable bail (unless there is good cause to order otherwise) under ss. 11(d) and (e) of the Charter. At paras. 69 and 70, Wagner J. wrote as follows:
69Moreover, the automatic detention argument disregards the fact that the test to be met under s. 515(10)(c) is whether the detention of the accused is necessary to maintain confidence in the administration of justice. The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination. The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.
70Finally, 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: Morales, at p. 728. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s.11(e) of the Charter: Pearson, at p. 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s.11(d) of the Charter: Hall, at para. 13. These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.
26The decision of Trotter J. (as he then was) in R. v. Dang, 2015 ONSC 4254 related the strength of an accused person’s release plan to the tests for detention under s. 515(10)(b) or the application of the tertiary ground under s. 515(10)(c). At para. 58 of Dang, Trotter J. stated:
58An accused person’s plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released: see R v. B.(A.) (2006), 2006 CanLII 2765 (ON SC), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 501. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c. 1) to s.29(2)(c) of the YCJA. 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. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).
Principles applied
27The standard of what is meant by the term “confidence in the administration of justice” in the context of considering the tertiary ground to determine an accused’s interim judicial release, is measured by the perception of a reasonable member of the public, dispassionate and fully apprised of the circumstances of the case. This would be a person who is familiar with the principle of the law and the fundamental values in our criminal law system. Those values would include the rights of an accused that are protected by the Charter, the importance of the presumption of innocence and the right to liberty without just cause for detention: St.-Cloud, at para. 78-80.
28On the submissions now advanced by the Crown that Mr. Mukunzi’s detention is justified on the tertiary ground, I make the following observations on the evidence under the primary factors listed in s. 515(10) (c):
a) Counsel for the parties did not make significant submissions on the apparent strength of the Crown’s case. However, possession of the firearms is an issue and if it is proven that Mr. Mukunzi had knowledge that the Charger was stolen or that he had possession of one or both firearms, the case of the Crown is relatively strong.
b) The charges of possessing a weapon, a stolen vehicle and master key are serious offences taken separately, and even more so on a cumulative basis. The gravity of these offences cannot be overstated;
c) The circumstances of the offences with which Mr. Mukunzi is charged cannot be assessed at this time. Mr. Mukunzi is presumed innocent unless and until proven guilty beyond a reasonable doubt. It should not be forgotten that Marvin Dubois, the co-accused, has also been charged with possession of these articles; and
d) Mr. Mukunzi’s charges could result in a lengthy period of incarceration. According to the sentencing chart attached to the bail report, he could face a potential sentence of 3 to 6 years if he is convicted of all charges, less time served. See R. v. Dawkins, 2021 ONSC 4526, R. v. Mercury, 2022 ONCA 656, R. v. Morris, 2023 ONCA 816, R. v. Showbeg, 2023 ONCA 549 and R. v. Laughlin, 2024 ONCA 390 that show the range of possible sentences.
29Mr. Mukunzi puts forward a new release plan involving different sureties with higher amounts offered as security as the material change in circumstances required by R. v. St.-Cloud. If showing a material change on a s. 525 hearing is necessary, or just that a better plan is required to show that detention is not justified if more appropriate conditions are imposed, a change in sureties must constitute a significant difference to those proposed at the previous bail hearing and must not merely amount to a “re-shuffling” of the previous sureties: R. v. Ferguson, [2002] O.J. No. 1969, at para. 17.
30The law recognizes that new and improved sureties can constitute a change in circumstances: R. v. Baltovich, 2000 CanLII 5680 (Ont. C.A.) and R. v. Whyte, 2014 ONCA 268, at para. 25. To be considered material, a change in the circumstances of a case must be responsive to, and alleviate a flaw identified at the bail hearing to such a degree that it could have affected the result: St.-Cloud, at para. 137. This is the “responsiveness requirement” to determine the materiality of the change in circumstances.
31In R. v. Henry, 2020 ONSC 4196, Harris J. wrote at paras. 20 And 21 that the concept of reshuffling sureties that Hill J. coined in Ferguson must be understood in the full context of that discussion:
20Furthermore, in my view, a judge should exercise great care before dismissing a bail review on the basis of a perceived lack of due diligence in gathering and presenting sureties. Justice Hill’s judgment in R. v. Ferguson, [2002] O.J. No. 1969 (S.C.) is often used to buttress an argument against new sureties on review. Justice Hill said at paragraph 17:
As to the first point, the advancement of fresh prospective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.
21It has recently been held that Ferguson remains good law: R. v. King, 2020 ONSC 1935 at para. 50. With respect, I do not believe it is quite that simple. In my view Ferguson has often been taken well beyond its intended purpose and scope by the prosecution. The first two sentences in the quote above have been emphasized to the detriment of the all-important last sentence. They must be read together. Moreover, the Chief Justice in St. Cloud almost 15 years after Ferguson commented at length on this issue. With respect, attention must be paid the recent pronouncements of the Supreme Court in St. Cloud on the issue of due diligence and new sureties.
Decision
32This detention review under s. 525 was a close call. However, I find that Mr. Mukunzi has satisfied me that his continued detention pending trial is not justified when weighed against the terms of the release plan. Conversely, I find that the Crown has not shown that Mr. Mukunzi’s detention is necessary to maintain the public’s confidence in the administration of justice. He has been in custody for over eight months. While that time does not approach the potential sentence he could receive if convicted of the gun related charges, it is significant time out of his life if he is acquitted. The Myers case states that keeping an accused person in custody while waiting for trial is a last resort.
33I am persuaded that Cyrille Mukunzi can and will exercise the necessary supervision over his son under the proposed release plan. For the reasons set out by London Weinstock J. in IM about the father’s suitability as a surety in that case, I consider that Cyrille Mukunzi is a suitable surety and a strong component of the release plan here. Mr. Mukunzi Sr. brings his training and experience working in a correctional facility to supervise Jancy Mukunzi while on release, and to ensure compliance with the bail conditions ordered. Mr. Mukunzi has pledged a significant amount of money as security and will be required to deposit $18,000 of that security with the Crown. His presence as a surety and the other conditions outweigh any concern that releasing Jancy Mukunzi pending trial will have an effect on maintaining confidence in the administration of justice.
34I have imposed terms that will require Jancy Mukunzi’s good behavior while released, including a requirement that he reside with Mr. Mukunzi Sr. and Ms. Peters in Edmunston, New Brunswick pending trial. Having Ms. Peters as a surety provides further assurance that the accused will be a constant reminder of his responsibilities as a parent to live up to his moral obligations.
35I therefore accept that the release plan proposed by the accused Jancy Mukunzi contains the appropriate conditions for his interim release. Those release conditions strike the right balance under the principles set out in Myers, and the choice between release and detention that Trotter J. spoke of in R. v. Dang.
Order
36For those reasons, the accused Jancy Mukunzi has been granted interim judicial release pending trial, but on strict terms and conditions. Those terms are as follows:
a) His father, Cyrille Mukunzi, shall serve as a surety in the amount of $20,000, with a cash deposit of $18,000. Cyrille Mukunzi shall execute whatever documents required by the Crown to act as surety, if requested;
b) Camille Jeanne Peters shall serve as the second surety in the amount of $4,000, with a cash deposit of $2,000;
c) He shall reside with his father, Cyrille Mukunzi at his home at 18 Avenue St. Jean, Edmunston, New Brunswick E3V 1C8 (the “father’s home”). Jancy Mukunzi shall be confined to house arrest at that address until further order;
d) He shall not physically leave the father’s home unless accompanied by one of his sureties, and in any event, for no reason other than to attend counselling, a medical appointment or doctor’s care in a medical emergency, his lawyer’s office or to attend court;
e) He shall not possess, either personally or through another person, any firearm, pellet gun, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, or any weapon as defined by s. 2 of the Criminal Code or related authorizations, licences or registration certificates;
f) He shall not apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code;
g) He shall attend such counselling services as directed by any surety, and sign any necessary release; and
h) He shall provide all passwords for accessing his electronic devices to both sureties so that they can effectively monitor compliance with these terms or his release conditions.
37As conditions of his release, Jancy Mukunzi shall comply with the following requirements of s. 515(4) of the Criminal Code:
a) To remain within the City of Edmunston, in the Province of New Brunswick except as provided above, or for trial;
b) To notify the Crown of any change of address, employment or occupation;
c) To abstain from communicating in any way, directly or indirectly, with any witness who was present at the scene of the alleged offences, including but not limited to Marvin Dubois, subject to any order of the court;
d) To deposit his passport with the Crown’s office.
38Jancy Mukunzi is remanded out of custody to the Ontario Court of Justice in Orangeville, Ontario at 3:30 p.m. on November 14, 2024.
Emery J.
Released: September 25, 2024