Court File and Parties

Court File No.: CR-24-530-BR Date: 2024-12-06 Ontario Superior Court of Justice

Between: His Majesty The King And: Shawn Thompson, Defendant/Applicant

Counsel: C. Douglas, for the Provincial Crown J. Roos, for the Federal Crown E. Battigaglia, for the Defendant/Applicant

Heard: November 14, 2024

Section 520 Bail Review Judgment

Before: Carnegie J.

[1] The Applicant appears before this court seeking a s. 520 Criminal Code bail review. On October 15, 2024, a reverse onus show cause hearing was held and on October 17, 2024, the Applicant was detained in custody on the secondary ground. He was before the Ontario Court of Justice facing 5 Informations and 19 counts, for which due to subsequent disclosure and Crown review, have been altered as will be noted. The original charges included:

1. Information 24-23102022 – March 7, 2024: nine counts (six of which his is co-accused) including allegations of: i. s. 5(2) Controlled Drugs and Substances Act (‘CDSA’) – possession for the purpose of trafficking in cocaine; ii. s. 5(2) CDSA – possession for the purpose of trafficking in methamphetamine; iii. s. 5(2) CDSA – possession for the purpose of trafficking in hydromorphone; iv. s. 5(2) CDSA – possession for the purpose of trafficking in morphine; v. s. 92(2) Criminal Code (‘CC’) – possession of a prohibited device, a conductive energy weapon – to be withdrawn; vi. s. 117.01(1) CC – possession of a prohibited device while prohibited – to be withdrawn; vii. s. 811 CC – breach of peace bond, not to possess any weapons – to be withdrawn;

2. Information 24-23106439 – August 14, 2024: one count of break and enter into a dwelling house, contrary to s. 348(1)(a) of the CC – to be replaced by an allegation of being unlawfully in a dwelling house, contrary to s. 349(1);

3. Information 24-23106299 – August 16, 2024: two counts (as a co-accused), including: i. s. 5(2) CDSA – possession for the purpose of trafficking in crystal methamphetamine; ii. s. 5(2) CDSA – possession for the purpose of trafficking in fentanyl – to be withdrawn;

4. Information 24-23107684 – October 4, 2024: seven counts, including: i. s. 344(1)(a) CC – robbery while using a firearm; ii. s. 87 CC – pointing a firearm; iii. s. 267(a) CC – assault with a weapon, to wit a box cutter; iv. s. 91(1) CC – possession of a firearm without licence; v. s. 244.2(1)(b) CC – reckless discharge of a firearm; vi. s. 117.01(1) CC – possession of a firearm while prohibited; vii. s. 145(5)(a) – breach of release order, not to possess weapons;

5. Information 24-23107786 – October 4, 2024: two counts, including: i. s. 349(1) CC – unlawful in a dwelling house; and ii. s. 430(4) CC – mischief to property under $5K.

[2] Obviously, even with the noted charge withdrawals and amendments, the Applicant still faces serious charges. As I understand it, he now presently faces 5 Informations and 15 charges, with one further charge to be amended. He has been in custody since his arrest on October 10, 2024.

Positions of the Parties

[3] The Applicant seeks his release arguing that it was not justified within the meaning of s. 515(10) of the Code. He is suggesting that a material change in circumstance has manifested given production of intervening disclosure and as a result of a number of charges that have since been or are anticipated to be withdrawn or amended. He further argues that the presiding Justice of the Peace committed various errors of law which merit this court’s assessment and release reconsideration, including:

1. a failure to apply the s. 11(e) Charter right to bail;
2. a failure to find that detention was necessary based upon a substantial likelihood of re-offending that would endanger the protection or safety of the public or interfere with the administration of justice; and
3. a failure to consider significant frailties in the Crown’s case.

[4] The present altered plan of release, which he argues is more stringent, proposes a residential surety with a “friend” in Grand Bend, away from the influences in Parkhill, Ontario. A strict curfew or house arrest is invited, with the potential for GPS monitoring.

[5] While both the provincial and federal Crowns take issue with the error of law complaints, they concede that a material change in circumstance has occurred since his detention, caused primarily due to the disclosure receipt and production and the further screening and reduction in outstanding charges. This permits a reconsideration of his release. However, they argue that the totality of present allegations, the Applicant’s history and conduct while on judicial interim release and the absence of a convincing plan of release to mitigate secondary ground concerns merits a continued detention order.

Factual Background

Allegations before the Court

[6] I will briefly summarize the allegations on this evidentiary record, noting new evidence revealed since the Applicant’s show cause hearing.

[7] At the time these circumstances began, the Applicant was already bound by a release order dated June 6, 2023, related to property offence allegations. The terms of his release included house arrest for his Parkhill, Ontario, home and GPS monitoring terms.

March 7, 2024, allegations

[8] In the fall of 2023, police learned that the Applicant was dealing drugs from his home in Parkhill, Ontario. An investigation commenced culminating on March 7, 2024, when a s. 11 CDSA search warrant was executed at the Applicant’s residence in Parkhill, Ontario. Both he and his female co-accused were located inside the residence, in a bedroom. As a result of the search, throughout the residence (including the bedroom) police found 169 pills of hydromorphone, 53 pills of morphine, 9.43 grams of cocaine and 3.53 grams of methamphetamine. Also seized were drug paraphernalia including packaging materials, debt lists, a large quantity of Canadian currency and digital scales. Police further located a Skidoo snowmobile which had been reported stolen on November 27, 2019.

[9] Also at the residence, police seized what was then believed to be a conductive energy weapon within the bedroom, within the co-accused’s purse. The provincial Crown has since learned that upon analysis the conductive energy weapon does not meet the definition of a prohibited device in the Code. The Applicant was then the subject of a court ordered weapons prohibition, a term of his release order prohibiting weapons possession and a peace bond with a term prohibiting weapons possession. As noted, the weapon and associated breach charges are to be withdrawn.

August 14, 2024, allegation

[10] On August 14, 2024, the Applicant was charged with a single count of break and enter into a dwelling. On that date at 4:42pm, police were dispatched to a break in report. Police reviewed surveillance video footage and, based upon earlier dealing that day, were able to recognize and identify the Applicant as the suspect.

[11] On August 25, 2024, police located and arrested the Applicant at his residence in Parkhill with his surety, not where he was required to reside at his surety’s residence in Ailsa Craig, Ontario. Regardless, he was released on an inconsistent Undertaking to reside at his Parkhill residence.

[12] The provincial Crown now intends to proceed with an unlawfully in a dwelling charge respecting this matter, contrary to s. 349(1) of the Code.

August 16, 2024, allegations

[13] On August 16, 2024, police responded to an impaired driving complaint at 8:53am in Parkhill, Ontario. Police found the suspect vehicle in the driveway of the Applicant’s Parkhill residence. A female co-accused was in the driver’s seat, the Applicant was in the front passenger seat. Police learned that the driver was wanted in Sarnia, Ontario, for a robbery. A search incident to arrest revealed a stolen watch, 52.6 grams of suspected methamphetamine and 7.6 grams of suspected fentanyl. Also located was a scale, baggies and several cell phones. Both were arrested for possession for the purpose of trafficking in suspected methamphetamine and fentanyl. However, upon Health Canada analysis, no fentanyl was detected and the total sum of methamphetamine was found to be 7.6 grams. The federal Crown intends to withdraw the fentanyl related s. 5(2) CDSA charge.

[14] Again, the Applicant was found at his associated Parkhill, Ontario, residence. He was not at his release order residence in Ailsa Craig, Ontario.

October 4, 2024, allegations

[15] On October 4, 2024, two complainants attended the Main Street Motel in Parkhill, Ontario. They were seeking lodging but were unable to secure a room. The Applicant approached them and offered them a place to stay at a nearby trailer for a fee. Prior to attending at the trailer with the complaints, the Applicant and one of the complainants attended at another Parkhill residence. The Applicant entered this residence through the rear door (apparently to use the washroom, uninvited) but causing damage to the door. He was charged with both unlawfully in a dwelling (for whatever reason) and mischief to property.

[16] Then, the Applicant took the complainants to the mentioned trailer and introduced the complainants to his friend. The complainants first went to the LCBO, then returned to the trailer and decide not to stay for the night. By then, the Applicant had left. The complainants texted him asking him to return their fee. They saw the Applicant’s friend message the Applicant by social media on a computer. The friend was told by the Applicant that he was back and to leave the trailer. The friend left the trailer as directed. When the complainants then attempted to leave, they were stopped at the door by two masked men holding box cutters and a firearm. The firearm was described as a “sub machine gun” styled firearm. One of the complainants immediately recognized the Applicant as one of the assailants based upon the bottom half facial mask revealing his “upper face”. He also recognized the Applicant’s voice and the footwear. One of the assailants fired the gun “beside” the complainant and slashed at his crossbody bag – which had their money, identification, bank cards and a small amount of marijuana inside – after the bag was demanded from them. Fearing for their safety, the complainants fled and contacted police. Police eventually located and arrested the Applicant at a Lambton County address on October 10, 2024 – again, not the Ailsa Craig residence wherein he was to be residing. Multiple weapons and breach of court order related charges are alleged.

[17] As part of new disclosure, the Applicant asserts that the identification evidence is weaker than originally reported for the show causing hearing. In particular, references to eye colour from the submitted Crown synopsis were not part of the complainants’ police statement. In response, the Crown referenced the statement proper wherein the complainant commented about the assailant’s eye colour: “I am pretty sure it was blue.” The Crown submits that the comment respecting eye colour is far from the alleged linchpin of the prosecution’s case. Given the proximity of dealings, he is confident one of the assailant’s was the Applicant.

[18] Further, a canvass of the trailer area included a statement from a witness who claims to have observed a black Toyota Corolla hatchback parked in the area – a vehicle she had seen before that she suspected of drug activity. On the evening of October 4th, she saw this vehicle, a male running from the area of the trailer and then saw the vehicle speed off. Police confirmed the Applicant has been associated to a 2019 black Toyota Corolla. As a result, police attended the Applicant’s Parkhill associated residence and found the black Toyota Corolla with its hood observed to be warm to the touch. An unknown person fled the rear of the residence. The Applicant alleges that recent disclosure references a truck, not a Corolla hatchback. He questions the quality of this identification evidence. The Crown responds that the witness statements do not reference seeing a truck, simply that the vehicle sounded like a truck.

[19] As I commented to counsel, I am not sitting as a trial court and the bail review is not intended to get granular into factual inconsistencies. Suffice it to say, the identity issue respecting the second October 4, 2024, allegations are a live and contested issue. Of course, I am always mindful of the general frailties of eyewitness testimony, brought home by numerous inquiry findings and the experiences of this court in general. They are factored into my assessment of the strength of the Crown’s case in general.

[20] At the time, the Applicant was the subject of release order, Criminal Code weapons prohibition and peace bond order prohibiting his possession of any weapons or firearms.

The Applicant’s criminal history

[21] The Applicant’s criminal history commences in August 2023 through February 2024, totalling 7 findings of guilt, including:

1. August 14, 2023 – two counts of possession of stolen property over $5K;
2. August 15, 2023 – uttering threats; and
3. February 2, 2024 – possession of stolen property under $5K, possession of stolen property over $5K, break and enter, and breach of release order.

History of court proceedings

[22] The Applicant was detained in custody following a show cause hearing on March 19, 2024. However, on May 21, 2024, he was released on consent with his mother, Kristy Thompson, as surety. He was required to reside with his surety in Ailsa Craig, Ontario.

[23] As noted, the Applicant was released on Undertakings respecting the August 2024 allegations.

[24] When the Applicant was arrested on October 10, 2024, he was detained pending a reverse onus show cause hearing. The Crowns applied under s. 524 and were granted the cancellation of previous releases as part of his show cause hearing on October 15, 2024.

Bail detention ruling

[25] Fortunately, the Applicant’s bail hearing was heard relatively promptly after his arrest. The presiding Justice of the Peace detained him on the secondary ground. Having made a detention order respecting the secondary ground, he declined to consider the tertiary ground.

[26] As part of the secondary ground analysis, the presiding Justice of the Peace concluded that the proposed release plan, inclusive of a friend offered as a surety, was insufficient to mitigate his concerns on the secondary ground. The proposed surety was found to have very little knowledge about the Applicant’s day-to-day activities, work, or circumstances. He did not even know if and/or where the Applicant worked for a living – he believed it was none of his business. I note, as was suggested by the presiding Justice of the Peace, that this was not a glowing reference for a proposed civil jailer. The proposed surety resided at the Applicant’s associated residence for about a month – a building owned by the Applicant’s mother, where he rented a room. He expressed reluctance to check up on the Applicant re indicia for drug activity concerns. So, at its essence, the plan involved the Applicant moving right back to his status quo in Parkhill, with a fellow room renter as surety, and an evening curfew.

[27] Therefore, that the presiding Justice of the Peace concluded that this proposed release plan “has not presented a coherent, cogent plan whatsoever…I don’t find him a satisfactory surety whatsoever” was, by my reading of that proceeding, a self-evident and an entirely appropriate conclusion. That release plan, with that proposed surety who was “not a foundation stone to build a plan of supervision” upon could not reasonably have mitigated the Applicant’s found secondary ground risk.

The bail review release plan

[28] The Applicant now proposes a “more stringent supervisory plan” with the following features:

1. a residential surety, Ms. Haggarty, who is a “friend” of the Applicant now residing on her own in Grand Bend, Ontario and willing to pledge $20K;
2. a “strict curfew” or “house arrest” condition; and
3. GPS monitoring, if directed by the court.

Legal Framework

[29] The scope and purpose of a s. 520 bail review was clarified by the Supreme Court in R. v. St-Cloud:

On the basis of the wording of ss. 520 and 521 Cr. C., a comparison with other review provisions and with sentence appeals, and the nature of the decision being reviewed, I conclude that these sections do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must therefore determine whether it is appropriate to exercise this power of review.

It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. [1]

[30] In R. v. St-Cloud, the new evidence admissibility standard for a “material change in circumstance” was defined as including a minimal due diligence consideration respecting the first proceeding, a relevancy assessment bearing on a decisive issue in the s. 515(10) analysis, that the proposed evidence is credible or reasonably capable of belief, and that it must, if believed, be reasonably capable of affecting the balancing exercise engaged in by the court. [2] Once a material change in circumstance has been established, the reviewing judge can then re-engage in the balancing of the factors in s. 515(10) to determine whether the detention of the applicant is “still justified”.

[31] As noted in R. v. Ferguson, Justice Hill noted in the context of a s. 520 bail review that simply proposing a new surety(ies) will not amount to a material change in circumstance. It is 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 for detention.” [3]

Analysis

Material change in circumstances

[32] The Crown has globally conceded that the terrain has shifted since the bail hearing, and, as a result, they concede that a material change in circumstance has occurred. Their concession is well founded.

[33] As was noted by Justice Trotter in The Law of Bail in Canada, recognized examples of material changes in circumstances that are relevant to this matter before me, include:

1. the withdrawal of outstanding charges or the discharge on certain counts at the preliminary inquiry;
2. a reduction in the strength of the Crown’s case since the bail hearing;
3. the subsequent discovery of exculpatory evidence;
4. the availability of disclosure that was not available at the original bail hearing; and
5. the development of a new plan of release. [4]

[34] Here, as noted, both the provincial and federal prosecutors updated the court respecting the anticipated withdrawal of multiple charges that were before the bail court at first instance. As noted by the Applicant, disclosure since provided also identified more detail which was arguably inconsistent with the factual synopses identification evidence provided to the bail court relative to the robbery allegation. The Applicant also asserts that the new proposed release plan itself represents a material change in circumstance. These factors, individually and collectively, satisfy me that the Applicant has met his burden in establishing a material change in circumstance.

[35] As a result of this material change in circumstance, I will engage afresh with the balancing of factors in s. 515(10). Therefore, I do not need to scrutinize the various errors of law and principle raised by the Applicant as acceptance of any of them would, in effect, circle me back to this reconsideration starting point.

Is the Applicant’s detention still justified?

[36] The Applicant proposes a release plan that is, in many respects, largely consistent with that which was proposed at his bail hearing. The difference here, a suggested material change in circumstance, is the availability of a new residential surety away from Parkhill, Ontario (or his own home).

Secondary ground consideration

[37] I must now turn my attention to the secondary ground for detention consideration – simply stated, is there a substantial likelihood that the Applicant will commit a criminal offence or interfere with the administration of justice if released such that the protection or safety of the public, including the victim or any witness, would be put at risk? As noted by the Supreme Court in R. v. Morales, detention must be necessary for public safety, not merely convenient. [5]

[38] The Applicant was detained on the secondary ground at his bail hearing. After a recitation of the factual allegations, and commentary about their significance, the presiding Justice of the Peace concluded, simply, “So, to be quite clear, nature of the record, nature of the allegations, the court does have concerns on the secondary grounds.” While I find that court’s conclusion, upon my review of the totality of the circumstances, entirely reasonable, I concede that absent from that court’s reasons was a determination respecting the extent and nature of the risk posed by the Applicant. I will therefore address that issue.

[39] The evidentiary record makes plain that the Applicant poses a substantial likelihood of re-offending, if released, to the effect that the community’s safety would be adversely affected. Coming to this conclusion, I have considered the following factors:

1. the seriousness of the pending allegations for the court. The Applicant faces trafficking related offences involving serious, “hard drugs” who’s spread poses an inherent risk to the community. Further, the robbery and firearm related allegations are quite serious, and represent an escalation of the Applicant’s alleged risk to the community;
2. the quantum and repetition of the pending offences, all while under various release orders, including a release plan with his mother as surety. Since March 2024, the Applicant has accumulated five sets of new charges, while he was already under a release order for pending property matters in 2023. Further, a recurring theme is the Applicant’s return to Parkhill, Ontario despite residency requirements in Ailsa Craig, Ontario, with no apparent regard for his mother’s court-imposed surety liabilities;
3. precious little information respecting the nature of any issues that require intervention on the part of the Applicant which contribute to his risk of re-offending, any expressed acknowledgment or willingness to address them, or any active plan to do so; and
4. an escalating and recent criminal history including property offences and a prior breach of a judicial interim release order.

[40] I have also considered the overall viability of this secondary ground concern measured against the relative strength of the Crown’s case. While this consideration plays a role in the court’s assessment at this stage, it cannot, as was observed by the presiding Justice of the Peace, inspire me to, in effect, usurp the role of the trial court. A show cause hearing, and a bail review for that matter, is not the appropriate forum for an in-depth assessment of the evidence and its ultimately reliability. As I have noted, I must and am alive to the recognized frailties of identification evidence. Further, on drug related prosecutions, knowledge and control over the suspect contraband is always a live issue when a co-accused is also present, often informed largely by the search environment. All of this acknowledged, and appreciating the Applicant’s identified issues, the evidentiary record before me does not inspire reticence such that I must, to avoid obvious or apparent injustice, release a defendant.

[41] Having identified the risk, can the Applicant otherwise be released on the basis of a release plan that can mitigate these secondary ground concerns? If so, the Applicant’s recent history, represented by multiple sets of allegations, calls out for meaningfully and rigid community supervision and intervention, to adequately mitigate a real and substantial secondary ground concern. Having considered the plan proposed, mindful that the Applicant bears the burden to justify his release, I find that the latest plan proposed falls well short of that requirement for the following reasons:

1. the proposed surety has no history of supervision nor authority over the Applicant. Indeed, the substance of this background, I find, is largely related to her daughter’s connection to the Applicant, not her own. While she knows his mother better than him, she did not bother to learn of the circumstances of his mother’s recent surety experience and any surrounding concerns therefrom. She was content merely to assume that sometimes a non-parent is a better supervisor. It can be, for the purposes of a bail review, concluded that if the Applicant has not flourished under the supervision of a parent. As a result, more should be required for a newly proposed supervisor then the best of intentions and potential based hope;
2. the proposed surety does not have an adequate or even well considered plan to ensure bail compliance. Upon questioning the sufficiency of the filed surety affidavit, I permitted Ms. Haggarty, a 72-year-old retiree who just moved to a gated retirement like community, to be called during this hearing. I have considered her evidence and find her to be a well-intentioned mere acquaintance of the defendant. Her described “friendship” with the Applicant was overstated. Her motivation to give him a further opportunity to reform is naïve. Further, she is content to have the Applicant in her home but does not believe that she should be actively supervising him 24/7 so long as they are in the confines of Grand Bend. Her reliance upon getting him out of Parkhill – the apparent problem itself – misses the mark;
3. the lack of insight this surety has into the lifestyle and present circumstances of the Applicant is telling. She has only been recently made aware of his legal troubles, despite their significance and even so, her grasp of the particulars was vague. That she brushes the allegations aside because of her unqualified belief that he has been through a lot but is now ready to change may be laudable for a friend, but is not inspiring for a civil jailer; and
4. the proposed plan fails to address the Applicant’s rehabilitative needs. First, while the Applicant swears that he will comply with life skills counseling suggested by his proposed surety, he fails to acknowledge the need. Given his repetitive sets of allegations involving serious drug possession, if not trafficking, I would expect some acknowledgment from the Applicant and surety respecting like risk mitigation. Further, while the surety is aware of undefined counseling services in her community, she has not established an actual versus aspirational treatment plan for the Applicant, let alone one confronting the possibility of a drug addiction concern. Not highlighting this rehabilitative goal in the face of these allegations is telling and highlights the incapacity of this plan to address the real and substantial risk posed by the Applicant to the community at large.

[42] As a result, I find that the release plan proffered cannot sufficiently mitigate the risk posed by the Applicant’s release.

[43] On the Ferguson standard, I have concerns about the Applicant’s new release plan and the extent to which it offers meaningful improvement over the original plan proposed. While it offers the prospect of a more “stringent” supervisory regime, that appearance may realistically illusory. While the Applicant naturally has a constitutional right to reasonable bail, I fear his recent history belies his capacity to comply with community supervision, particularly from an acquaintance he has no vested interest in respecting. The Applicant was residing with and under the influence of a parent throughout this alleged offence cycle. I have no confidence that this new plan will offer any greater reassurance then the previous.

[44] I have also considered whether the imposition of a house arrest plan with GPS monitoring could tip the balance towards release. Unfortunately, I find that it cannot largely based upon the Applicant’s recent disregard for prior forms of release. It is important to acknowledge that electronic monitoring is not a direct preventative measure. In United States of America v. Pannell, [6] an extradition case, Nordheimer J. (as he then was), correctly observed that the system does not restrict the subject from breaching, it merely alerts the service provider of a breach. The Ontario Court of Appeal in R. v. JJ, [7] noted that GPS monitoring has been described as a risk management tool, rather than crime prevention tool. Therefore, GPS monitoring provides some increased level of certainty as some breaches will be detected relatively rapidly but does not prevent such non-compliance. Realistically, it acts as a deterrent to noncompliance. So, while electronic monitoring may assist the sureties, a plan of supervision is only as good as the sureties who monitor it and a defendant sufficiently deterred. Here, electronic monitoring will not replace the need for a good, effective, and dependable surety and release plan that, itself, can effectively inspire compliance. If the Applicant’s mother could not do so, I find Ms. Haggarty’s chances are remote.

[45] As a result, I find that despite the material change in circumstance, the Applicant’s ongoing detention from a secondary ground perspective remains justified.

Tertiary grounds

[46] With respect to the tertiary ground, the presiding Justice of the Peace elected not to make any findings, citing R. v. Kalashnikoff, [8] as authority for the proposition that “if I’ve made a detention order on the secondary grounds, I don’t need to do a tertiary grounds analysis.” [9] Unfortunately, that is not what Justice Pierce said in Kalashnikoff.

[47] In Kalashnikoff, the court was sitting as a bail review court. There, the presiding Justice of the Peace had detained the Applicant on all three grounds. However, on bail review, the court, citing new evidence, reconsidered the primary detention grounds but agreed with the secondary ground detention finding. Then, turning to the tertiary ground analysis, the court elected not to address its merits given the secondary ground detention confirmation: “Given the finding I have made on the secondary ground, it is not necessary to deal with the merits of the tertiary grounds.” [10] This is a common appellate practice, addressing only that which is necessary to determine the judicial review. However, a Justice of the Peace conducting a bail hearing is not sitting in judicial review. The appellate standard does not apply to a hearing at first instance. Regrettably, this misapprehension of Justice Pierce’s reasons led the presiding Justice of the Peace to dispense with a consideration of the tertiary ground.

[48] The Crown, here, also seeks the Applicant’s detention on the tertiary ground. While I agree that the presiding Justice of the Peace was in err by neglecting to conduct a tertiary ground analysis, the fact that this ground was not considered leaves me with nothing to review. The failure to address each detention ground advanced by the Crown frustrates the review process – a process that is at the heart of bail and detention reviews in ss. 520, 521 and 525 of the Code. One of the purposes of a bail review is to assess whether an err of law occurred within the presiding Justice’s analysis, not the fact that none occurred. By not addressing the Crown’s tertiary ground argument at first instance, when the evidence is best marshaled before the court, a bail review court is put in the difficult position of having to engage, independently, in a hearing de novo on the tertiary ground. That is inconsistent with the purpose and intentions for a bail review [11] but this circumstance leaves me with no other alternative.

[49] Here, without the benefit of a first instance determination, I am left to simply assess the evidentiary record based upon the record as it currently exists – its modification constituting an acknowledged material change in circumstance. While the remaining and intended offences remain serious, and conviction on them would result in a potentially lengthy term of imprisonment, likely within the penitentiary range, the strength of the Crown’s case is admittedly not what it was upon original bail hearing presentation.

[50] The contested issue, of course, is the “apparent strength of the prosecution’s case”. When assessing any tertiary ground issue, I must turn my attention to St-Cloud and the Supreme Court’s emphasis upon a reasonable member of the community who is properly informed about the philosophy of the legislative provisions, constitutional bail values, and the actual circumstances of the case. Bail is not precluded simply because each enumerated factor is met, let alone when three of four factors are satisfied. [12]

[51] Since the Applicant’s show cause detention, overall, the Crown’s evidentiary record has not improved. With particular respect to the most recent robbery allegation, beyond clear and highly suspicious opportunity, the Crown’s case will rise and fall upon the quality of their witness identification evidence. As I have noted, I am not in a reasonable position to assess its strength. A trial court will be best positioned for that task. However, appreciative of the general frailties of eyewitness identification, I am not prepared, on the recent and most serious of allegations, to support an overall tertiary ground detention premised, as it must be, upon a “strong” Crown case. Were it therefore determinative, I would not detain the Applicant on the tertiary ground.

Conclusion

[52] Having reconsidered the propriety of the Applicant’s detention, I find that, based upon the totality of all the allegations before me and the present circumstances, I am, pursuant to s. 520 of the Code, satisfied that the continued detention of the Applicant in custody is justified within the meaning of subsection 515(10) of the Criminal Code.

[53] On this enhanced evidentiary record, secondary ground concerns remain which are not reasonably attenuated by the newly proposed release plan. I believe that a reasonable, fair minded community member, aware of all the circumstances, the Applicant’s criminal history, and yet mindful of the presumption of innocence and the constitutional right to reasonable bail, would not lose faith in the justice system faced with an affirmation of the Applicant’s continued detention.

[54] As a result, the Applicant’s s. 520 bail review application is dismissed.

Released: December 6, 2024 M. B. Carnegie

Citations

[1] R. v. St-Cloud, 2015 SCC 27, [2015] 2 SCR 328 at paras 120-121 [2] Ibid, at paras 128-129. [3] R. v. Ferguson, [2002] OJ No 1969 at para 17 [4] Mr. Justice Gary Trotter, The Law of Bail in Canada, 3rd Edition (Toronto, ON: Thomson Reuters, 2023) at 8:15.50. [5] R. v. Morales, [1992] 3 SCR 711 at para 39 [6] United States of America v. Pannell, [2004] OJ No 5715 [7] R. v. JJ, 2020 ONCA 280 at paras 24-27 [8] R. v. Kalashnikoff, [2004] OJ No 113 (SCJ) [9] Transcript of Bail Hearing judgment, October 17, 2024 at p 33. [10] Kalashnikoff, supra, para 28. [11] St-Cloud, supra at para 94 and 118: “the reviewing judge is not in a better position than the justice to evaluate whether the detention of the accused is necessary. In addition, the reviewing judge has, in relation to the justice, no special expertise with respect to release.” [12] Ibid, supra at paras 69-70.