Decision Content
R. v. Bode-Harrison, 2017 NWTSC 15 S-1-CR-2016-000108
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
DOLAPO BODE-HARRISON
__________________________________________________________
Transcript of the Decision on Bail Review delivered by
The Honourable Justice L. A. Charbonneau, sitting in
Yellowknife, in the Northwest Territories, on the 20th day
of January, 2017.
__________________________________________________________
APPEARANCES:
Ms. M. Zimmer: Counsel for the Crown
Mr. P. Harte: Counsel for the Accused
An Order of the Court has been made
prohibiting publication, broadcast or transmission
of information contained herein pursuant to s. 517,
520(9) and 525(8) until the trial has ended
Official Court Reporters
1 THE COURT: On December 19th, 2016, I
2 heard the Applicant's application for a review of
3 the decision that was made by a Justice of the
4 Peace on August 2nd, 2016, ordering that he be
5 detained pending his trial.
6 The Applicant has sought review of that
7 decision. He is also seeking release pursuant to
8 Section 525 of the Criminal Code. By operation
9 of Section 525, the Applicant was entitled, quite
10 apart from the bail review application that he
11 filed, to an automatic review of his bail. Both
12 hearings proceeded together.
13 I will first speak about the show cause
14 hearing that was held back in August because it
15 is an important part of what I had to examine in
16 my deliberations on this matter.
17 First, dealing with the allegations. The
18 Applicant faces a charge of conspiracy relating
19 to trafficking cocaine and possessing cocaine for
20 the purpose of trafficking. A number of other
21 individuals are charged with him of this count
22 and some of these individuals also face distinct
23 charges aside from the conspiracy charge.
24 The Applicant was charged as a result of a
25 major investigation which targeted a network that
26 was believed to be responsible for high-level
27 trafficking in the City of Yellowknife. During
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1 the course of that investigation, the RCMP
2 obtained an authorization pursuant to Part VI of
3 the Criminal Code to intercept and monitor
4 private communications of one Norman Hache. He
5 is one of the Applicant's co-accused. Through
6 these intercepted communications, police were
7 able to obtain evidence implicating Mr. Hache as
8 controlling a drug trafficking network and
9 conspiring to carry out this activity with a
10 number of people. It is alleged that the
11 Applicant is one of these people. The operation
12 involved planning to move drugs from southern
13 Canada up to the Northwest Territories for
14 distribution and resale.
15 At the show cause hearing held in August, a
16 number of those intercepted conversations were
17 played. They were conversations between
18 Mr. Hache and, it is alleged, the Applicant. In
19 this decision, I am going to refer to those calls
20 as calls between Mr. Hache and the Applicant
21 without using the words "alleged" each time, but
22 I do realize the Applicant does not concede that
23 he is, in fact, the person talking to Mr. Hache
24 during those intercepted phone calls.
25 I am not going to refer to the calls in
26 detail here because they are a matter of record
27 from the transcript of the proceedings before the
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1 Justice of the Peace. Suffice it to say that
2 those conversations suggest that the person
3 Mr. Hache was speaking to was above Mr. Hache in
4 the trafficking organization. And, again, I am
5 going to use "the Applicant" without using the
6 word "alleged". But if, in fact, he was the
7 person speaking to Mr. Hache, he was the one who
8 was coordinating the shipment of drugs from the
9 southern suppliers to Mr. Hache, and Mr. Hache
10 would in turn redistribute the drugs to be resold
11 in various communities in the Northwest
12 Territories. In some of the calls, the Applicant
13 is giving directions to Mr. Hache.
14 The quantities of drugs talked about in some
15 of those conversations are substantial and the
16 evidence suggests an organized drug trafficking
17 network and ongoing activities. There is
18 reference in some of the calls about how busy
19 things are getting as far as drug sales.
20 The intercepted conversations also include
21 discussions that took place shortly before a
22 delivery of drugs was to take place to someone in
23 Fort Resolution. That upcoming delivery is
24 discussed on the calls. Police had surveillance
25 on the residence and, after delivery, executed a
26 search warrant in the residence in question and
27 seized the drugs. This was in March 2016.
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1 Conversations intercepted between Mr. Hache
2 and the Applicant after the execution of that
3 search warrant show them discussing things like
4 "How could this happen?" and trying to figure out
5 who "ratted them out". The Applicant expresses
6 serious concern about owing money to his
7 suppliers, says on a number of occasions that he
8 is "fucked". There are subsequent conversations
9 between the two to the same effect.
10 If this evidence is admitted at trial and if
11 the Crown establishes that the person speaking to
12 Mr. Hache is the Applicant, it will establish
13 that the Applicant was the highest in the
14 hierarchy of those charged in relation to this
15 conspiracy.
16 The Applicant has a criminal record. He has
17 a number of Youth Court convictions starting in
18 1998 and then a series of convictions as an
19 adult. He has two convictions for simple
20 possession of drugs in 2003 and 2005. Both times
21 he received fines. He has a large number of
22 convictions for breaching Court orders between
23 1998 and 2003. There is a gap in his record from
24 2005 to 2013, and in 2013 he was convicted for
25 refusing to provide a breath sample.
26 At the original bail hearing, the Applicant
27 proposed to go live with his girlfriend in
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1 Calgary. She was willing to act as a surety and
2 to commit a sum of $1,000, without deposit, in
3 support of his release. The Applicant's brother
4 was also willing to act as a surety and to commit
5 that same amount, $1,000, without deposit, in
6 support of his release. The Applicant's brother
7 operates a work placement agency and was prepared
8 to have the Applicant continue working for him at
9 that agency.
10 The Applicant himself was proposing to
11 deposit $10,000 in cash to demonstrate his
12 commitment to comply with his release terms.
13 The circumstances of the Applicant's arrest
14 are also relevant. The charge was sworn and a
15 warrant issued for the Applicant's arrest in
16 2016. I understand that this warrant had not
17 been extended to Alberta. The Applicant, after
18 having learned of the existence of this warrant,
19 sought legal advice and ultimately travelled to
20 Yellowknife in July and surrendered himself to
21 the custody of the RCMP.
22 The Justice of the Peace concluded that the
23 Applicant had met his onus on the primary ground.
24 He concluded, however, that he had not met his
25 onus on the secondary and tertiary grounds. He
26 concluded that based on the things the Applicant
27 said to Hache after the execution of the search
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1 warrant, including the fact that he was "fucked",
2 there was a substantial likelihood that he would
3 commit further drug offences upon release given
4 the financial pressures that he was under to
5 reimburse his suppliers.
6 The Justice of the Peace also noted the
7 Applicant's history for failing to comply with
8 Court orders and the uncertainty in the release
9 plan as far as his residency was concerned. This
10 was because the Applicant's girlfriend testified
11 at the hearing that she would be moving out of
12 her residence in the fall.
13 On the tertiary ground, the Justice of the
14 Peace noted the Crown's case appeared strong,
15 that the allegations were serious, and that the
16 Applicant faced a potentially lengthy sentence of
17 imprisonment. He noted the effect that drug
18 trafficking has on the community and concluded
19 that the public's confidence in the
20 administration of justice would be undermined if
21 the Applicant were to be released even with cash
22 bail and sureties.
23 I will now turn to the evidence that was
24 adduced at the December 19th bail review.
25 At that hearing, the Crown relied on
26 essentially the same allegations as those that
27 were presented at the initial bailing hearing
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1 with one addition. Since the original show cause
2 hearing, the Crown has received a voice
3 identification report. It is alleged that a
4 comparison was done between the intercepted
5 conversations and a known voice sample of the
6 Applicant. This was done by using conversations
7 he had with family members while he was in
8 custody and were recorded at the jail. The
9 conclusion of that report is that the Applicant
10 is the person who was talking to Mr. Hache in the
11 intercepted calls. As I recall what the
12 prosecutor said in the bail review hearing, the
13 person who prepared the report is also of the
14 opinion that the Applicant's voice has some
15 unique features.
16 The release plan presented in December has
17 some things in common with the one presented in
18 August but also has some differences. The
19 Applicant's brother is continuing to be proposed
20 as one of the sureties and is continuing to say
21 that the Applicant can work for his company, but
22 he is now prepared to be named as a surety and
23 commit $20,000 to his brother's release. This is
24 substantially more than what he was prepared to
25 commit to in August. The second proposed surety
26 is now the Applicant's mother. She lives in
27 Coquitlam, B.C., and is prepared to have the
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1 Applicant reside with her. She is prepared, in
2 other words, to be the residential surety, as
3 opposed to the Applicant's girlfriend being the
4 residential surety. She lives in a housing co-op
5 and has resided there for the last eight years.
6 She is casually employed and appears to be of
7 relatively modest means. She is prepared to
8 commit a sum of $1,000, without deposit, to
9 support her son's release application. She
10 deposes that that is a substantial sum amount of
11 money for her.
12 The two differences in the release plan are
13 the change in the proposed place of residence for
14 the Applicant and who his residence surety will
15 be, and the increase of the amount that his other
16 surety, his brother, is prepared to risk by
17 supporting his release.
18 The Applicant says that the door is open for
19 this Court to intervene on his bail review for
20 two reasons. First, he says the Justice of the
21 Peace committed errors in his decision. Second,
22 he says changes in the release plan constitute a
23 change in circumstances that is a basis for this
24 court to make a fresh assessment of whether or
25 not he should be released. With respect to the
26 Section 525 review, the Applicant asks the Court
27 to conclude that this a case where there is going
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1 to be significant delay and that he is entitled
2 to release for that reason also.
3 The Crown argues that the Justice of the
4 Peace did not commit any errors in his decision.
5 The Crown further argues that the new release
6 plan is not substantially different from the
7 first one and, in some respects, is weaker
8 because the Applicant would not be living
9 anywhere near one of the two sureties as his
10 brother lives in Calgary and the Applicant would
11 be living in British Columbia. The Crown
12 questions whether the Applicant's mother, despite
13 her best intentions, will be in a position to
14 supervise her adult son in a meaningful way.
15 I will deal first with the Section 525
16 review.
17 Section 525 is a mechanism intended to
18 ensure that accused persons who are on remand
19 have the benefit of regular review of their bail
20 status. In some jurisdictions, the approach
21 followed is the accused must first establish as a
22 condition precedent to the Court engaging in any
23 review under that provision that there has been
24 unreasonable delay in proceedings. If the Court
25 finds that there has been, it moves on to examine
26 the release plan in the circumstances; but if
27 delay is not established, that is the end of the
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1 matter and nothing else is considered.
2 In this jurisdiction, the test applied has
3 not historically been as rigid as that as far as
4 delay being a condition precedent to review. The
5 approach followed for many years in this
6 jurisdiction was the one described in R. v. Caza,
7 [1999] NWTJ 73, where the Court said:
8 It seems to me that, having regard
to the purpose of Section 525, one
9 would necessarily have to examine
whether there have been
10 unreasonable delays in coming to
trying, whether the prosecutor or
11 the accused is responsible for any
such delay, the original reasons
12 for detention, and any new
circumstances that may be
13 relevant; so, it is a mixture of a
hearing de novo and an appeal.
14 The ultimate issue, absent
extraordinary delay, however, is
15 still the three-pronged test set
out in Section 515(10).
16
17 Under that approach, delay is an important
18 factor to consider, but not at the complete
19 exclusion of other things. Admittedly, this
20 approach gives rise in some instances to somewhat
21 of an overlap between the considerations that
22 would apply in the Section 525 review and those
23 that would apply in the 520 review. This
24 particular review was not argued before me in
25 this particular hearing. I know that there have
26 been criticisms of this approach. This Court was
27 recently invited to depart from it and adopt the
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1 more strict two-step test. It has declined to do
2 so.
3 R. v. Stiopu, 2017 NWTSC 7 (currently under
4 a publication ban).
5 Whatever approach is adopted, as far as
6 delay is concerned, in my view, Section 525 is a
7 curative provision. It does not entail assessing
8 delay yet unknown in a prospective way. In other
9 words, the delay to be considered on a 525
10 application is the delay that has elapsed to
11 date. This was what the Court said in Stiopu and
12 I completely agree.
13 In this case, there has not yet been any
14 significant delay. Given the nature of this
15 case, the number of accused, the nature of the
16 evidence, the likelihood that several pre-trial
17 motions may be filed, it may well be that there
18 will be considerable delay before this matter
19 proceeds to trial. But, at this point,
20 projecting into the future when this matter may
21 go to trial is speculative. This leaves as the
22 only potential reasons to intervene alleged
23 errors by the Justice of the Peace and changes in
24 circumstances. Those are the very issues raised
25 in the context of the Section 520 bail review
26 and, in the circumstances of this case, are
27 better addressed in the context of that
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1 application.
2 Now, I turn to the Section 520 application
3 for review.
4 The scope of intervention of this Court at a
5 Section 520 bail review has long been the subject
6 of debate and some controversy. That debate has
7 been put to rest in R. v. St-Cloud, 2015 SCC 27.
8 It is now very clear that on a bail review this
9 Court's role is limited. It is appropriate for
10 this Court to intervene (a) if the Justice of the
11 Peace has erred in law, (b) if the Justice of the
12 Peace's decision was clearly inappropriate; that
13 is, excessive weight was given to a factor or
14 insufficient weight was given to another, or (c)
15 if the evidence shows a material and relevant
16 change in circumstances. St-Cloud, para. 129.
17 As I already noted, the Applicant argues that
18 this Court can intervene for two reasons:
19 because the Justice of the Peace made errors and
20 because the evidence presented at the bail review
21 hearing show material and relevant change in
22 circumstances.
23 I will deal first with the alleged errors
24 made by the Justice of the Peace.
25 The Applicant says that the Justice of the
26 Peace erred in that, first, he failed to
27 meaningful consider the presumption of innocence
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1 and actually only paid it lip service. Second,
2 that he overemphasized the strength of the
3 Crown's case. Third, that he underemphasized the
4 fact that the Applicant surrendered himself to
5 this jurisdiction even though there was no
6 warrant for his arrest in effect in Alberta where
7 he was at the time.
8 The Justice of the Peace said in his Reasons
9 that he was taking into consideration the
10 presumption of innocence and the right to bail
11 and that he considered those before reaching his
12 decision. The Applicant's submission that the
13 Justice of the Peace did not actually take the
14 presumption of innocence into account is based,
15 in essence, on his decision to detain him. It
16 seems to me the argument boils down to "the
17 Justice of the Peace cannot possibly have
18 sufficiently taken into account the presumption
19 of innocence, otherwise he would have released
20 me." That is not what counsel said, but that is
21 what I think the argument boils down to. This
22 seems to me to be somewhat of a circular
23 argument. It uses an unfavourable outcome for
24 the basis of saying there was an error in the
25 reasoning process. I do not find this argument
26 convincing, especially when considering as a
27 whole the various things that the Justice of the
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1 Peace said in his decision. The Justice of the
2 Peace said he was mindful of the presumption of
3 innocence, and his careful review of the evidence
4 and the applicable principles suggest to me that
5 he indeed was.
6 The next alleged error is the overemphasis
7 of the apparent strength of the Crown's case.
8 Clearly, the Crown's case against the
9 Applicant rests on the wiretap evidence and on
10 the Crown's ability to establish that the
11 Applicant is the person speaking with Mr. Hache.
12 In assessing the strength of the Crown's
13 case at the bail stage, one must always be
14 cautious because the evidence is not tested.
15 This is especially so with something like wiretap
16 evidence. On its face, it can be very
17 compelling. We also know that wiretap evidence
18 is often, if not always, the subject of
19 challenge. These hearings can take weeks. How
20 then should a court approach this type of
21 evidence in the context of bail?
22 I agree with the comments made in R. v.
23 Amer, 2016 ABQB 689, one of the cases that the
24 Applicant brought to my attention. At paragraph
25 42 of that decision, the Court said that the
26 content of the wiretap evidence should be
27 considered as it exists in considering the
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1 strength of the Crown's case. The Court noted
2 that the judicial authorization to intercept the
3 calls, like a judicial authorization for a search
4 warrant, is valid until it is sit aside and
5 successfully challenged.
6 R. v. Abdllahi, 2013, ONSC 4873, which was
7 referred to by the Crown, is to the same effect.
8 At paragraph 21, the Court says:
9 The fact that there are aspects of
admissibility to be addressed
10 later in the proceeding, does not,
in my mind, alter the fact that a
11 bail hearing, the wiretap evidence
must simply be accepted as it is
12 for what it evidently says and for
the inferences it reasonably
13 permits to be drawn when it is
being considered. It ought not to
14 be discounted on the basis that it
will be found to be inadmissible
15 and the absence of evidence on
that hearing that seriously calls
16 its admissibility into question,
evidence that was not advanced at
17 this hearing.
18 I agree with those comments.
19 As for the voice identification evidence,
20 the Applicant says he will challenge its
21 admissibility because of how the police obtained
22 the sample of his voice for comparison. Even
23 more, he says he will bring an application for a
24 judicial stay of proceedings based on abuse of
25 process because of this. He says the
26 authorities' conduct is egregious particularly
27 because they were on notice through a letter from
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1 counsel that the Applicant would not be speaking
2 to them and, if I recall correctly, that he would
3 not agree to being recorded.
4 The Crown points out that the voice sample
5 that was obtained was obtained in conversations
6 that the Applicant was having while incarcerated
7 using a system in the jail that has a
8 pre-recorded message that warns inmates before
9 each call that the call is being monitored and
10 recorded. Now is not the time for the Court to
11 be assessing the merits of these arguments or
12 purport to assess the chances of success of
13 Charter applications that have not yet been
14 filed. It comes down to this: If the wiretap
15 evidence is excluded or if the Crown fails to
16 demonstrate that the person having the
17 conversations with Mr. Hache is the Applicant,
18 the Crown will not have a case against him. If
19 the wiretap evidence is admitted and the voice
20 identification evidence is admitted and accepted,
21 the case against the Applicant will be very
22 compelling.
23 The Justice of the Peace was entitled to
24 consider the contents of the intercepted calls
25 and did not err in his conclusion that the calls
26 are very incriminating for the Applicant and
27 cumulatively present strong evidence for the
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1 Crown in support of the charge. He focused on
2 the intercepted calls because that is what the
3 Crown's case rests on. In my view, he did not
4 overemphasize the strength of the Crown's case.
5 The last error that the Applicant alleges is
6 that the Justice of the Peace placed insufficient
7 weight on the fact he came to the Northwest
8 Territories to voluntarily surrender himself. I
9 disagree with that submission as well for a few
10 reasons. The first is that the Justice of the
11 Peace did refer to the fact that the Applicant
12 came to the Northwest Territories to surrender
13 himself. Moreover, it seems to me that if the
14 Justice of the Peace had not placed weight on
15 that factor, it is difficult to see how he could
16 have found that the Applicant met his onus on the
17 primary ground. As noted by the Justice of the
18 Peace, the Applicant has absolutely no ties to
19 the Northwest Territories. He has several
20 convictions, albeit many of them dated, for
21 breaches of Court orders, including a failure to
22 attend Court. The Justice of the Peace noted
23 that this was a concern but then also noted that
24 the Applicant surrendered himself into custody.
25 Ultimately, he concluded that the Applicant has
26 discharged his onus, that his detention was not
27 necessary to ensure that he would attend court.
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1 This demonstrates, in my view, that contrary to
2 what the Applicant asserts, the Justice of the
3 Peace did attach considerable weight to the fact
4 that the Applicant surrendered himself into
5 custody. That fact weighed a lot less in the
6 analysis of the two other grounds for detention
7 and I do not find any error in that either.
8 On the whole, having carefully reviewed the
9 Justice of the Peace's Reasons, I am not
10 satisfied that he committed any error that would
11 open the door to this Court's intervention.
12 That leaves me to consider the changes in
13 circumstances. More specifically, the changes in
14 the release plan.
15 As I said, the plan presented at the bail
16 review was not identical to the one presented to
17 the Justice of the Peace and the main differences
18 are the increase in the amount pledged by the
19 Applicant's brother from $1,000 to $20,000,
20 without deposit, and the change of the proposed
21 place of residence of the Applicant and the
22 changes to who will be his residential surety.
23 The Crown argues that despite those
24 differences, the proposed plan boils down to
25 something very similar to what was presented in
26 August and overall is not a stronger plan. The
27 plan is not dramatically different. The
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1 Applicant proposes the same amount of cash bail
2 and he is still proposing sureties who will not
3 deposit any money. But one of the sureties is
4 willing to commit $20,000 instead of $1,000.
5 There is no question there is a difference. The
6 Applicant proposes to reside with his mother in a
7 house where she has lived for eight years as
8 opposed to with his girlfriend who the Justice of
9 the Peace found did not have stable housing.
10 I am not convinced that the change in surety
11 amount, especially when there is no deposit,
12 would on its own constitute a sufficient change
13 for me to reassess the Applicant's situation.
14 But the change in the proposed residential surety
15 and the residential stability that it now offers
16 is an important difference that goes to an issue
17 that the Justice of the Peace specifically
18 expressed concerns about at the original show
19 cause hearing.
20 The Justice of the Peace was understandably
21 concerned about the fact that the Applicant would
22 be living with his girlfriend and that she was
23 planning on moving in the fall. There
24 essentially was no residential stability in the
25 proposed plan. The Justice of the Peace
26 concluded that the plan was not strong enough to
27 overcome the concerns he had.
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1 In my view, the change in the proposed
2 residential surety does constitute a material
3 change in circumstances and I must now examine
4 whether, on the basis of this plan, the Applicant
5 has demonstrated that his detention is not
6 necessary. Here, of course, I am speaking only
7 of whether his detention is necessary under the
8 secondary or tertiary ground because the Crown is
9 no longer relying on the primary ground.
10 Before I turn to those grounds themselves
11 and my assessment, I want to say something about
12 the case law. Counsel have placed before me
13 several cases where bail principles relating to
14 these two grounds of detention were applied.
15 Counsel also placed cases that set out principles
16 such as Pearson, [1992] 3 S.C.R. 665 and
17 St-Cloud. But a large number of the cases filed
18 were basically decisions on bail applying these
19 factors. These cases are useful illustrations of
20 how the principles operate, but comparisons are
21 difficult to make from case to case and are not
22 necessarily helpful in assessing the merits of
23 the matter before me. It is a little bit like
24 comparing sentencing decisions. There are so
25 many variables, so many different factors to
26 consider, and no two cases are ever alike.
27 Comparing bail decisions in cases involving
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1 crimes of violence with bail decisions involving
2 drug cases is not all that helpful because the
3 concerns that come into play are very different.
4 But that said, cases are helpful to identify the
5 governing principles and illustrate the
6 ramifications, and I have reviewed all the cases
7 that were submitted to me with that in mind.
8 Speaking first of the secondary ground, this
9 ground is concerned with public safety and
10 potential interferences with the potential
11 administration of justice. Unlike what the
12 situation was in Stiopu where some of the
13 intercepted conversations included discussions
14 about telling witnesses to lie and things of that
15 nature, there is nothing like that here. There
16 are discussions where Mr. Hache and the Applicant
17 are wondering who might have "ratted" on them,
18 there are expressions of concern - one might say
19 near panic - after the execution of the search
20 warrant, but there is nothing in the allegations
21 showing discussions about weapons, violence,
22 intimidation, or other forms of potential
23 interference with the administration of justice.
24 When considering public safety, the issue is
25 whether there is a substantial likelihood that if
26 released, the accused would commit further
27 offences. In that regard, drug offences are
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1 different from any others, as was noted by the
2 Supreme Court in R. v. Pearson. Pearson was a
3 case where the reverse onus provisions and drug
4 cases were reviewed by the Supreme Court of
5 Canada because it was alleged that they violated
6 the Charter, but it gave the Court an opportunity
7 to comment about some of the specificities of
8 drug cases.
9 Unlike many offences, drug offences are not
10 spontaneously committed. They usually fit in an
11 organized and systemic enterprise. It is a very
12 lucrative activity. The incentive for the
13 activity to continue even after arrest and
14 detention is very high.
15 So the risk to the public safety presents
16 itself differently than when dealing with crimes
17 of violence and, more importantly perhaps, the
18 means to prevent the commission of further
19 offences in the form of conditions of the release
20 plan are more limited. Coordinating deliveries
21 of drugs and movement of money, which the
22 Applicant is alleged to have done in this case,
23 can be done from anywhere. The usual conditions
24 of house arrest, reporting conditions, things of
25 that nature may not be as helpful in protecting
26 the public as they can be in other types of
27 cases.
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1 This might be an even more pressing concern
2 if there is suggestions and evidence that the
3 accused person is under financial pressures to
4 reimburse money that he owes to his suppliers, as
5 is the case here. At the same time, the
6 Applicant is presumed innocent and the cardinal
7 rule of bail is release. Detention should be the
8 exception.
9 From the point of view of public safety, the
10 fact that the Applicant faces a serious charge is
11 not in and of if itself reason to detain him
12 under our system, and the risk to public safety
13 cannot be analyzed with an assumption of his
14 guilt as a starting point.
15 The Applicant proposes to abide by a series
16 of conditions and his brother and mother will be
17 on the hook financial if he breaches any of those
18 terms. I have limited information about his
19 relationship with his mother, but I cannot assume
20 that the risk of creating a financial hardship
21 for her would not have any effect on his actions.
22 This is what needs to be balanced: The risk
23 of ongoing criminal activity that is very
24 lucrative, considering the evidence about the
25 financial pressures that the Applicant may be
26 under, versus the proposed release plan and the
27 involvement of his mother and brother.
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1 On the secondary ground, the Applicant's
2 criminal record is also a concern because of
3 several breaches of Court orders, but those
4 breaches are, for the most part, dated and go
5 back to when he was younger. They are not
6 necessarily an indication that he would continue
7 to commit offences in breach of his release terms
8 if such terms were imposed.
9 At the end of the day, the assessment of the
10 secondary ground is a risk assessment. There are
11 no guarantees. No one can ever demonstrate with
12 certainty that they will not commit any offences
13 if released. So on that ground, I am, on the
14 whole, satisfied that based on the release plan
15 now presented, in particular the change in the
16 residential plan, which rests on far more stable
17 ground than was the case in August, the added
18 potential financial consequences to the
19 Applicant's brother if he breaches and potential
20 consequences for his mother, that the Applicant
21 has met his onus and that his detention is not
22 necessary for the protection of the public. That
23 leaves consideration of the tertiary ground.
24 How this ground should be applied and what
25 it means was explained in detail in St-Cloud.
26 Cases that pre-date St-Cloud must be read with
27 extreme caution, in particular when they refer to
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1 this ground as one that should be resorted to
2 only in rare and exceptional circumstances. That
3 is not the case.
4 In considering whether the Applicant's
5 detention is necessary under the tertiary ground,
6 I am guided by the principles set out in St-Cloud
7 which are summarized at paragraph 87 of that
8 decision. The Court made it clear this is a
9 stand-alone ground that must be assessed; it is
10 not merely a residual ground. Among other things
11 the Court also said that it must not be
12 interpreted narrowly or applied sparingly, and it
13 should not be applied only in rare or exceptional
14 cases or only to certain types of crime. Rather,
15 all the circumstances must be balanced with
16 special attention to the four factors listed in
17 the Criminal Code, but not exclusively those
18 factors.
19 These circumstances, as I say, all need to
20 be balanced in deciding whether an accused's
21 pre-trial detention is necessary to maintain
22 confidence in the administration of justice.
23 That said, "necessity" remains the threshold as
24 opposed to desirability or "convenience".
25 Release remains the cardinal rule, and the
26 comments underscoring these principles in earlier
27 cases from the Supreme Court of Canada such as R.
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1 v. Hall, [2002] 3 S.C.R. 309 remain relevant.
2 But the Court has to look at the four factors
3 specifically referred to in Section 515(10)(c).
4 The first is the apparent strength of the Crown's
5 case. I go back to what I have already said
6 about the wiretap evidence. If this evidence is
7 admitted and the voice identification is admitted
8 and relied on, the Crown has a strong case. At
9 this stage, as I have said, the wiretap evidence
10 must be considered as it is. The presumption of
11 innocence is there, yes, but at this stage it
12 appears that the evidence that the Crown proposes
13 to rely on to rebut that presumption is strong.
14 The second factor is the gravity of the
15 offence. The facts alleged here involve
16 organized drug dealing in this jurisdiction and
17 the Applicant being high up in the hierarchy; he
18 is the highest of those persons who are charged.
19 Drug trafficking is very serious, it is not a
20 victimless crime, and it causes immense harm in
21 this jurisdiction, as I am sure it does
22 elsewhere, and it is of serious concern to the
23 public. It is a serious problem that leads to
24 the commission of many other offences and many
25 social problems. The severity of that problem
26 cannot be overstated.
27 The third factor relates to the
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1 circumstances of the offence. Here, aside from
2 the inherent seriousness of drug trafficking
3 activities, there are no particular facts that
4 further aggravate matters from the point of view
5 of the tertiary ground. There is no evidence
6 relating to particularly vulnerable people,
7 violence, the use of firearm, for example.
8 The fourth factor pertains to the penalty
9 the accused will face if convicted. It is not
10 for me to say now what the sentence of the
11 Applicant will be if he is found guilty, but it
12 is clear that in this jurisdiction he will face a
13 significant jail term if he is found guilty of
14 this. There will obviously will be a term of
15 imprisonment counting in years, not months, and
16 it will be a far more significant sentence than
17 anything he has received in the past.
18 In the written submissions, his counsel
19 estimates that the sentence that he is likely to
20 face if convicted is between two to six years. I
21 think that the lower end of that range is
22 completely unrealistic given the case law in this
23 jurisdiction and the high end of that range would
24 likely be more at the lower end of the actual
25 range available after trial.
26 To the extent that the prospects of a long
27 jail term could be considered an incentive for
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1 the Applicant to flea, however, it is somewhat
2 counter-balanced by the fact that he did
3 surrender himself into custody, and this is where
4 I think his surrender is relevant to the tertiary
5 ground.
6 So of the four factors that are specifically
7 listed in the Criminal Code, the first two tend
8 to militate towards detention; the third does
9 not; and the fourth, while it does militate
10 toward detention somewhat, is somewhat tempered
11 for the reasons I have already mentioned.
12 In terms of additional non-listed factors,
13 one of the things that is specifically referred
14 to in St-Cloud is the impact of crime on society
15 and on its victims. I mentioned this already
16 when talking about the seriousness of the offence
17 but I will say it again: Drugs cause harm
18 everywhere and certainly have in this
19 jurisdiction. Many lives had been ruined and
20 anyone reading the sentencing decisions of this
21 Court in drug matters over the past 10 to 15
22 years will find multiple examples of it. That is
23 something that has to be considered in assessing
24 whether the Applicant's pre-trial detention is
25 necessary to maintain public confidence in the
26 administration of justice considering the role he
27 is alleged to have played in this organization
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1 and the nature of the evidence that the Crown
2 proposes to adduce to prove his involvement.
3 The tertiary ground is about maintaining
4 public confidence in the administration of
5 justice. I do keep in mind that in this context
6 the public to be considered is not the excitable,
7 impulsive, or particularly rattled public.
8 Without being a public completely versed in the
9 details of criminal law, it is a public who
10 understands the basic tenets of our legal system,
11 including the presumption of innocence and the
12 constitutionally protected right to bail. That
13 public understands that pre-trial detention is
14 not the norm and that deprival of liberty should
15 not normally happen before a person's guilt has
16 been proven to the standard required by our law.
17 As was rightly noted during submissions, the
18 confidence of the public in the administration of
19 justice can be harmed by the release of people
20 who ought not to be, but it can also be
21 undermined by the detention of people who ought
22 not to be. These are not easy things to balance.
23 Because of the seriousness of this offence,
24 the impact that drug trafficking has on our
25 communities, and the apparent strengths of the
26 Crown's case, I do have serious concerns about
27 the effect that the Applicant's release would
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1 have on the public's confidence in the
2 administration of justice.
3 On this application, the Applicant bears the
4 onus of satisfying me that his release plan is
5 strong enough to address these concerns.
6 After much consideration, and anxious
7 consideration, I conclude that the release plan
8 that is being proposed, despite its differences
9 from the one proposed at the original hearing,
10 still does not address the concerns I have on the
11 tertiary ground.
12 The Applicant has work to go back to which
13 he could do from his mother's home even though he
14 will be in a different province, but that in and
15 of itself is not a dramatic change from what his
16 situation was at the time of the allegations. He
17 is in a relationship, but that was also the case
18 when the alleged offence occurred. There are
19 sureties, but there is no surety prepared to
20 commit a cash deposit to secure the Applicant's
21 compliance with his conditions. The Applicant's
22 mother is no doubt well intended, has residential
23 stability, and has deposed that she will report
24 any failures to comply with conditions, but the
25 reality is that she is working herself and I
26 question whether she can be expected to supervise
27 her adult son. The amount of money she is
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1 prepared to commit is no doubt significant for
2 her, but in the grand scheme of things, it is
3 relatively modest. Notwithstanding her good
4 intentions, the evidence, more specifically the
5 Applicant's youth and adult record, does not
6 suggest that her influence in his life has
7 prevented him from committing crimes. How much
8 authority or supervision she can exercise over
9 him at this point remains a large question mark
10 in my mind.
11 The Applicant's counsel invited me to attach
12 very little significance to the criminal record
13 in assessing all this. I am conscious that many
14 of the convictions are dated. Still, the
15 Applicant has convictions for breaching Court
16 orders. This, to my mind, would have an impact
17 on the perception of a reasonably informed member
18 of the public seeing the Applicant released on a
19 serious charge for which he is in serious
20 jeopardy on the strength of his promise to comply
21 with release terms. And even though the
22 Applicant has never been sentenced to lengthy
23 jail terms, some of the entries on his record, I
24 expect, would raise concerns for the reasonably
25 informed member of the public if he were released
26 on the plan currently being proposed. He has
27 convictions as an adult for uttering threats, for
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1 theft, for impersonation with intent, for
2 carrying a concealed weapon, for obstructing a
3 peace officer, and for possession of illicit
4 drugs, including one count of simple possession
5 of a Schedule I drug. So while I agree with the
6 Applicant's counsel that the significance of the
7 record is lessened by reason of it being dated, I
8 do not think it should be discounted entirely
9 either in assessing the tertiary ground.
10 To be clear, I am not saying that no release
11 plan could address the concerns on the tertiary
12 ground, but, on the whole, the one presented at
13 that is point, although in some respects is
14 somewhat stronger than the one proposed in
15 August, still falls short of addressing those
16 concerns in my view, having balanced all the
17 circumstances, all the factors, and on my
18 understanding of the law.
19 For those reasons, I conclude that the
20 Applicant has not met his onus and both the
21 application under 525 and 520 are dismissed.
22 MR. HARTE: Thank you.
23 THE COURT: That is all we have today?
24 Thank you. We will close court.
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