R. v. O., 2006 006 WL 39890 (Ont. S.C.J.), 2006 CarswellOnt 1605

Her Majesty the Queen against R.O.

Ontario Superior Court of Justice

Bryant J.

Heard: March 10, 2006
Judgment: March 10, 2006
Docket: Newmarket 06-01341

Counsel: M. Henschel, for Crown

G. Clark, for Accused

Accused was charged in multi-count information alleging eight weapon offences — Justice of peace detained accused at conclusion of show cause hearing on grounds of public safety under s. 515(10)(b) of Criminal Code — Hearing was held to determine whether justice of peace erred in law at show cause hearing and to determine whether new proposed plan of supervision constituted change of circumstances — Justice of peace did in fact err in law and change of circumstancesdid occur: accused was ordered to surrender passport, to observe curfew, and to deposit, along with sureties, $50,000 cash bail — Mere fact of possession of weapons did not constitute sufficient grounds to detain accused for public safety reasons — Accused’s behaviour in relation to police did not demonstrate his detention was necessary to ensure his attendance in court, particularly given past history of compliance with bail order — No evidence of factual nexus between weapons found and any other crime, past or future — In factual context, nature of offences was not shown to be such that there was substantial likelihood that safety of public was endangered by release of accused — Material change in circumstances included new surety proposed, more concrete plan of supervision, and proposal for cash bail.

Cases considered by Bryant J.:

R. v. B. (A.) (2006), 2006 CarswellOnt 601 (Ont. S.C.J.) — followed

R. c. Morales (1992), 17 C.R. (4th) 74, 12 C.R.R. (2d) 31, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91, 144 N.R. 176, 51 Q.A.C. 161, 1992 CarswellQue 18, 1992 CarswellQue 121 (S.C.C.) — considered

R. v. Whervin (January 17, 2006), Doc. CR-06-000611-BR (Ont. S.C.J.) — distinguished

Statutes considered:

Criminal Code, R.S.C. 1985, c. C-46

s. 515(10)(a) — considered

s. 515(10)(b) — considered

HEARING to determine whether justice of peace erred in law in detainment of accused.

Bryant J. (orally):

Overview

1     The accused R.O. is charged in a multi-count information alleging eight weapon offences. On February 19, 2006, the police stopped a motor vehicle. The accused was operating the vehicle and was its sole occupant. The accused was arrested and a search of his vehicle resulted in the seizure of a 38 calibre handgun and a 17 inch hunting knife found under the driver’s seat. The firearm was loaded with restricted ammunition, namely six hollow-point bullets.

2     The accused was detained pending a show cause hearing held on February 23, 2006 before Justice of the Peace Hilton. She detained the accused at the conclusion of the show cause hearing. In oral reasons, she held that the accused was detained on the basis of the secondary ground of public safety.

Position of Applicant

3     The applicant’s position is that the learned justice of the peace erred in law. Mr. Clark submitted that the justice of the peace erred by shifting the onus of proof to the defendant. Alternatively, he argued that the new proposed plan of supervision constitutes a change of circumstances.

Position of the Respondent

4     The Crown’s position is that the learned justice of the peace did not err in law. Ms. Henschel also argues that the substitution of sureties does not constitute a material change in circumstances.

Onus of Proof

5     Mr. Clark submits that the applicant must satisfy the Court that the justice of the peace erred in law or that there has been a substantial change in circumstances. He submits that if the applicant does so, the Crown then bears the burden of proof that the accused should be detained. Ms. Henschel agrees with Mr. Clark’s submission concerning the onus of proof.

The Evidence at the Show Cause Hearing

6     The Crown read in the Crown synopsis. The police stopped the accused’s vehicle and conducted a computer search in relation to the licence plate. The officers were informed that the licence plate was detached. A detached plate occurs when a lessor/owner of a leased vehicle notifies the Ministry of Transportation and Communication that the lessor seeks to repossess the vehicle because the lessee failed to make lease payments.

7     The police learned that there were two outstanding warrants for the arrest of the accused and that his licence was suspended for unpaid fines. The police then conducted a search of the accused’s vehicle and found the weapons.

8     Ms. Molloy, the applicant’s girlfriend, Ms. J.O., his former spouse, and Mr. Bouridis, a business associate, were called as witnesses by the applicant at the show cause hearing. The accused also testified.

Ruling of the Justice of the Peace

9     The justice did not detain the accused on the primary ground to ensure his attendance in court. The justice correctly found the offences were serious. She reviewed the evidence of Ms. Malloy, a proposed surety, whom she found was either naïve or untruthful. She found that the licence plate of the BMW was taken from another vehicle, which was based on incorrect information. The justice referred to the evidence of Bouridis and the accused concerning their business acumen and net worth but was left with a doubt about the reliability of the evidence concerning their financial assets. The learned justice of the peace was entitled to make that finding based on the evidence.

10     The learned justice of the peace concluded as follows:

I am going to make a detention order. And the detention order is on the secondary ground that is for the public safety. Based on the biases and sometimes doubtful evidence that I have been given by the proposed sureties, I just do not feel that I could release you to them and feel confident that I have done the right thing. In this particular situation, based on the fact that there are two outstanding warrants, that you are a prohibited driver still driving, and in a vehicle that has weapons found in it, for the public safety I feel a detention order is necessary.

Error of Law

11     The Crown had the onus of proving the necessity of detaining the accused at the show cause hearing before the justice of the peace. The focus of the justice of the peace’s analysis was the ability of the surety to monitor the accused and the lack of confidence in the evidence of the accused’s financial assets. However, she did not detain the accused on this basis. As noted, the justice did not find any basis upon which to detain the accused on the primary ground. Thus, the justice relied upon the public safety factor under s. 515 (10)(b) of the Criminal Code to detain the accused. The bases for the detention were the outstanding warrants, the suspended driving for unpaid fines and the finding of the weapons.

12     I find that the warrants for arrest for a domestic criminal harassment offence and for two frauds could not form proper grounds for a detention order based on public safety in the circumstances of this case. Similarly, the suspension of a driver’s licence for unpaid fines cannot be a basis for detention on the ground of public safety in this case. The sole articulated reason that could be a basis for the detention of the accused on the ground of public safety was the finding of the weapons.

13     The seizure of the loaded handgun with prohibited ammunition and the charges relating thereto raise very serious concerns but they do not automatically satisfy s. 515 (10)(b) without more. Put differently, the mere fact of possession of these weapons does not automatically satisfy the criteria set out in s. 515(10)(b). I conclude that the justice of the peace erred in law because she concluded that the mere fact of possession of the weapons constituted sufficient grounds to detain the accused for public safety. I agree with the thorough reasons of Ducharme J. in R. v. B. (A.), [2006] O.J. No. 394 (Ont. S.C.J.), paras. 25-27.

14     I quote as follows:

As the passage quoted in paragraph 9, supra, indicates the bail hearing judge focused on the fact that this offence involved a handgun at a time when there is great concern in Toronto about guns and violence.

The bail hearing judge did not suggest, and it cannot be seriously maintained, that “today’s climate” of public opinion requires that every person charged with the commission of an offence involving handguns must be denied bail pending their trial. Ms. Strosberg very fairly conceded that the Crown could not credibly advance such a sweeping argument. Given the constitutional requirements of s. 11(e) – such a result could likely never be achieved in all cases. Indeed, even to achieve such a result in most cases would require significant amendments to the Code or a very clear direction from our Court of Appeal or the Supreme Court of Canada.

Thus, as Ms. Strosberg concedes, the appropriateness of bail can only be determined on a case-by-case basis…

Change in Circumstances

15     I find that there has been a change in circumstances: a) there is a new surety proposed and the plan of supervision is more concrete; and, b) there is a proposal for cash bail. I will expand on the material change in circumstances below.

Primary ground

16     The Crown sought to uphold the detention on the primary ground set out in s. 515(10)(a) of the Criminal Code that states it “is necessary to ensure [the accused’s] attendance in court in order to be dealt with according to law.”

17     The Crown argues that the accused knew the police were seeking him and that he was purposely evading them. Evidence of flight or evasion of the police is a consideration that weighs heavily in making a determination of risk under the primary ground (Trotter, The Law of Bail, p. 132). An inference may be drawn in some cases from evidence of evasion or flight that the accused may abscond, necessitating detention under the primary ground.

18     The accused had been in contact with the police concerning the fraud charges, despite his lack of any legal obligation to do so. The Crown argues that the content of these communications should have made the accused aware that he was sought by the police, and his subsequent behaviour, including frequent changes of residence, therefore constituted evasion.

19     The officer investigating the fraud offences had informed the accused that if he did not meet with the officer, an arrest warrant would be sought. There was no warrant in existence at the time of their telephone conversation and no warrant was obtained until November 2, 2005, 24 days later. There was no evidence that the police took any further steps to execute the warrant, once obtained, and there is no evidence that the accused was made aware of the issuance of the warrant. There is no legal obligation on the accused to check in with the police to ascertain whether a warrant has been issued for his arrest, and his failure to do so does not constitute evasion of the police. Similarly, the accused is under no obligation to notify the police of changes of address.

20     The accused’s record for compliance with court orders on previous occasions is another factor in the primary ground analysis (Trotter, The Law of Bail in Canada, p. 131). Ms. Perciasepe testified that she has successfully acted as a surety for the accused in the past. There is no evidence that the accused failed to comply with the terms of his release on that occasion.

21     Considering all the circumstances, the accused’s behaviour in relation to the police does not demonstrate that his detention is necessary to ensure his attendance in court, particularly given his past history of compliance with a bail order.

Secondary Ground – Public safety

22     The Crown alternatively submitted that the accused’s detention was justified on the secondary grounds. Section 515(10)(b) permits detention of an accused “where the detention is necessary for the protection or safety of the public, including any victim or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”.

23     The Supreme Court addressed the scope of this ground of detention in R. c. Morales (1992), 77 C.C.C. (3d) 91 (S.C.C.). The majority held that:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.

24     There has been some debate about what constitutes a “substantial likelihood” for these purposes. It has been proposed that the proper approach is a “slightly enhanced balance of probabilities standard” (Trotter, The Law of Bail in Canada, p. 136).

25     The factors to be considered when assessing whether detention is necessary for the protection of the public include: the criminal record of the accused; whether the accused is already on bail or probation; the nature of the offence; the strength of the evidence; and the stability of the accused (Trotter, The Law of Bail in Canada, pp. 137-143).

26     The Crown argued that the accused presents a risk to public safety and that there is a substantial likelihood that if released, he will commit an offence. The main focus of that argument was the nature of the offence, as well as an attempt to link the possession of the weapon with allegations of criminal harassment of the accused’s former partner. The Crown also argued that the accused’s behaviour constituted an ongoing pattern of criminality, despite the absence of any prior convictions.

27     The offences alleged are very serious, and at a minimum, warrant strict release conditions. The Crown has adduced evidence that the accused was the driver and sole occupant of the vehicle in which prohibited weapons, including a firearm, were found. However, for the following reasons, I do not find that there is a sufficient basis to conclude that the detention of the accused is necessary for the protection of the public.

28     Unlike the case of R. v. Whervin, [2006] O.J. No. 443 (Ont. S.C.J.), in which the weapons found were linked directly to on-going crime, namely drug trafficking, here there is no evidence of a factual nexus between the weapons found and any other crime, past or future.

29     The Crown was particularly concerned with the possibility that the accused possessed the weapons for the purpose of using or threatening to use them in relation to the alleged harassment of his former partner, Ms. Miller. The relationship between Ms. Miller and the accused ended in September of 2005. The accused allegedly made many phone calls and sent emails to Ms. Miller in an attempt to rekindle the relationship. One email, dated October 14th, 2005 contained a perceived threat, namely that if the accused found Ms. Miller to be seeing anyone else, “the shit will hit the fan”. Ms. Miller apparently came to fear for her safety.

30     The unwanted communications seem to have stopped as of late October 2005 however, and there is no evidence of any subsequent contact initiated by the accused. The accused never attended at Ms. Miller’s residence or confronted her in person. Ms. Miller actually initiated the last known contact with the accused for the purpose of advising him that the police wished to speak with him.

31     I cannot conclude that any factual nexus has been established between the alleged harassment and the location of the weapon by the police in the accused’s car, given the passage of time between these events and the absence of any evidence connecting them.

32     The fraud charges also do not constitute a ground for detention for the purpose of protecting public safety.

33     The accused is alleged to have defrauded two businesses of $59,000 and $10,000 between June and November of 2004. The accused allegedly promised to arrange large loans to these businesses but required an engagement fee from each. To date, the loans have not been made, nor the fees refunded. The police occurrence reports indicate these alleged offences were not reported to the police until August of 2005.

34     There is no evidence that any kind of coercion or “strong-arm tactics” were used in these transactions. They are differentiated both in kind and temporally from the weapons charges. The nature of the fraud offences does not raise concerns with respect to public safety.

35     The accused has no criminal record, was not on bail or probation when the offences were alleged to have occurred. It has not been established that in the factual context the nature of the offences is such that there is a substantial likelihood that the safety of the public is endangered by his release. The Crown did not make an argument that the accused’s detention was justified on the basis of a likelihood that the accused would interfere with the administration of justice. There is therefore no basis for detaining the accused on the secondary ground.

Changed Circumstances

36     The accused claims to share in great family wealth generated in part by mines in other countries. This may be so, but there is no evidence of it beyond his assertions. The accused’s lifestyle does not seem consistent with the kind of wealth he claims to enjoy.

37     The evidence with respect to the accused’s income and assets was vague and unsupported by documentation. Both the source and value of his earnings is unclear and uncorroborated by an income tax return or other documentary evidence. There is no evidence of any completed business dealings that would provide a source of revenue.

38     However, the trust agreement and cash bail will be an alternate condition due to the lack of concrete evidence of his assets. The accused did not offer to post cash bail at the hearing before the justice of the peace. This constitutes a material change in circumstance.

Ties to the community

39     The accused does demonstrate ties to the community. He has resided in Ontario since 1986, and has two children aged nine and fourteen residing in the Toronto area, to whom he has regular access. He is close to his former spouse and his former common law spouse.

Sufficiency of Sureties

40     The proposed sureties, Peggy Perciasepe and Dean Bouridis, have no criminal records, are gainfully employed, and have ties to the community. Mr. Bouridis is President of Legacy Capital Corp., a friend and business associate of the accused, and has successfully acted as a surety before. Ms. Perciasepe is a friend and former common law spouse of the accused. She has acted as a surety for the accused in the past without any apparent problems arising. Under the proposed arrangement, the accused would live with Ms. Perciasepe and go to work with Mr. Bouridis. Both have undertaken to pledge an amount of money as the court sees fit.

Deposit

41     The accused will deposit $50,000 cash bail. Ms. Perciasepe will post $2,500 bail without deposit and Mr. Bouridis will post $10,000 bail without deposit. Ms. Perciasepe and Mr. Bouridis will not be jointly and severally responsible for the bail of the other.

Conditions

42     The accused will reside with Ms. Perciasepe and will observe a curfew from 10 p.m. until 6 a.m. He will not leave the residence unless accompanied by one of the two sureties.

43     The accused will maintain his employment and report weekly to the York Regional Police.

44     The accused will surrender his passport(s) and any firearms certificates of which he is in possession. There will be a condition prohibiting the accused possessing any weapons or firearms.

45     The accused is prohibited from contacting Ms. Susan Miller and from being within 500 meters of her residence (8 Appenine Court, Brampton).

46     There will be a condition that the accused will remain in the Province of Ontario.

47     I will adjourn the hearing and allow counsel to agree on the language of the recognizance.

Order accordingly.