R. v. Howell
Ontario Court of Justice
F.M. Finnestad J.
July 20, 2006.
Counsel:
Mr. S. Hickey for the Crown
Mr. R. Rusonik for the defendant
1 F.M. FINNESTAD J.:– Mr. Howell is charged with multiple offences relating to the possession of firearms. On January 23, 2006, his bail hearing was held before Mr. Justice Lipson, who made a detention order on the tertiary grounds. Mr. Howell has been in custody for the past six months pursuant to that order.
2 On May 12, 2006, Mr. Howell’s preliminary hearing was conducted before me. While the hearing in this matter might have taken many days, through the agreement of counsel issues were narrowed to the extent that only two officers were called to testify. They gave evidence with respect to the circumstances of the arrest of Mr. Howell, the search of his vehicle and the seizure of firearms.
3 Upon completion of Mr. Howell’s preliminary hearing on May 12, 2006, the matter was adjourned for a bail hearing before me pursuant to s. 523(2)(b) of the Criminal Code. Transcripts of the original bail hearing and of the preliminary hearing were filed, as well as a defence casebook. It was the position of the defence that in light of the evidence given at the preliminary hearing, the tertiary grounds were not sufficient reason to continue Mr. Howell’s detention.
4 Mr. Howell is a 20-year-old man with no criminal record. He has no outstanding criminal charges. A release plan was proposed at his original bail hearing that included five sureties in a substantial sum, and “around the clock” supervision. Mr. Justice Lipson commented favourably on the three proposed sureties who had testified, including Mr. Howell’s parents and concluded that
They are, without question, fine law-abiding citizens who in my view could effectively supervise the accused in the community. The plan that was proposed, that basically of 24-hour supervision, seems to be a sensible one. The accused would work with his father. He would not be out of the sight of his parents and other individuals who would supervise Mr. Howell. The sincerity and the commitment of the proposed sureties to carry out their duties successfully is, in my view, beyond question or doubt, I am satisfied that the Crown has not shown cause on either the primary of the secondary grounds for Mr. Howell’s detention (p. 74, transcript of bail hearing)
5 Justice Lipson’s detention order was based exclusively on the tertiary grounds. He provided comprehensive reasons for his ruling and was satisfied that the Crown had established that Mr. Howell’s detention was necessary in order to maintain confidence in the administration of justice, having regard to all of the circumstances set out in s. 515(10)(c) of the Criminal Code.
6 His Honour was mindful, as am I, that the tertiary ground is to be used sparingly. It is not every unpopular or repugnant offence that will call for a detention order to maintain public confidence in the bail system. Parliament has not created a provision whereby offences involving firearms create a reverse onus, or call for an automatic detention order.
7 Section 515(10)(c) in setting out the basis for detention on the tertiary grounds refers to a situation where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
8 I accept Justice Lipson’s findings that the offences are serious and that the circumstances surrounding them are most disturbing. In Mr. Howell’s car police found 3 rifles, one of which was loaded. One was sawed off, and two were semi-automatic. There was also ammunition. After the execution of a search warrant at his home police found a revolver and four more rifles taken in a recent break in. Additionally police found seven stolen passports. Mr. Howell admitted to being in the business of buying and selling firearms, and that he had sold two guns in the Jane and Finch area where he lives. He was arrested in the Malvern area of Scarborough. These are two areas of this city that have been suffered significantly from gun violence.
9 I accept Justice Lipson’s findings that the evidence strongly suggests that Mr. Howell has been involved in, or connected to, some organized criminal activity. I agree that should he be convicted of these offences he will be sentenced to a very significant term of imprisonment despite his lack of a prior criminal record.
10 Mr. Rusonik argued that after the preliminary hearing the apparent strength of the Crown’s case is not what it was at the initial bail hearing. He argued that clear breaches of the Charter would likely lead to an exclusion of much if not all, of the Crown’s incriminating evidence. There are issues with respect to detention, right to counsel and search and seizure. The Crown contends that there are no Charter issues that would lead to exclusion, but concedes that their case is heavily dependent on a favourable ruling on the inevitable Charter application at trial. All of the evidence found or obtained flows from the finding of the firearms in the trunk of Mr. Howell’s car.
11 It is not the function of a justice hearing a bail application under these circumstances to make a final determination with respect to any Charter issues. However, any determination with respect to the apparent strength of the Crown’s case must take into consideration serious arguments to be advanced at trial that might impact on the strength of that case. Mr. Justice Ducharme in R. v. A.B., [2006] O.J. No. 394 dealt with a similar situation in which he found that a Charter argument advanced merited careful attention, and considered that if it were successful it would result in an exclusion of evidence that seriously undermined the case for the prosecution.
12 I have heard considerable argument on the merits of the defence challenge to the search and seizure in Mr. Howell’s case. While I am not persuaded that such a challenge is certain to succeed, I am persuaded that there is a serious argument to be made, that there is some evidentiary foundation for it, and that if it were successful the Crown would most likely have a very difficult time proving its case with respect to any of the charges. While the tertiary grounds do not call for a “certainty of conviction” with respect to the apparent strength of the Crown’s case, in my view the existence of an argument which “merits careful attention” and which, if successful, could affect the entirety of that Crown case, requires closer attention to other factors.
13 These factors include a finding by the initial bail judge that the detention was not required on the primary or secondary grounds; that he was satisfied that if released Mr. Howell would come to court and was unlikely to commit further offences. They include the fact that the onus on the bail application was on the Crown, and that Mr. Howell had no criminal record. A thorough plan of supervision was proposed that required a significant financial commitment by a number of people of three of whom that judge spoke with approval.
14 S. 11 of the Canadian Charter of Rights and Freedoms provides that a person charged with an offence has the right not to be denied reasonable bail without just cause. In R. v. A.B. Mr. Justice Ducharme quoted Mr. Justice Rosenberg as saying (at paragraph 19) that “in a free and democratic society accused persons are not denied bail to punish them before their guilt has been determined”.
15 The Criminal Code provides for situations where an accused person may be denied bail, and they are set out in the grounds for detention in s. 515(a), (b) and (c). The onus is on the Crown in this case with respect to all three and I adopt Justice Lipson’s finding that it has not met the first two. The third ground, particularly where it is the only ground relied upon to justify detention, should be invoked infrequently (see R. v. Hall, [2002] 3 S.C.R. 309), and only where it is necessary to maintain confidence in the administration of justice. Gun offences are a serious problem in this City and the source of great public concern. The allegations against Mr. Howell are that he facilitated those who would use illegal handguns for the very purpose our population fears. If he is convicted, denunciation and deterrence will be factors militating in favour of a lengthy sentence. Repugnance for these offences cannot be a justification for a detention order where the other grounds do not require it. There is no offence for which bail cannot be given; and the public is aware that persons charged with murder and serious sexual offences may be released on bail. Unlike some situations, firearm offences do not reverse the onus in and of themselves, nor do they call for an automatic detention order. These are things of which the reasonable member of the public must be aware.
16 In a consideration of all of the circumstances of these offences, the nature of the Crown’s case, the circumstances of the accused and the supervision proposed, I am not persuaded that it is necessary to deny bail in order to maintain confidence in the administration of justice, and in the bail system. I do not find that the onus on the tertiary ground is met and I am persuaded that cause has been shown to vacate the detention order previously made and to make a release order…