



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Bailey, 2020 ONCA 315

DATE: 20200522

DOCKET: M51537 (
C66676
)

Pardu J.A.
    (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremy
    Bailey

Appellant (Applicant)

Breanna Vandebeek
, for the applicant

Jeremy Streeter
, for the respondent


Heard: May 14,
    2020 by audio and videoconference

REASONS FOR DECISION

[1]

This application for bail pending appeal was heard
remotely
    by video and audio communication
.

[2]

The applicant was convicted by a jury of conspiracy to import heroin,
    possession of heroin for the purpose of trafficking, and conspiracy to possess
    heroin for the purpose of trafficking, and was sentenced to five years
    imprisonment. Before conviction and sentence, he was released on bail. While on
    bail, further charges were laid for trafficking cocaine and other drugs, and
    for possession of proceeds of crime. He was released on bail for those matters
    in 2018, which have yet to proceed to a preliminary inquiry.

[3]

The applicant was granted bail pending appeal to this court by a judge
    of this court on December 9, 2019. The applicants father agreed to act as
    surety and pledged $10,000 to secure his sons compliance with the terms of
    release pending appeal, which required that the applicant live with his surety
    and that he not possess illegal drugs.

[4]

However, on April 23, 2020, the applicant was charged with new offences
    of possessing and trafficking in fentanyl and breaches of the conditions of his
    release. His father withdrew as surety. His outstanding bail pending trial was
    revoked.

[5]

On April 29, 2020, the applicant was granted further bail pending trial after
    these new charges. He proposed a plan with new sureties: his brother and
    sister-in-law. They pledged $68,000, an amount equal to the equity in their
    home, to secure the applicants compliance with conditions of release. The applicant
    would be subject to house arrest and electronic ankle monitoring. The Justice
    of the Peace presiding over the bail hearing in the Ontario Court of Justice
    was satisfied that the sureties were reliable and that the GPS monitoring would
    ensure detection if the applicant left their home, though he was mindful of
    the Ontario Court of Appeals decision that must be made in the days ahead.

[6]

Now the applicant again seeks release pending appeal for the matters
    before this court.

The offences under appeal

[7]

The offences under appeal are serious. Police executed a controlled
    delivery of a package that was mailed from Malaysia to the address occupied by
    the applicant and his girlfriend but was addressed to a third party. The
    package contained a table that concealed 347.2 grams of heroin mixed with
    caffeine, which the police replaced with a control sample of heroin. The
    girlfriend accepted the package, saying the third party was her cousin who was
    residing there. When police entered the apartment, the table appeared to have
    been dismantled and the sample removed. The drugs were worth between $42,000
    and $104,100 depending on whether it was sold by the ounce or in individual
    doses.

[8]

The applicant left the apartment about 15 minutes after the controlled
    delivery. When police approached him, he fled. The applicant was convicted by a
    jury.

The new offences

[9]

The new offences are also drug related. Police observed the applicant
    attend at an Oakville address believed to be associated with drug trafficking
    on five occasions and engage in activity consistent with trafficking drugs.
    Police observed the applicant coming and going from an address in Etobicoke
    throughout the period of surveillance, even though he was obliged to reside at
    his fathers address elsewhere under the terms of his release in this court.
    When police searched the applicant, they found 3.7 grams of fentanyl concealed
    within a body cavity, plus 4 cell phones and $2,610 in cash in his possession. The
    applicants girlfriend was apparently living at the Etobicoke address he
    frequented, even though under his conditions of release he was to have no
    contact with her except in the presence of counsel. A search of the Etobicoke
    address revealed 677 grams of another substance believed to be a drug.

[10]

These
    very recent allegations of drug trafficking and breaches of recognizance are troubling
    in light of this courts recently granted bail, the underlying drug convictions,
    and the outstanding 2018 drug charges that were laid while the applicant was on
    bail.

Positions of the parties

[11]

The
    applicant submits that concerns about public safety can be mitigated by the
    strictures of the proposed plan, the high quality of the sureties and the
    significant amounts they are prepared to pledge, and the information provided
    by electronic ankle monitoring.

[12]

The
    Crowns position is that the grounds of appeal are weak but not frivolous and
    that the applicant will likely surrender into custody when required. However,
    the Crown takes the position that public safety and confidence in the
    administration of justice compel the continued detention of the applicant,
    citing s. 679(3)(c) of the
Criminal Code
, R.S.C., 1985, c. C-46.

[13]

The
    Crown expresses concerns that the sureties may not be able to provide
    continuous surveillance when they are obliged to leave their home to go to
    work, and that the applicant may still find ways to engage in drug trafficking
    from within his brothers home. The applicant bears the onus of establishing
    that his detention is not necessary in the public interest. On this
    application, he does not benefit from the presumption of innocence for the
    charges which are appealed to this court. He has been convicted on those
    matters. This is different from the bail hearing before the Justice of the
    Peace on the newest charges, where the applicant still benefited from the
    presumption of innocence.

Seriousness
    of the offence

[14]

These
    offences are serious. Drug trafficking of the kind at issue here has
    devastating effects in the community.

Strength of the grounds of
    appeal

[15]

I
    turn to a consideration of the strength of the grounds of appeal.

[16]

The
    applicant submits that the verdict of the jury was unreasonable. There was no
    documentary evidence in the apartment linking him to Malaysia, the source
    country for the drugs. The applicants fingerprints were not found on the
    packaging or the table in which the drugs were concealed.  His flight from
    police may have been for reasons unconnected to the drugs.

[17]

A
    police witness gave evidence that he had not heard of a circumstance in which
    a controlled delivery of drugs had been intercepted by someone before it
    reached the destination address, but anything is possible. The applicant
    submits that this amounts to inadmissible anecdotal expert evidence, a
Sekhon
error: see
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272.

[18]

The
    applicant further argues that the trial judge erred in telling the jury that
    they could consider his impecuniosity on the issue of whether he had a motive
    to traffic drugs.

[19]

The
    Crown responds that the jury had an ample basis to return with a guilty
    verdict. The applicant was inside his apartment when the package was delivered
    to his address. While the applicant was within the apartment, the table was dismantled
    to reveal where heroin was hidden, and the applicant left the apartment within
    15 minutes of its delivery. His flight from police, the Crown says, pointed
    convincingly to his guilt. It cannot be said that a jury could not reasonably
    convict him. The statement by the police officer regarding interception of a
    controlled delivery before reaching the destination address was tangential: in
    this case there was no such interception of the package as it was accepted and
    opened at the destination address. The Crown submits that the jury charge was
    fair and balanced in its treatment of the presence or absence of a motive to
    deal drugs.

[20]

I
    keep in mind the comments from paragraph 45 of
R. v. Oland
, 2017 SCC
    17, [2017] 1 S.C.R. 250:

In the end,
    appellate judges can be counted on to form their own preliminary assessment
    of the strength of an appeal based upon their knowledge and experience. This
    assessment, it should be emphasized, is not a matter of guesswork. It will
    generally be based on material that counsel have provided, including aspects of
    the record that are pertinent to the grounds of appeal raised, along with
    relevant authorities. In undertaking this exercise, appellate judges will of
    course remain mindful that our justice system is not infallible and that a
    meaningful review process is essential to maintain public confidence in the
    administration of justice. Thus, there is a broader public interest in
    reviewability that transcends an individuals interest in any given case.

[21]

I
    have before me the draft jury instructions, submitted by the applicant. Keeping
    in mind the limits of assessment of the strength of the grounds of appeal at
    this stage of the proceedings, I would simply say that the grounds of appeal
    are not strong, although they are arguable.

Final balancing

[22]

How
    then to weigh these factors to determine whether the applicant should once
    again be released pending appeal? As noted in
Oland
, at para. 47:

Appellate judges
    are undoubtedly required to draw on their legal expertise and experience in
    evaluating the factors that inform public confidence, including the strength of
    the grounds of appeal, the seriousness of the offence, public safety and flight
    risks. However, when conducting the final balancing of these factors, appellate
    judges should keep in mind that public confidence is to be measured through the
    eyes of a reasonable member of the public. This person is someone who is
    thoughtful, dispassionate, informed of the circumstances of the case and
    respectful of societys fundamental values:
R. v. St-Cloud
, 2015 SCC 27,
    [2015] 2 S.C.R. 328, at paras. 74-80. In that sense, public confidence in the
    administration of justice must be distinguished from uninformed public opinion
    about the case, which has no role to play in the decision to grant bail or not.

[23]

There
    is no suggestion of a flight risk. There is no reason to believe the hearing of
    the appeal will be delayed.

[24]

I
    would not conclude there is a substantial likelihood the applicant will commit
    further offences if released, given the strictures of the proposed terms. The
    quality of his sureties and the use of a GPS monitoring device substantially
    reduce the likelihood of further offences. But at the same time, given the
    determination and ingenuity demonstrated by the applicant in dealing in drugs,
    there is a lingering public safety concern. GPS monitoring has been described
    as a risk management tool, rather than crime prevention tool: see
R. v.
    Jesso
, 2020 ONCA 280, at paras. 24-27. His fathers recent pledge of
    $10,000 as surety did not prevent drug trafficking charges only months later. Even
    accepting the honesty of the new sureties and the amount they are willing to pledge,
    there are lingering concerns about the effect this will have on his behaviour.

[25]

I
    conclude that public confidence in the administration of justice would be
    undermined by release of the applicant on bail pending appeal in these
    circumstances. The convictions are serious, and there are lingering public
    safety concerns. The applicant was released on bail pending appeal on December
    9, 2019. Within months he was charged with possessing and trafficking fentanyl
    and breaching conditions of release, and further he appeared to be staying with
    his co-accused girlfriend in Etobicoke even though the conditions of his
    release required him to reside with his surety in Milton and avoid contact with
    her except in the presence of counsel. Such flagrant and almost immediate
    violations of the conditions of release, if proven, would cause a thoughtful,
    dispassionate, informed person respectful of societys values to seriously
    question whether the applicant should again be released on bail pending appeal,
    in light of the other factors including the strength of the appeal, the risk of
    re-offence, the protection that would be afforded by the surveillance of the
    sureties, and the time until the appeal can be heard.

[26]

On
    balance, the need for enforcement of the verdict outweighs the interests of
    reviewability.

[27]

I
    recognize that in
Oland
, the court said that the public confidence
    component will rarely play a role, much less a central role, in the decision to
    grant or deny bail pending appeal. However, the alleged breaches of the
    conditions of release go to the heart of the need to protect public safety.
    These are not minor breaches of curfew, or consumption of alcohol by an
    alcoholic, or failures to appear in court or report as required, the latter of
    which are akin to administrative offences. Denial of bail pending appeal in
    these circumstances is not to punish the applicant for alleged violations of
    conditions of release, but relates to public safety and public confidence in
    the administration of justice. The public safety component and public
    confidence component are not treated as silos in the analysis; residual public
    safety concerns remain relevant and should be considered in the public
    confidence analysis: see
Oland
, at para. 27.

[28]

Accordingly,
    for these reasons, the application for release pending hearing of the appeal is
    dismissed.

Released: May 22, 2020

G.
    Pardu J.A.


