



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bailey, 2021 ONCA 3

DATE: 20210105

DOCKET: M52060 (C66676)

Thorburn
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jeremy
    Bailey

Applicant (Appellant)

Nathan Gorham, for the applicant

Christina Malezis, for the respondent

Heard: December 24, 2020 by video conference

REASONS
    FOR DECISION




OVERVIEW

[1]

On July 13, 2016, the applicant, Jeremy Bailey
    was arrested and charged with importing heroin, conspiracy to import heroin,
    possession for the purpose of trafficking heroin and conspiracy to import for
    the purpose of trafficking heroin. He was released on bail the following day
    with his father as his surety.

[2]

At trial, he was convicted of all counts, except
    the importing charge and was sentenced to a five year jail term on December 9,
    2019.

[3]

Also on December 9, 2019, the applicant brought
    his first application for bail pending appeal. He was released on bail by this
    Court on condition,
inter

alia
, that
    he reside with his father/surety, not contact his co-accused, Djamila Panzo,
    and not possess weapons or illegal drugs.

[4]

His bail pending appeal was revoked by this
    court on May 22, 2020 after he was arrested on new drug trafficking charges and
    breach of his bail conditions in April 2020.

[5]

He now seeks bail pending his appeal of his
    conviction on the 2016 charges and submits that there has been a material
    change in circumstances in respect of his outstanding 2018 charges, such that
    he should be released on bail.

[6]

For the reasons that follow, the application is denied.

BACKGROUND

[7]

At his bail hearing before this court on May 14,
    2020, the Crown conceded that the appeal was not frivolous and the applicant
    was not a flight risk. However, the Crown argued that public safety and
    confidence in the administration of justice required that the applicant be
    detained.

[8]

At the time of the May 14, 2020 bail hearing
    before this court:


i.

The applicant was charged with trafficking
    cocaine and other drugs and possession of proceeds of crime in August 2018 (the
    August 2018 charges) and released on bail and required to reside at his
    fathers address; and


ii.

While on bail, on April 23, 2020 he was arrested
    at a gas station and charged with trafficking fentanyl, possession for the
    purpose of trafficking fentanyl, and two counts of failure to comply with the
    terms of his release (the April 2020 charges).

[9]

The 2018 charges have now been stayed.

[10]

Moreover, the applicant recently received police
    notes of the April 2020 arrest which suggest that the applicant was arrested
    and drugs located while he was in a public parking lot. The notes do not explain
    how drugs were retrieved from the applicants buttocks. The search, he says,
    constitutes a
Charter

violation.

[11]

At the May 2020 bail application before this
    court, the original terms of bail in existence at the time he was granted bail
    on the April 2018 charges had been amended. The applicants father removed
    himself as a surety, and his brother and his brothers common law spouse were
    the proposed sureties, they pledged the entire equity in their home ($68,000), and
    the proposal was that he be placed under strict house arrest and a GPS ankle
    monitoring bracelet.

[12]

On May 22, 2020, Pardu J.A. dismissed the
    applicants request for bail on the grounds that there was a lingering public
    safety concern given the determination and ingenuity demonstrated by the
    applicant in dealing in drugs in April 2020, such that the applicant was
    denied bail and placed in detention.

ANALYSIS AND CONCLUSION

The Test for Bail Pending Appeal

[13]

To obtain bail pending appeal pursuant to s.
    679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46, the applicant must
    establish that: (1) the appeal is not frivolous (s. 679(3)(a)); (2) he will
    surrender himself into custody in accordance with the terms of the order (s. 679(3)(b));
    and (3) his detention is not necessary in the public interest (s. 679(3)(c)).
In a s. 679 application, the applicant
    bears the burden of establishing each of the three itemized release
    considerations, on the balance of probabilities, before an interim judicial
    release order may be made:
R. v. Oland
,
2017 SCC 17
,
[2017] 1 S.C.R. 250
, at para.
19.

[14]

To satisfy the third ground, an applicant must
    show on a balance of probabilities, that his detention is not necessary in the
    public interest: see
Criminal Code
, s. 679(3);
Oland
, at paras.
    19-23; and
R. v. Iraheta
, 2018 ONCA 229, at para. 4. The public
    interest criterion under s. 679(3)(c) has two elements: public safety and
    public confidence in the administration of justice:
Oland
, at paras. 23,
    26.

[15]

Public safety relates to the protection and
    safety of the public, which tracks the secondary ground requirements:
Oland
,
    at para. 24. To be denied bail for public safety considerations: (i) an
    individual must pose a substantial likelihood of committing an offence or
    interfering with the administration of justice; (ii) the substantial
    likelihood must endanger the protection or safety of the public; and (iii) the
    individuals detention must be necessary for public safety
: R. v. Morales
,
[1992] 3 S.C.R. 711
, at p. 737
;
R.
    v. Stojanovski
, 2020 ONCA 285,
at para.
18. Public safety considerations
    alone can justify refusing bail in the public interest.

[16]

Public confidence in the administration of
    justice is rarely a central factor in the test for bail pending appeal, but
    ought to be considered in circumstances such as this, when the offence is
    serious. Public confidence must be assessed from the perspective of an informed
    member of the public who understands our bail system, and the facts of the case.
    Public confidence involves weighing enforceability and reviewability.
    Enforceability concerns the need to respect the general rule of the immediate
    enforceability of all judgments. Reviewability concerns the need to provide for
    a meaningful review process that does not require persons convicted of offences
    to serve all or a significant part of their sentence only to have their
    conviction overturned on appeal:
Oland
, at paras. 24-26.

[17]

These two components of the public interest
    factor are not to be treated as silos. Even if an applicant meets the public
    safety threshold, residual public safety concerns or the lack of any public
    safety concerns should still be considered:
Oland
, at para. 27.

The Position of the Parties

[18]

It is agreed that the applicant has satisfied
    the criteria under ss. 679(3)(a) and (b), as he has established on a balance of
    probabilities that the appeal is not frivolous and that he will surrender
    himself into custody in accordance with the terms of the order:
Oland
,
at para.
20.

[19]

The applicant claims there are two material
    changes in circumstances since the order of this court refusing his bail
    application on the public interest criterion:


i.

On July 2, 2020 the August 2018 charges were
    stayed; and


ii.

The disclosure related to the April 2020 charges
    suggests that the Applicant was subjected to an illegal strip search, contrary
    to s. 7 of the
Charter
.

[20]

The Crown opposes the request for bail under the
    public interest criterion set out at s. 679(3)(c) of the
Criminal

Code
on the basis that the public safety concern outlined by this court in the
    earlier order denying bail remains a concern. The Crown also submits that the
    reviewability interest is outweighed by the enforceability interest and, as a
    result, detention is necessary to maintain public confidence in the
    administration of justice.

Reasons for the Prior Order Refusing Bail

[21]

In the last bail order before this court, Pardu
    J.A. held that the appeal was arguable and therefore not frivolous, and the
    strict bail plan was such that there was no substantial likelihood that he
    would commit further offences.

[22]

She held however at paras. 25-27, that despite
    the strong plan of release, there was still a lingering public safety concern:

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. On balance, the need for enforcement of the verdict outweighs the
    interests of reviewability. [T]he 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.

Conclusion

[23]

Public confidence in the administration of
    justice is considered in circumstances such as this, when the offence is
    serious and is assessed from the perspective of an informed member of the
    public who understands our bail system, and the facts of the case. It involves
    weighing two competing interests: enforceability and reviewability.

[24]

When measured through the eyes of a reasonable
    member of the public who is thoughtful, dispassionate, informed of the
    circumstances, and respectful of societys fundamental values, I find that public
    confidence in the administration of justice would not be maintained if the
    applicant were to be released pending appeal on these terms.

[25]

While the applicant correctly notes that the
    August 2018 charges have now been stayed and there is some evidence that the
    drugs found at the time of the applicants arrest on the April 2020 drugs may
    have been taken from his person in violation of his
Charter

rights,
    these changes are not material to the reason for refusing bail by this court as
    articulated by Pardu J.A.

[26]

At that time, as in this case, while the applicant
    was released on bail pending appeal, within months he was charged with
    possessing and trafficking fentanyl and breaching conditions of his release by
    staying with his co-accused girlfriend with whom he was ordered to have no
    contact except in the presence of counsel.

[27]

The applicants breach of two significant
    conditions of his bail (associating with his co-accused and being in possession
    of fentanyl) constituted flagrant violations of his conditions in the mind of
    Pardu J.A. such that 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.

[28]

Even if the evidence regarding a possible
Charter

breach and the stay of the August 2018 charges were material changes in
    circumstance, the lingering concern about his breach of two important bail
    conditions remains.

[29]

The applicants fathers pledge of $10,000 as
    surety did not prevent these alleged serious breaches of his bail conditions
    only months after bail was granted. Thus, notwithstanding the excellent quality
    of the proposed sureties and the strict bail conditions proposed, just as the
    prior bail judge did, I find there are lingering public safety and public
    confidence concerns such that the applicant should remain detained pending his
    appeal.

[30]

The application for bail pending appeal is therefore
    denied.

J.A.
    Thorburn J.A.


