Toronto Criminal Lawyer

Possess Restricted Weapon — Toronto Bail Hearing

Client:  G.T., Accused
Complainant:  Toronto Police Service, 31 Division

Charges:  possession of a restricted firearm with ammunition, possession of a restricted weapon obtained by crime, weapons dangerous (3x), carry concealed weapon, unauthorized possession of a restricted weapon, possession of property obtained by crime, and possession of a prohibited weapon

The Queen v. G.T.
Ontario Court of Justice, Toronto
Justice Burgess
(bail hearing: 28 March 2000)

Crown:   M. Blain, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Toronto Bail Hearing Lawyer, Attorney

¶ 1  When I consider the totality in this matter, the allegations of the Crown in relation to each of the charges that are before me, the strength of the Crown's case in relation to each of the charges before me, the absence of any record, the absence of any outstanding matters, the evidence that I have heard from all parties, and the submissions that have been made:

¶ 2  First of all, on the primary ground, this Court makes no finding that there is any area of concern as to flight risk. In relation to the secondary ground, on its totality, I am not of the opinion the Crown has shown cause why this gentleman should be detained.

¶ 3  In relation to this matter this gentleman has no prior contact with the police. As a matter of fact, and in fairness ... I know the Crown can only provide to me what the officers have provided to her ... and, in fairness, I would draw a conclusion that the officer that is here assisting in this matter today was in fact not the officer out there on the road at the time. Whether that's right or not, I don't know, but that is my conclusion.

¶ 4  In relation to this particular matter there also would appear to be some triable issues, I agree. Not only the triable issues the Crown referred to, but triable issues in relation to any search as to what was found in the motor vehicle, as to whether it is being in plain view, and what was in that gym-bag in the plain field of doctrine.

¶ 5  In relation to that particular matter, as well as there is no allegations or evidence before me that would indicate Mr. T. has any specific background with organized crime other than on this one occasion being in an automobile and this scenario unfolding there is nothing more to say.

¶ 6  We have two proposed sureties that have testified here today's date, both of which are quite credible and I think are in a position to supervise. We have the evidence of Mr. T. in relation to this and I accept that.

¶ 7  So in light of all of the circumstances, I am going to set bail. Bail will be set in the amount of $60,000, no deposit, two sureties. The brother, Mr. Steven T., will be named in the amount of $40,000. The second witness, Marta H. ... Is that correct madam? Make sure I have it right ... will be named in the amount of $20,000.

¶ 8  The conditions ... and I invite both Crown and Defence to assist as we progress ... first of all, sir, that you keep the peace and be of good behaviour, that you attend Court each and every Court date on time as required.

¶ 9  I do not under any circumstances like the idea of third-party supervision. So your comments, counsel, as far as making an application before another Court, whether it be on bail review or on consent at this level, I agree that is a matter in which it is going to have to be dealt with.

¶ 10  The condition sir, will be ... and I do not think it's a good idea that he be in the Toronto area, considering these matters, and his personal circumstances. The conditions ... that you will reside with Ms. Marta H. at the address of [the surety's address] in Ottawa, that you will abide by all rules and regulations that are set down at that location.

¶ 11  There will be a condition, sir, that you are not to have in your possession any prohibited or restricted weapons, non-restricted, prohibited or restricted firearms, prohibited devices or ammunition. You are not to have any form of ammunition whatsoever, not to have in your possession any crossbows, not to have in your possession nor apply for any firearms acquisition certificate.

¶ 12  In relation to this particular release, does the Crown have any area of concern as far as any other items that fall within any of those categories within this gentleman's possession immediately upon release?

¶ 13  What I want is to make sure that you don't have an area of concern as to something else that there may be out there and needs to be deposited prior to release?

¶ 14  CROWN:  I don't believe this gentleman has a firearms acquisition certificate. So he should not be in possession of any firearms ...

¶ 15  THE COURT:  All right.

¶ 16  CROWN:  There shouldn't be any firearms in his residence. So if Ms H. or another member of the family has legitimate instruments for hunting or something they should be removed before he becomes ...

¶ 17  THE COURT:  Correct.

¶ 18  CROWN:  ... a resident there. Also I want a condition he not have a knife outside his home.

¶ 19  THE COURT:  Yes, okay. That will be added then. You are not to have in your possession, sir, any knives outside of your home. I presume, sir, that you don't need a knife, per se, for the purposes of cleaning windows, correct?

¶ 20  CLIENT:  No reply.

¶ 21  MR PENNEY:  He is indicating, Your Worship, that he uses a knife for cutting rope all the time ...

¶ 22  THE COURT:  All right, except while you are at your employment ... for employment purposes only. In relation to this matter there will be a condition that you are not to knowingly have any contact or communications direct or indirect with any person with a criminal record, a record under the Controlled Drugs and Substances Act, a Young Offenders Act, nor with any member known to you or any person known to you to be involved and ... how would the Crown like this as far as gang members, organized crime, motorcycle situations ...

¶ 23  CROWN:  Not to have any association with anyone known to him to be a member of a motorcycle gang.

¶ 24  THE COURT:  All right. "Knowingly" goes in there.

¶ 25  CROWN:  Yes.

¶ 26  THE COURT:  Okay.

¶ 27  CROWN:  Conveniently they often wear their jackets. They are fairly easy to identify.

¶ 28  THE COURT:  All right. In relation to this particular matter on the comments made as far as the curfew ... are ones that are well-noted. My concern at this particular point is I would think this gentleman in light of the strong case and I indicated some of the cases being ... some of the charges in my opinion, are really quite strong, such as this particular item being found on his person, other than of course the search issue which counsel has referred to. Other matters in my opinion, I think are a double issue as far as a triable issue.

¶ 29  What is the Crown's position as far as the curfew?

¶ 30  CROWN:  Well, Your Worship, the Crown feels that as strict as possible a condition should be placed on Mr. T. in the community when he was found in broad daylight with a handgun.

¶ 31  THE COURT:  Counsel, any comments you would like to make before ...

¶ 32  MR PENNEY:  Yes, his brother didn't ... he stated more clearly to me than he did to Your Worship ... he essentially wants the curfew there because he wants to know where his brother is. He is putting a lot of money on the line and he is asking Your Worship to allow him to give his consent. I mean, if he has to go out to a wedding one night and he can give his written consent for that but the condition is the brother as asking was "be inside your place of residence between the hours of midnight and 6:00 a.m. unless you have your ..."

¶ 33  THE COURT:  I am thinking earlier and my intent would be to indicate that unless he has prior written permission or is accompanied by either surety.

¶ 34  MR PENNEY:  That's fine. I mean, if it comes that he has one job on one night when he has to be there late he can get his brother's written permission.

¶ 35  THE COURT:  Right, and since he is residing with the mother of the girlfriend as far as any personal arrangement that they might like to make, that will give her that opportunity ... that she is satisfied. Do you agree?

¶ 36  MR PENNEY:  I agree, Your Worship. "Inside the place of residence between the hours of whatever ..."

¶ 37  THE COURT:  He will be in every night at [the surety's address], every night of the week by ten o'clock, not out before six in the morning. That should give him sufficient time ... unless accompanied by a surety or prior written permission from a surety to be out of that place of residence.

¶ 38  And certainly, that can be ... a request can be made to have that varied at any time as the hours change, as his circumstances change, if need be.

¶ 39  Any other area of concern the Crown has?

¶ 40  CROWN:  No, thank you, Your Worship.

¶ 41  THE COURT:  Any other area of concern you have, sir?

¶ 42  MR PENNEY:  Yes, there was one other request by the surety. "Telephone your brother Steven T. each and every day from your residence at the time specified by your brother Steven T."

¶ 43  THE COURT:  I have indicated that he is to abide by the rules and regulations.

¶ 44  MR PENNEY:  Okay.

¶ 45  THE COURT:  If, in fact, the sureties set down a curfew at six o'clock tonight. As far as I am concerned, I mean, that may very well end up being a triable issue but in fact they are the sureties and may very well have a reasoning behind it.

¶ 46  CROWN:  Well, Your worship, Mr. Steven T. is putting $40,000 on the line. Perhaps a condition would be best if it is perfectly clear.

¶ 47  THE COURT:  Well, I'll speak to the accused about that. But my issue in relation to that is, you know, I phone at ten o'clock and I am at that number but twenty-five minutes later, where am I?

¶ 48  MR PENNEY:  Certainly the surety has the option of pulling the bail at any time. We just want to underline for Mr. T. the importance from the Court's point of view and everyone's point of view that you are out because you are obeying these conditions and you are out really at the courtesy of these two individuals and because they are responsible not only to you but, more importantly, to the Court and to the community.

¶ 49  THE COURT:  If you want it worded on there specifically I don't have a problem with it.

¶ 50  MR PENNEY:  I am in Your Worship's hands. It's a request that was made by the sureties.

¶ 51  THE COURT:  It's your client that's going to have to follow it. It's these individuals that are going to have to supervise. It's the Crown that's going to have to prosecute if there is a problem. If you would like that condition worded specifically within there, I don't have a problem with that.

¶ 52  MR PENNEY:  Let's put it in since it is requested.

¶ 53  THE COURT:  How do you want it worded?

¶ 54  MR PENNEY:  "Telephone your surety Steven T. each and every day from your residence at the time specified by your surety Steven T.

¶ 55  THE COURT:  Anything else?

¶ 56  CROWN:  No, thank you.

¶ 57  THE COURT:  Anything else?

¶ 58  MR PENNEY:  There was one other: "not to come into Toronto," I believe, but I don't think we have "not to leave the Ottawa area without your surety's written consent unless attending Court, visiting your surety or attending your lawyer's office ..."

¶ 59  THE COURT:  I did not address that issue at all.

¶ 60  CROWN:  Perhaps "not to be outside the Ottawa/Carleton region" because that is the municipality ...

¶ 61  THE COURT:  Okay.

¶ 62  MR PENNEY:  "Not to be outside the Ottawa/Carleton region ...

¶ 63  THE COURT:  Counsel, are they ... between the family are they able to have somebody with him at all times if he is outside of that ... for the purpose of attending and/or counsel? These are extremely serious matters. We are talking ...

¶ 64  MR PENNEY:  No, I understand.

¶ 65  THE COURT:  ... a loaded handgun in the middle of the afternoon.

¶ 66  MR PENNEY:  There is really no reason for him to be coming into this area except to attend Court.

¶ 67  THE COURT:  Right, and between all the people, there seems four right here today to try and assist this gentleman. I presume the young lady is the girlfriend?

¶ 68  MR PENNEY:  Yes.

¶ 69  THE COURT:  Right.

¶ 70  MR PENNEY:  My only concern is imposing a condition on Marta H. that she attend and make the trek to Toronto ... perhaps we can have "not to leave the Ottawa/Carleton region ...

¶ 71  THE COURT:  Unless with prior permission ...

¶ 72  MR PENNEY:  ... unless with your surety or an authorized designate."

¶ 73  THE COURT:  In writing? Agreeable?

¶ 74  CROWN:  Yes.

¶ 75  THE COURT:  All right.

¶ 76  MR PENNEY:  In writing, yes. That's fine. Then Ms. H. could say: "You and my daughter can go down to Court. You have my permission ..."

¶ 77  CROWN:  "Ms. H. in writing to designate the escort."

¶ 78  THE COURT:  Right.

¶ 79  MR PENNEY:  Or the brother. That's fine. I think that will satisfy ... and in that way they can come and visit me if necessary.

¶ 80  THE COURT:  Any other area of concern?

¶ 81  MR PENNEY:  Not from my point of view.

¶ 82  THE COURT:  Crown?

¶ 83  CROWN: No thank you, Your Worship.

¶ 84  THE COURT:  Do you understand each of those conditions, Mr. T.?

¶ 85  CLIENT:  Yes.

¶ 86  THE COURT:  Do you understand, sir, that in relation to these particular matters that if you fail to appear in Court or fail to comply, a warrant would be issued for your arrest, you would be returned in custody subject to further charges, a forfeiture of that $60,000.

¶ 87  Certainly although you have no record, no prior contact with the authorities previous to this, with these type of allegations, if there are any allegations of that nature, sir, the chances would be substantial that you would remain in custody until all matters were dealt with.

¶ 88  CLIENT:  Yes.

¶ 89  THE COURT:  Can you comply with those conditions, sir?

¶ 90  CLIENT:  Yes.

¶ 91  THE COURT:  Return date?

¶ 92  MR PENNEY:  On May 5th.

¶ 93  THE COURT:  I am sorry, when?

¶ 94  CROWN:  Just one last point. I am sorry, Your Worship. Mr. T. faces some charges with a fairly stiff sentence if convicted. If he is in possession of ... I would like his passport surrendered either to the Ottawa/Carleton police or the Metro Toronto police within twenty-four hours of his release ... his travel documents.

¶ 95  THE COURT:  I have no idea whether he has any but I have no problems in light of what you are talking about. That is why I keep asking the Crown. I mean, there is only so much that I am going to jump in there with ...

¶ 96  CROWN:  Well, if he is a holder of a valid passport the Crown would like it surrendered within twenty-four hours.

¶ 97  MR PENNEY:  I am not ...

¶ 98  THE COURT:  Maybe you might want to ask your client right now, sir.

¶ 99  MR PENNEY:  I am told ... I am just wondering if the mechanics of getting it to the officer concerning ...

¶ 100  THE COURT:  I think he indicated the Ottawa/Carleton police?

¶ 101  CROWN:  Yes, he can surrender it to the Ottawa/Carleton or he can have it purolated to the officer.

¶ 102  MR PENNEY:  Yes, I know sometimes the other police forces don't like us giving him obligations and keeping documents and stuff.

¶ 103  CROWN:  Well, ...

¶ 104  MR PENNEY:  I want to be able to make it easier for him to get it back as well at the end. I ...

¶ 105  CROWN:  Mr. T. moves in circles where people have means. Perhaps the passport can be couriered to Detective Harris at 31?

¶ 106  MR PENNEY:  We could do that by courier - okay.

¶ 107  CROWN:  This is a sophisticated ...

¶ 108  MR PENNEY:  There is counsel in Ottawa. So what I am going to ask, I guess, is that the condition should read that he ...

¶ 109  THE COURT:  Within twenty-four hours of his release he will send ...

¶ 110  MR PENNEY:  Send by courier —

¶ 111  THE COURT:  ... send by courier ...

¶ 112  MR PENNEY:  To Detective David Harris, Toronto Police Force, 31 Division, at 14 Norfinch Drive, Toronto, Ontario. I think that is good enough. As long as that is in the bail, he will send it within forty-hours and the officer should get ...

¶ 113  THE COURT:  That is "courier," not mail.

¶ 114  MR PENNEY:  Yes.

¶ 115  THE COURT:  All right. Anything else? Anything further, counsel?

¶ 116  MR PENNEY:  Not from me, Your Worship.

¶ 117  THE COURT:  Do you understand that condition as well sir, and can comply with that?

¶ 118  CLIENT:  Yes.

¶ 119  THE COURT:  All right. Return date again?

¶ 120  MR PENNEY:  I have the disclosure, Your Worship. So I am suggesting and I am undertaking to see the trial co-ordinator and to get in for a judicial pre-trial on Monday, May 15th.

¶ 121  So I would like it to come back on that day and I am undertaking as well to set up a non-judicial pre-trial with my friend's office before that because that is required. It's the protocol here.

¶ 122  THE COURT:  All right. Is that agreeable to the Crown?

¶ 123  CROWN:  Yes, thank you.

¶ 124  THE COURT:  Is that date agreeable with you, sir?

¶ 125  CLIENT:  Yes.

¶ 126  THE COURT:  May 15th, year 2000, nine o'clock in the morning, 301 Court.

¶ 127  MR PENNEY:  On that date we'll set a date. I thank Your Worship for your patience, I thank my friend for all her assistance, and I thank the detective as well.