R. v. Falls, 2011 ONCJ 907

Citation: R. v. Falls , 2011 ONCJ 907 Ontario Court of Justice Toronto Region In the matter of Regina v. Shaun M. Falls REASONS FOR JUDGMENT: JUDICIAL INTERIM RELEASE HEARING The court in this case has ordered a Publication Ban under section 517(1) of the Criminal Code .

Consequently, the evidence taken, the information given or the representations made and the reasons given or to be given at this bail hearing shall not be published in any document or broadcast or transmitted in any way before such time as the accused is discharged after a Preliminary Inquiry or if the accused is tried or ordered to stand trial, before the trial has ended. Before: Her Worship Mary A. Ross Hendriks, Justice of the Peace Counsel: Ms. B. Glendinning, Crown counsel Mr. G. Grill, Defence counsel Hearing Dates: May 26, June 10 and 17, 2011 Judgment: June 21, 2011

INTRODUCTION: [ 1 ] At the outset of this judicial interim release hearing, defence counsel requested a publication ban pursuant to s.517(1) of the Criminal Code . Crown counsel did not oppose this request, and the order was made. HIS BACKGROUND: [ 2 ] Mr. Falls is 30 years old. He currently lives with his common law wife, Joanna Chang, and his stepson, Jalen, at 119 Kirkvalley Crescent, Aurora. He owns this home with his mother, Roberta Falls.

His spouse is pregnant, and she is having a high risk pregnancy, which is causing all family members concern. [ 3 ] His most recent former employers both attended at this bail hearing, and testified that he is very hardworking and reliable. His jobs of late have included tree-stump removal, installation of interlocking bricks, and while incarcerated, work at Millhaven, where he received grade “A” pay. After he injured his hand, he received Employment Insurance (“EI”) benefits. [ 4 ] His last employer, Mr.

Greg Fleming, who was his supervisor at Davey Tree, has offered to act as a surety and provide him with supervised employment in his own tree stump removal business if Mr. Falls is released and permitted to work. HIS RECORD: [ 5 ] Mr. Falls's record is very serious, and has been admitted for the purpose of this bail hearing (Exhibit 2). In April 2005, he pled guilty before Justice Lipson, to the following (Exhibits 1 and 2): •conspiracy to import prohibited firearms •2 counts of conspiracy to export a

Schedule II substance •conspiracy to traffic in a

Schedule I substance •participation in a criminal organization •possession of a

Schedule III substance for the purpose of trafficking •unauthorized possession of a restricted weapon •conspiracy to traffic in a prohibited device [ 6 ] As a result, Justice Lipson sentenced Mr. Falls to 7 years in prison, with 2 for 1 credit time served, which caused Mr. Falls to serve 5 years less a day in a penitentiary. He was released from prison on August 8, 2008. Part of his sentence from Justice Lipson was a mandatory lifetime prohibition on firearms and ammunition, pursuant to s.109 of the Criminal Code . Another charge, subsequent to his release, relating to a bar fight, was withdrawn in 2010.

He was released again on February 28, 2010, which was just prior to the full expiry of his sentence on April 10, 2010. [ 7 ] Mr. Falls was arrested on the charges before the court on May 11, 2011, contemporaneous to the execution of two search warrants,

one on his home, and the other on the home of his spouse's family. THE CHARGES AGAINST MR. FALLS: [ 8 ] Mr. Falls has been charged with the following offences: •conspiracy to commit an indictable offence, contrary to s.465(1) (

c) of the Criminal Code , to wit, conspiracy to traffic heroin •conspiracy to commit an indictable offence, contrary to s.465(1) (

c) of the Criminal Code , to wit, conspiracy to traffic cocaine (amended on consent at this bail hearing) •possession of a restricted firearm with ammunition, contrary to s.95(1) of the Criminal Code •careless storage of a firearm, contrary to s.86(1) of the Criminal Code •possession of a firearm with the serial number altered, contrary to s.104(3) (

b) of the Criminal Code •possession of a firearm contrary to a lifetime prohibition order, contrary to s.117.01(1) of the Criminal Code •possession of proceeds of crime, contrary to s.354(1) (

a) of the Criminal Code ALLEGATIONS FOR THE PURPOSE OF THIS BAIL HEARING: [ 9 ] At the outset of this bail hearing, Crown counsel provided the court with a brief overview of the Crown's case. At that point, she alleged that Mr. Falls was engaged in conspiracy and drug trafficking, including a high level of involvement in the drug trade in Kitchener and Guelph. [ 10 ] Defence counsel did not consent to the allegations being read into the record, and so Crown counsel called Detective Tom Wilson, of the Organized Crime Enforcement Unit, Toronto Police Services, to testify. [ 11 ] Detective Wilson testified that Mr.

Falls has been investigated as part of Project OB. Detective Wilson has been involved in Project OB since its inception. [ 12 ] Detective Wilson said that on February 8, 2011, officers on his team conducted surveillance on Mr. Brown and Mr. Kiripoulos, and as a result, the police seized 9 ounces of heroin from Mr. Kiripoulos. [ 13 ] Surveillance was put on Mr. Falls as a result of the surveillance on Mr. Kiripoulos. [ 14 ] Wiretaps on other suspects and Mr. Falls indicated to Detective Wilson that Mr.

Falls was the supplier of the seized 9 ounces of heroin. [ 15 ] On April 6, 2011 at 5:29 p.m, police intercepted a call between Mr. Falls and Mr. Brown. Detective Wilson identified the police synopsis of this call (Exhibit 3). He testified that he believed this call was a discussion of the money owed by Mr. Brown as a result of the 9 ounces of heroin being seized by police. He said that Mr. Falls sounded angry during the call, and seemed to enjoy a greater position of power in this discussion.

[ 16 ] In addition to this call, Detective Wilson also testified that police surveillance implicated Mr. Falls because he was seen trading envelopes and backpacks with others. In particular, Mr. Falls was seen providing an envelope to an unknown male through a car window on February 24, 2011. On February 25, 2011, he testified that Mr. Brown and Mr. Falls met. On March 8, 2011, Mr. Kiripoulos' father was seen giving an envelope to Mr. Falls. A package was allegedly exchanged, from Mr. Falls to Mr. Kiripoulos on April 6, 2011. However, Detective Wilson admitted that Mr. Falls and Mr.

Kiripoulos had many opportunities to exchange things inside of Mr. Falls' house, prior to being seen outside by police conducting surveillance. During cross-examination, Detective Wilson also admitted that no photographs were taken of any of these exchanges. [ 17 ] Based on this information, Detective Wilson believed that Mr. Falls was the supplier of the 9 ounces of heroin discovered on February 8, 2011, and the cocaine found on April 6, 2011. However, during cross-examination, Detective Wilson admitted that there was no direct evidence that implicated Mr.

Falls as the supplier. [ 18 ] Detective Wilson also believed that Mr. Falls was involved in conspiracy to traffic heroin and cocaine, based on extensive surveillance conducted at Mr. Falls home, at 119 Kirkvalley Crescent, Aurora. [ 19 ] He further believed that Mr. Falls engaged in counter-surveillance activities, since he was cognizant of the surveillance on him and on his home. Detective Wilson admitted that Mr. Falls and his spouse both confronted an undercover officer across the street from their home on March 8, 2011. [ 20 ] On April 21, 2011, Detective Wilson testified that Mr.

Falls received a black bag from someone. On April 27, 2011, he said that Mr. Falls received a package from a male at Premium Car Dealership. Police obtained a search warrant for that location, and nothing was found. [ 21 ] Search warrants were executed at Mr.

Falls's home on May 11, 2011, and at the residence of the family of his spouse, at 211 Downey Circle, Aurora. [ 22 ] As a result of the execution of these two search warrants, police found the following: At 119 Kirkvalley Crescent, Aurora : •one ounce of cocaine in a man's sock, in the master bedroom drawer •a loaded Smith and Wesson 357 revolver, containing 6 bullets, on a ledge in the basement ceiling (Exhibit 4) At 211 Downey Circle, Aurora: •$30, 000 in cash, in Janine Chang's bedroom [ 23 ] Janine Chang is the sister of Joanna Chang. Janine Chang provided police with a sworn KGB statement that Mr.

Falls had asked her to hold this money on his behalf. She was charged and has been released on bail. [ 24 ] Ms. Chang's brother Jason has also been charged with possession of marijuana as a result of this search warrant, but the amount involved was small and he was released from the police station. [ 25 ] It is clear from both the testimony of Detective Wilson and from Mr. Falls himself, that Mr.

Falls was aware of the surveillance on himself and his home, and that in March of 2011, he confronted Detective Walters and denied any wrongdoing. [ 26 ] After the search warrant was executed on his home on May 11, 2011, Mr. Falls insisted to the police that the firearm found in his home was not his gun, and he allegedly said words to the effect of, “if you want to charge me, go ahead, but play fair.”

[ 27 ] Mr. Falls testified at this hearing that he intends to plead not guilty. Defence counsel has stated on the record that Mr. Falls will maintain in his defence that the loaded handgun and one ounce of cocaine were planted in his home by police. THE ONUS: [ 28 ] This is a reverse onus bail hearing because of the nature of the charges. At the time of his arrest, he was not on probation, parole or bail. The Crown is seeking his detention on the secondary and tertiary grounds. [ 29 ] The onus is on Mr.

Falls to show cause, on a balance of probabilities, why his detention is not necessary under the grounds established under s.515(10) of the Criminal Code . As such, I must consider his circumstances with a particular focus on the proposed plan of release put forward. THE PROPOSED PLAN OF RELEASE: [ 30 ] Defence counsel called four proposed sureties, and one other past employer, to testify on behalf of Mr. Falls. An exclusion order was made prior to their testimony, but after the allegations had been presented through the evidence of Detective Wilson. His Past Employers: [ 31 ] Both Mr. Allan Eickmeier and Mr.

Greg Fleming are recent past employers of Mr. Falls. They each testified that he is very hardworking and reliable. [ 32 ] Mr. Eickmeier has a criminal record. He runs an interlocking brick company, and Mr. Falls sold some projects for him and performed the labour himself. Some of these clients obtained by Mr. Falls were his neighbours in his townhouse block. Mr. Eickmeier included Mr. Falls' contact information on the signs posted on his truck, and defence counsel presented such a sign at this bail hearing. He estimated that he paid Mr.

Falls 30 percent of about $45,000, or about $13,500, in cash, for his labour and sales. [ 33 ] Mr. Eickmeier testified that in April of 2011, Mr. Falls stayed behind at his home to pay for his neighbour's interlocking bricks, because Mr. Eickmeier had to leave. He testified that the money was owed to “Farmboy's Brickyard.” [ 34 ] Mr. Greg Fleming worked with Mr. Falls as his supervisor at Davey Tree, a stump removal business. He now has his own business called, “Down to Earth Stumpers.” He also testified that Mr. Falls is very hardworking. He is prepared to have Mr.

Falls work for him, monitor him closely or have his wife who works with him monitor him closely, and is willing to pay him $13 - $14 per hour, over the summer months. This offer of employment is seasonal. The plan is that Mr. Falls would work for him Monday to Friday, and some Saturdays, from 7 a.m – 3:30 p.m. He testified that Ms. Falls would drive her son to and from work, and that because he and his wife work together, based out of one truck, they can provide him with constant supervision. [ 35 ] Mr. Fleming is prepared to pledge $5000 to secure Mr. Falls' release, which is all of his savings.

As well as attending on the first day of this bail hearing, Mr. Fleming returned for a full day on the third day of this bail hearing, to indicate his moral support for Mr. Falls. Mr. Shaun M. Falls:

[ 36 ] Mr. Falls testified on his own behalf. He admitted to his prior criminal record, and testified that he spent 5 years in prison. He said that he took all of the programs offered at Millhaven, including cognitive skills, reasoning, rehabilitation, decision-making, and that while incarcerated, he completed his high school diploma. He maintained “A” level pay while working within the institution, which is top pay. [ 37 ] He has worked steadily since he was released from prison, and collected EI after he injured his hand. [ 38 ] Mr. Falls testified that he worked very hard at Davey Tree, removing stumps.

He worked there for two years, when he went on Employment Insurance (“EI”) after hurting his hand. He has also been a consultant to Supremacy Energy, and declared this income to EI. He also did some multi-level marketing work, for ACM, but made very little money and quit. Mr. Eickmeier had given him work doing interlocking brick in the spring of 2011, after his EI ran out. He had just been hired as a driver for Weedman in Newmarket, but he was arrested two days after he had been hired. [ 39 ] While he worked for Mr. Fleming at Davey Tree, he was moonlighting and given a three-day suspension by Mr.

Fleming. [ 40 ] He has between $184,000 to $200,000 in assets, and is prepared to pledge all of it to secure his own release. Some of his assets are in real estate, and other assets are held in various bank accounts. He co-owns the home in which he resides with his mother, Roberta Falls. He also has $88,000 invested in a pre-construction condominium unit at a location he refers to as “South Beach.” Ms. Roberta Falls: [ 41 ] Ms. Roberta Falls also testified. She is the mother of Mr. Falls, and he is an only child. She is retired, and lives at 126 Purvis Crescent, Toronto, with a border.

She has extra room in her home, and Mr. Falls could live with her if released. She is able to monitor house arrest conditions. She is fully aware of his criminal record and outstanding charges. She visits him and his spouse regularly, and has assisted Mr. Falls in buying the townhouse through the proceeds of the first condominium they owned together, so that her son could have “a roof over his head.” [ 42 ] Ms. Falls owns half of her home with her friend, Aidan Richardson. Between her home equity and her other assets, she has between $250,000 to $300,000, which represents all of her assets. Mr.

Aidan Richardson: [ 43 ] Mr. Aidan Richardson also testified. He is an old friend of Ms. Falls, since they both used to work at Canada Post together. He has known Mr. Falls since he was 8 or 9 years old. He has seen Mr. Falls at Sunday night dinners regularly, and has a good relationship with him. He owns half of Ms. Falls house as an investment, as he has his own residence. He is also retired. [ 44 ] He is willing to act as a surety for Mr. Falls, and can also offer a high level of supervision. He is willing to have Mr. Falls reside in his home, under house arrest, if need be. He is also willing to have Mr.

Falls spend a great deal of time with him, if released under house arrest, and has many home repair projects that could occupy his time and be under his direct supervision, if released. He is aware of Mr. Falls' record. He also drives and can assist Ms. Falls in transferring Mr. Falls between locations as need be. [ 45 ] Between real estate and other savings, Mr. Richardson testified that he is prepared to pledge $540,000, which represents all of his assets, as well. Ms. Vilma Chang: [ 46 ] Ms. Vilma Chang testified. She is the mother of Mr. Falls' spouse.

She has retired from working at TD Canada Trust and now works 30 to 40 hours per week at Shoppers Drug Mart, on rotating shifts. She is also offering herself as a surety. She owns her home

with her husband, which has a mortgage, and she also has some other assets. She has about $160,000 in assets, and is also willing to pledge everything to secure the release of Mr. Falls. [ 47 ] She has known Mr. Falls since he was about 12 or 13 years old and he first met her daughter. At different times, she has been negative about her daughter's relationship with him, particularly during his period of incarceration.

During the 5 years he was away, she said her daughter was “very restless” and that “her heart was always with Shaun.” Now, she believes that he is a “changed person.” She had a long talk with him when he was released, and he promised her that he would take good care of her daughter and Jalen. She testified that he drives Joanna to work and “is extremely good with Jalen” who misses him a great deal. She was quite emotional during her testimony, particularly as she testified about her daughter's high risk pregnancy. [ 48 ] Ms.

Chang and her husband live nearby, and she testified that she has a key to their house and visits regularly, often doing their laundry and dishes to assist them. She normally washes Mr. Falls' socks, and taught him how to fold socks, since she did not like the way he did them. [ 49 ] She is prepared to have Mr. Falls live with her, or she can assist in monitoring him, including any access that he may be permitted to her daughter and grandson. She said that her husband is retired, and that he is “very strict” and that they can ensure that Mr.

Falls follows whatever conditions are set. [ 50 ] She only found out that her daughter Janine was holding money for Mr. Falls on the day that “my house got raided.” She testified that Janine told the officer that she had money in her underwear drawer. [ 51 ] Prior to his arrest, Mr. Falls had told her about having some extra money, and wanting to keep it for safekeeping, for the baby, but did not disclose where or how much.

ADDITIONAL CROWN WITNESSES: [ 52 ] On the final day of this special bail hearing, I permitted the Crown to re-open her case prior to final submissions, noting that defence counsel could also re-open his case. [ 53 ] Detective Constable James Chant testified that he is attached to the Organized Crime Firearms Enforcement

Section of Toronto Police Services. He was part of the investigative team that executed the search warrant at 119 Kirkvalley , Aurora, on May 11, 2011. He was assigned to take notes, complete forms (including the exhibit list and the search warrant package) and take photographs at the scene (see: Exhibit 14 – the photographs were taken by this officer). He testified that no credit cards were seized, but that financial records were seized, although he was unable to specify what kind. [ 54 ] He testified that Detective Aslin found the cocaine located in a dresser drawer, and he took a photograph of it.

He said that he was with Detective Aslin when he found the cocaine in the master bedroom. Detective Walters found the gun in the basement, and again, asked Detective Chant to photograph it. He said that he took a series of photographs where items were seized. [ 55 ] Detective Constable Chant agreed that Mr. Falls recognized him as being one of the officers who had conducted surveillance. Officer Chant also testified that it was Detective Walters that Mr.

Falls had confronted about the surveillance operation earlier on, and that even though Detective Walters's had been identified, he was kept on the surveillance team on Mr. Falls. Detective Chant was unaware of the two additional wiretaps on Mr. Falls (Exhibits 10 and 11). [ 56 ] Detective Constable Iliada Leahy also testified. She is attached to the Financial Crimes Unit of Toronto Police Services. Her role is to work on forfeiture issues. She testified with respect to Mr. Falls 2008 Acura MDX. She became involved when Mr.

Falls vehicle sat in the pound, and she began to look at its ownership. [ 57 ] She testified that according to the Ministry of Transportation, Mr. Falls owns this vehicle. There is a lien on it for $23,500, by

Premium Cars Wholesale Ltd. She contacted Hussein “Shane” Shah of Premium Cars Wholesale Ltd., in relation to the lien on thevehicle. She wanted to know if the vehicle was leased or financed. He advised her that the vehicle was his, and so Detective ConstableLeahy asked for a copy of the lease, the outstanding balance owed by Mr. Falls, and the documents. He told her he would send it to hershortly when they spoke on June 9, 2011.

When the documents were not sent to her by fax, she called him again on June 10, 2011 tofollow up. [58] He said that a search warrant had been executed at his work premises by an undercover police officer. She said that Mr. Shah told her that he had since misplaced the file. He was to have given her this information by Monday, June 13th, but he has not done so. [59] She followed up with Detective Horner, who had seized a file from Mr. Shah, and he provided her with an electronic copy of thatfile (Exhibit 12 – Acura documents). Based on her review of this file, she concluded that Mr.

Falls traded in his 2006 Mercedes CLS 500for a 2008 Acura MDX, and that he completed a credit application. She also found a used vehicle bill of sale, dated March 10, 2011, witha zero balance owing (Exhibit 12). [60] A search conducted by a different police officer under the Personal Property Security Act (“PPSA”), showed that Premium held alien for $23,500. This lien was registered on May 13, 2011, for five years (Exhibit 13), which was 2 days after Mr. Falls was arrested. [61] On June 16, 2011, Detective Constable Leahy was present the entire time that Mr.

Falls' Acura MDX was tested with an Ion ScanItemizer by a Canada Border Services Agency's customs officer. She had requested this test, saying, “none of my investigating teamasked for it.” She said that this machine is known to pick up microscopic particles of drugs and explosives. Print-outs are obtained of theresults of this scan. She said that the officer rubs a “ticket” across the area of the vehicle, and then puts the ticket into the machine. Theresults are shown on the screen, and a ticket is printed out. [62] Mr.

Falls' vehicle tested positive for cocaine and heroin on the steering wheel, positive for cocaine on the front dash and consolebuttons (air conditioning, radio), and positive for cocaine on the cup-holders in the middle console. The trunk of the vehicle was openedand it tested negative (Exhibit 14 – three print-outs). [63] She further testified that his vehicle, along with other vehicles seized by the police, is stored in a large locked cage, within a lockedpolice facility, at a different location from the regular police property bureau located on Islington Avenue, Toronto. It is one large cagefor all the cars.

Access to this cage requires an officer to sign the registry. [64] During cross-examination, she admitted that she is not an expert on ion scans, and does not know how particles may be transferred. ANALYSIS: The Right to Bail: [65] The Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, enacted as

Schedule B to the Canada Act,1982, (U.K.) 1982, c.11, which came into force on April 17, 1982, provides that: any person charged with an offence has the right to bepresumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, as persection 11(d); and not to be denied reasonable bail without just cause, as per

section 11(e). [66] In R.v. Pearson, (SCC), [1992] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections11(

d) and 11(

e) of the Charter are “parallel rights,” stating: ...Section 11(

e) entrenches the effect of the presumption of innocence at the bail stage of the criminal process.

Section 11(

d) does thesame at the trial stage. Sections 11(

d) and 11(

e) define the procedural content of the presumption of innocence at the bail and trial stagesof the criminal process, and constitute both the extent and the limit of that presumption at those stages...

[ 67 ] Section 515(10) of the Criminal Code provides that pre-trial detention is justified only when one or more of the following grounds are established: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i)the apparent strength of the prosecution's case, (ii)the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves or, whose subject-matter is, a firearm, a minimum imprisonment for a term of three years or more [ 68 ]

Section 518.(1) of the Criminal Code provides: In any proceedings under

section 515, (

e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.

Secondary Ground: [ 69 ] According to Justice Trotter in his book, The Law of Bail in Canada , 3 rd ed., JP ed., Carswell, 2010, at pp. 3-13 to 3-26, there are several key considerations under the secondary ground: •the criminal record of the accused •the accused is already on bail or probation •the nature of the offence and the strength of the evidence •the stability of the accused person •interference with the administration of justice [ 70 ] I will deal with these considerations in order. [ 71 ] Mr. Falls has a serious criminal record.

In 2005, he admitted to crimes that involved gang activity, drugs and firearms. He received a 7 year sentence for these crimes. Crown counsel has urged the court to consider his new charges as similar in nature to his criminal record, and is thus seeking his detention on the secondary ground. [ 72 ] Mr. Falls has served his sentence, and is not on any form of bail or probation at this time.

[ 73 ] The nature of the offences alleged are very serious. In a nutshell, the Crown has alleged that Mr. Falls is the supplier of the 9 ounces of heroin that was seized on February 8, 2011, and the Crown asserted through the evidence of Detective Wilson that the wiretap of April 6, 2011 demonstrated a high level of involvement in criminal activity. [ 74 ] However, Detective Wilson admitted during cross-examination that there is no direct evidence of Mr.

Falls involvement in the trafficking and conspiracy charges as alleged. [ 75 ] I have reviewed all the evidence available at this stage carefully, and I find, for the purpose of this bail hearing, that the charges of conspiracy and trafficking do not appear to have a reasonable prospect of conviction. Certainly, there is nothing before me that implicates Mr.

Falls in any illegal activity in the Guelph and Kitchener area, and there is no direct evidence that implicates him in Toronto, nor am I prepared to infer it from what has been presented to me. [ 76 ] The Crown has a very strong case with respect to the charge of possession of proceeds. The testimony of Vilma Chang is inconsistent with the testimony of Roberta Falls in this respect. Janine Chang has provided a sworn KGB statement to police that Mr. Falls had asked her to keep the $30,000 that was seized during the execution of the search warrant at her home. Mr.

Falls has a number of bank accounts that he could have used to deposit this money. [ 77 ] Detective Leahy testified that she was present when Mr. Falls' car was tested for trace amounts of drugs and explosives, as part of her determination of whether or not to keep the vehicle as proceeds of crime. She testified, and I accept as true, that she was present the entire time when his vehicle was tested, and that it tested positive for cocaine and heroin traces on the steering wheel, positive for cocaine in the cup-holder and on the console buttons, but tested negative in the trunk.

However, she was unable to advise me as to the amounts involved. He purchased this vehicle as a trade-in for his Mercedes on March 10, 2011. The vehicle was used at the time of the trade in, since it was a 2008 model. The 9 ounces of heroin was seized a month before he bought this car, on February 8, 2011. Moreover, this vehicle has been stored in a large, caged area, which contains many other vehicles held by police. There will be many issues flowing from this evidence at trial. [ 78 ] When Mr.

Falls was confronted by police that a loaded gun had been found in his home, he purportedly denied it was his gun and told the police that they could charge him but that they should “play fair.” Assuming, without deciding, that at trial this may be held to have been a spontaneous utterance, then this statement would support his defence. [ 79 ] Police obtained two wiretaps on Mr. Falls, covering the periods June 8, 2010 to July 2, 2010 (Exhibit 10) and May 4, 2010 to July 2, 2010 (Exhibit 11).

There is no evidence before this court that either wiretap provided them with any evidence of criminality during a two-month period in 2010, which was months prior to his confrontation of police in March 2011 regarding their surveillance of him. [ 80 ] His mother-in-law's testimony, which I find to be credible, that she let herself into his home with her key in order to do the dishes and laundry on a weekly basis, and that she disapproved of how he put away his socks and often did it for him, would also support his defence. [ 81 ] Mr.

Falls knew he was under police surveillance, and the police knew that he knew since he and his spouse had both confronted them about it in March 2011, which also supports his defence, since he is familiar with the criminal justice system, and he could have anticipated a search warrant on his home when he knew he was under surveillance.

It defies all logic to hide $30,000 at his in-law's home, if that is ultimately proven to be true, but for him to keep one ounce of cocaine and a loaded gun both in plain view in his own home in May 2011, when he knew he was under police surveillance in March 2011, if not beforehand. [ 82 ] Much of the evidence offered by the police at this bail hearing rests on what may be logically inferred from the synopsis of the wiretaps. However, Mr. Eickmeier's evidence is that Mr. Falls had to remain in his home one day to pay for a neighbour's interlocking bricks, since Mr. Eickmeier had to leave.

He testified that this money was owed to “Farmboy's Brickyard.” This evidence corresponds to the wiretap of April 6, 2011 at 10:27 a.m., when Mr. Falls told Mr. Kiripoulos in a text that if Mr. Kiripoulos wanted to see him he had to meet him at his house, because he had “to pay the Brick guy.” (Exhibit 3). Rather than infer criminality, I am inferring that Mr. Falls was simply working. [ 83 ] When he was arrested on May 8, 2011, no credit cards belonging to Mr. Falls were seized. Subsequent to his arrest and pending his bail hearing, purchases of clothing were made on Mr.

Falls mbna credit card on May 12, 2011 (Exhibit 7), and on his PC Financial

MasterCard on May 12, 2011 (Exhibit 9). Defence counsel has provided the court with a copy of a transcript of an interview of thesalesclerk from the clothing transaction of May 12, 2011 (Exhibit 12). No store videos are available that would identify the purchasers.Defence counsel and Crown counsel have very different views of the importance of this incident, if any. Again, this is an issue for trial. [84] I have reviewed my notes of the testimony of Roberta Falls, and there is no evidence before me that Mr. Falls lied to her about theexistence of the second, “South Beach” condominium unit. Ms.

Falls was somewhat hostile during cross-examination, but that does notmean she cannot fulfill her duties as a surety. Both Mr. Falls and Mr. Fleming testified that Mr. Falls had been moonlighting whileemployed by Davey Brick, and that he was suspended for three days as a result. Mr. Fleming still wants him back as an employee, and isprepared to pledge his life savings in order to do so. I find that both Ms. Falls and Mr.

Fleming have a good sense what task they aretaking on as sureties, as do the others, but wished to address this in the body of this judgment, since the Crown had requested that Ireview my notes on these particular points. [85] In R. v. Salmon, 2011 ONSC 3654 , Justice Gray held at para. 170, “I start with the proposition that it is inherentlyimprobable that police officers would plant evidence or concoct a scheme to make it appear that evidence was found on an accusedperson.

To be convinced otherwise, I must be satisfied on the balance of probabilities that the evidence was either planted or that ascheme was concocted to make it appear that it was found in Mr. Salmon's wallet.” [86] Clearly, the argument that the police planted key pieces of evidence is an all-or-nothing sort of a defence, relatively rare inoccurrence, and it is up to the trial court to make that determination, as did Justice Gray in R.v. Salmon. [87] I am satisfied that all of the sureties in this case are decent and law-abiding people, who will do their utmost to supervise Mr.

Falls,and each of whom has offered all of their assets to secure his release. The plan of release envisions house arrest, with only some limitedexceptions, and includes 24-hour supervision and and escorted travel between destinations. [88] (Then) Chief Justice Lamer described the limits of detention on the secondary ground in R. v.

Morales, (S.C.C.),[1992] 3 S.C.R. 711, at paragraph 39, as follows: ...Bail is not denied for all individuals who pose a risk of committing another offence or interfering with the administration of justicewhile on bail...Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with theadministration 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 be merely convenient oradvantageous. [89] While Mr. Falls does pose a risk of committing an offence if released on bail, given his record, the charges before this court, and thetrace amounts of cocaine and heroin located in his vehicle, this risk must be weighed against the weaknesses found in the Crown's caseand the excellent plan of release proposed, including constant supervision by one of several sureties.

Balancing these competingconsiderations, this risk has not met the threshold of “substantial likelihood” and is certainly not “necessary” for public safety. [90] I find that Mr. Falls has met his onus on the secondary ground. Tertiary Ground: [91] Under our law, “there are no categories of offences for which bail is not a possibility,” and a detention order against an accusedunder section 515(10)(

c) cannot rest solely on a strong Crown case, or else the presumption of innocence is eroded, see: R. v.LaFramboise (2005), (ON CA), 203 C.C.C. (3d) 492 at paragraphs 31 and 32. [92] Detention is justified on the tertiary ground only in rare circumstances, and each of the four factors must be considered carefully. InR. v. Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309 (S.C.C.) at paragraph 87, the Supreme Court held that s.515(10)(c) “must be readand assessed as a whole.” [93] In R.v. Mordue [2006] No. 3654, CanLII 31729 (ONCA) at para.32, and in R. v. James [2010] O.J.

No.2262, at para. 24, the fourfactors listed under the tertiary ground are to be each engaged at “maximum force” before detention should be ordered.

[ 94 ] A reasonable, informed and dispassionate member of the public, cognizant of the presumption of innocence enshrined in the Charter of Rights and Freedoms , would assess each of the four factors listed under s.515(10(c), and would, on balance, decline to invoke this ground of detention, based on the following analysis: • there are very significant weaknesses to the Crown's case with respect to conspiracy and trafficking and a live defence to the other charges • the offences, while serious, are not violent in nature there is no evidence that the firearm discovered in the basement was used in the commission of any offence • if convicted of all charges, Mr.

Falls faces more than 10 years in prison, since a second conviction for possession of a loaded prohibited firearm would attract a 5 year sentence alone, and this sentence would be consecutive and not concurrent [ 95 ] The detention of Mr. Falls is not necessary to maintain public confidence in the administration of justice, and I decline to invoke the tertiary ground. ORDER: [ 96 ] Accordingly, I hereby order Mr. Falls be granted bail on the following conditions: (

a) Your sureties are: Greg Fleming, in the amount of $5000; Roberta Falls, in the amount of $250,000; Adrian Richardson, in the amount of $500,000; Vilma Chang in the amount of $150,000; and in addition, Mr. Falls, you are responsible for pledging $95,000 of your own assets to secure your release; (

b) You are not to possess or apply for any Firearm's Acquisition Certificate and/or gun licence; (

c) You must not use, purchase or possess, until dealt with according to law, any firearm, imitation firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition, explosive substance, non-restricted firearm, prohibited firearm, restricted firearm, or any other weapon as defined by the Criminal Code ; (

d) You are under strict house arrest. You must reside with your mother, Roberta Falls, at 126 Purvis Crescent, Toronto, and follow the routine and discipline of the home. You are to be in this place of residence at all times, seven days a week, and at all times, accompanied by a surety while in this residence.

Exceptions: you are permitted to leave your residence while remaining in the direct company of one of your sureties, for the purposes of: employment; scheduled court attendances; scheduled meetings with counsel; medical appointments or attendances related to yourself or your spouse, Joanna Chang, her pregnancy and childbirth; and for the purpose of eating dinner with your stepson, Jalen. (

e) You must abstain from contacting, associating, or communicating, directly or indirectly with the following individuals: Samson Arviko, Jordan Luke Brown, Nicolaos Kiriopoulos and Joanna Chang; except through counsel to prepare your defence; exception: you may accompany Joanna Chang to medical appointments or attendances related to her pregnancy and childbirth in the direct company of one of your sureties. (

f) You must not possess or use any cellular telephones, pagers, or other portable, wireless communication devices, including but not limited to Blackberries, iPhones or iPads; (

g) You must abstain absolutely from the possession and/or use of non-medically prescribed drugs or narcotics prohibited by the Controlled Drugs and Substances Act ; and (

h) You must remain in the Province of Ontario.

Dated at Toronto, this 21 st day of June, 2011. ____________________ Mary Ross Hendriks, J.P.