R. v. Dean, 2012 ONCJ 590

Citation: R. v. Dean , 2012 ONCJ 590 R. v. Dana Dean Between Regina and Dana Dean Ontario Court of Justice Metro North Toronto, Ontario P. Kowarsky J.P. Heard: September 20, 2012 Judgment: September 21, 2012 Crown Counsel: Mr. D. DeSantis Defence Counsel: Mr. J. Razaqpur, Ms. A. Sellers-McCaw JUDICIAL INTERIM RELEASE HEARING REASONS FOR JUDGMENT P. KOWARSKY J.P. A. THE CHARGES 1 .

This is my ruling on an application for judicial interim release by Dana Dean, a 42-year-old man charged on a 9-count information with the following 4 criminal offences: Attempt Fraud under Uttering forged document Possession of property obtained by crime Possession of credit card obtained by crime 2 . His co-accused is charged with 5 similar offences all arising out of the same fraudulent transaction, according to the police synopsis as read into the record by the Crown. B. THE ONUS 3 .

Although there is conflicting information and testimony as to the current residential address of the accused, for the purpose of this hearing I will accept the accused’s testimony that he resides alone in a basement apartment in Hamilton, Ontario. 4 . According to the Crown Attorney, there are 2 outstanding arrest warrants for the accused: one in Montreal and the other in Halton Region, Ontario. The details giving rise to these warrants and whether they are Warrants in the First, Bench Warrants or Warrants of Committal were not forthcoming either by the accused or defence counsel. 5 .

Although such details may give rise to a reversal of the onus of persuasion, without confirmation regarding the types and reasons for the issuance of these warrants, I proceeded on the basis that the onus rests on the Crown to satisfy the court, on a balance of probabilities, why the accused’s detention is justified on any one of the grounds set out in section 515(10) of the Criminal Code . C. THE ALLEGATIONS 6 . The allegations are briefly that on 17 th September 2012, the 2 accused entered a store known as Wind Mobile in Yorkdale Mall, located at 3401 Dufferin Street, Toronto to open mobile phone accounts. 7 .

While in the process of endeavouring to open such accounts, both of the accused presented identification and credit cards. One of the store officials recognized the co-accused from a previous occasion when apparently he had used false cards to open such an account. The

store officials became suspicious and delayed the two accused, while they called and waited for the police to arrive. 8 . Upon arrival, the police located counterfeit identification cards on both accused. In the possession of Mr. Dean, the police found an Ontario Driver’s Licence in the name of Brian Holmes, a Quebec Driver’s Licence in the name of Ryan Wilson and a President’s Choice MasterCard in the name of Brian Holmes. Both accused were arrested on scene. D. THE ACCUSED’S CRIMINAL RECORD 9 . Mr. Dean has a Criminal Record, which he admitted for the purposes of the Bail Hearing.

The Record was tendered and received into evidence marked Exhibit #1. The Accused’s Criminal record reflects the following entries: May 9, 1996 – Fraud under October 14, 1997 –

i) Fraud under, and ii) Conspiracy to commit Fraud April 15, 2004 –

i) Fail to Attend Court, and ii) Fail to Attend Court October 2, 2006 – Fraud Over for which the penalty included a custodial sentence, a Restitution Order of $14,035.46 and a Weapons Prohibition Order for five years. However, on October 2, 2008 he was convicted of –

i) Unauthorized possession of a firearm in a motor vehicle, and ii) Unauthorized possession of a Prohibited or Restricted weapon. 10 . He has spent a considerable amount of time in both pre-trial and post-trial custody. The case at bar, I believe, has the makings of an Order of Detention primarily as a result of his Criminal record. E. THE PLAN OF RELEASE 11 .

The Crown’s concerns are on the Primary and Secondary grounds, founded, I presume, on the accused’s prior convictions on two counts of failing to appear in court, as well as convictions for possession of a firearm in his vehicle and possession of a prohibited or restricted weapon, although the accused testified that it was actually someone else’s firearm which was located in his vehicle. 12 . The Bail Program has agreed to supervise the accused if he is released, and will require him to reside at a shelter in Toronto until otherwise directed.

Of course, there would also be reporting conditions as well as counseling as directed. F. THE RIGHTS OF THE ACCUSED 13 . When considering the accused’s application for bail, I take into account his rights under the Canadian Charter of Rights and Freedoms : * To the presumption of innocence; * To reasonable bail; * Not to be deprived of his liberty or security except in accordance with the principles of fundamental justice. 14 .

Furthermore, the abundant jurisprudence with respect to these rights makes it clear that: Imprisonment prior to trial should be the last resort; Pre-trial detention is extra-ordinary in our system of criminal justice; and There are no categories of offences for which bail is not a possibility. 15 . However, in order to justify the accused’s release on bail I am required to be persuaded, on a balance of probabilities, that the plan of release is adequate to reduce my concerns on the primary and secondary grounds to a reasonable level. F. THE TESTIMONY OF THE ACCUSED

16 . In

summary, the accused testified as follows: He was born in Montreal, where he attended school. He worked in Ottawa for some time after graduating. He was laid off, and received a severance package. He was employed while receiving Employment Insurance from the Federal Government, effectively committing fraud. He was convicted of Fraud, and ordered to make restitution in the amount of $14,035.46. He moved to Hamilton within the last year in order to enroll in a Real estate Program at Toronto’s Ryerson University, which he has been attending every weekday by public transportation.

He rented a basement apartment in Hamilton for $500.00 a month because it was much less expensive than in Toronto. His only income is from O.D.S.P. which is about $1272.00 per month. He has been receiving Government support through O.D.S.P. for the past year because after he was laid off some years ago, he became anxious and depressed, and he will never be able to work again. [Parenthetically, the accused appeared to be well-dressed, well-groomed and well-spoken when he appeared before me for bail.] He has four children who are taken care of by him and their maternal grandmother with whom they reside in Ottawa.

His children are aged 15, 12, 8 and 6, all from the same birth mother, who died in the year 2000. Mr. Dean’s mother, who is in her sixties and lives in Ottawa, is too old to travel to Toronto to try and bail him out. His sister who is in her thirties, lives in Montreal. She has small children so she cannot come to Toronto to try and bail him out. He is aware of his criminal convictions, and is not proud of them. He came to Hamilton and Toronto because he wants to change his life so as presumably to walk henceforth on the straight and narrow. 17 .

It is noteworthy that the offences with which he is currently charged are alleged to have been committed by him last week on September 17 th 2012. This does not seem to support his desire to better his life lawfully. G. CREDIBILITY AND FINDINGS 18 . What follows are my findings in relation to the evidence of the accused. 19 . He testified to having four children from the same mother, who died in 2000. 20 . When questioned by the court about how accurate this could be having regard to the ages of his two younger children, aged 8 and 6, he became hesitant and evasive.

He then said that he couldn’t remember how old his children are even though he testified that he goes to visit them every three weeks. 21 . Then he told the court that actually, his youngest child is a son, who was not born of the same mother as the other three, and he lives with his own mother. 22 . Of course, something doesn’t quite add up here. If the children’s mother died in 2000, even if his 12-year-old daughter was born just before her mother’s death, how could that mother have given birth to the accused’s third daughter, who is now 8 years old?

23 . It seems to me that the accused wove such a web of lies during his testimony that he had no idea which way to turn during cross- examination by the Crown Attorney and clarification questions from the court. 24 . The majority of the accused’s evidence, in my view, is a significant distance from the truth. All in all it did not have the ring of truth. His explanations were largely implausible and circuitous. He was not being forthright, and provided illogical testimony fraught with inconsistencies. 25 . I don’t believe that he is so sick that he must remain on O.D.S.P. for the rest of his life.

If he is or was anxious and depressed, it was likely to have been as a result of his fraudulent activities after being laid off, and not the lay-off per se , for which he admitted to having received a retirement package. This happened some six years ago, and according to the accused, he has only been receiving O.D.S.P. payments for the past year. It begs the question: what did he do about making a living during that interim period of some 4 or 5 years? 26 . He testified that he has not been able to work because of his depression and anxiety. Then he said that he couldn’t find a job because of his Criminal Record.

If the latter is true, it strains common sense that he would be taking a two-year Real Estate course at University, if his Criminal record would prevent him from securing employment. 27 . I don’t believe that his only income is $1272.00 per month from O.D.S.P. If his rental payments are $500.00 per month, as he says, what about the cost of his tuition, transportation, food, travels to Ottawa to visit his children and numerous other necessities of daily life? 28 . I don’t believe that he has much, if any, contact with his children at all. 29 .

I don’t believe that he cannot remember any of the details of his criminal convictions or his two outstanding Warrants of Committal, one of which the Crown was able to ascertain is a Bench Warrant from the Provincial Offences Court in Burlington, apparently for failing to appear in court pursuant to his release on a recognizance after an arrest for driving while under suspension. 30 . I don’t believe that he has no friends or relatives who could be contacted with a view to having one or more of them sign bail for him. 31 .

I don’t believe that he cannot get a job because of his Criminal Record for the reasons which I have already stated. 32 . Despite his evidence with respect to debilitating anxiety and depression, although the Bail Program release would require him to undergo counseling, he testified that he would comply even though he does not require any counseling. 33 . The Crown seeks the accused’s detention on the primary and secondary grounds.

When cross-examined in relation to his 2 convictions for failing to attend court, he was evasive, but seemed to recall that his lawyer forgot to tell him when he was required to attend court. 34 . In short, I find the evidence of the accused to be convoluted, unreliable and lacking in veracity. When viewed against the backdrop of his convictions for fraud and his current charges of fraud and counterfeit, I do not accept his evidence at all. 35 .

As a result of my finding of unreliability, I am not satisfied that the proposed Bail Program release is adequate to reduce my concerns on both the primary and secondary grounds to a reasonable level. The result is that unless there is a sufficiently strong plan of supervision, I would order his detention. H. THE COURT’S OFFER TO ADJOURN 36 . However, since I was scheduled to preside in this Bail Court today, I advised defence counsel that I would give him an opportunity to present the court with a better plan of release for my consideration and that of the Crown Attorney. I believe that in the interests of

justice, despite my findings of the accused’s lack of credibility, a proper plan of supervision could allay my concerns. 37 . Mr. Dean’s record reflects a lifestyle of dishonesty and disobedience. Although there is no history of actual violence, he has convictions for possession of a firearm in his vehicle and possession of a prohibited or restricted weapon. 38 .Nevertheless, since there is no crime for which bail is not a possibility, I took the somewhat unusual step of permitting defence counsel to endeavour to present a better plan of supervision today. I. THE NEW PLAN OF RELEASE 39 .

Today, September 21, 2012, this matter came before me once again. For the completion of the hearing, the accused was represented by defence counsel, Ms. A. Sellers-McCaw, an associate of defence counsel, Mr. J. Razaqpur, who appeared for the accused yesterday. 40 . Ms. Lisa Morgan was presented as the proposed surety for Mr. Dean. Her testimony may be encapsulated as follows: 41 . She is 33 years old, and resides in a house, which she shares with her elderly mother. Together they own their home in which the equity is about $200,000.00. Her mother was in the body of the court today. Ms.

Morgan is employed by the City of Toronto Public Service Department, and works from 9:00 am to 5:00 pm daily during the week. 42 . She and Mr. Dean have been dating since June of this year, and they have a very warm and caring relationship. 43 . She is willing to pledge $2,500.00 to secure the release of the accused, who will live with her and her mother, both of whom will supervise Mr. Dean together since her mother is retired. 44 . She has never been a surety before. She does not have a criminal record nor any outstanding charges, and is a Canadian citizen.

If necessary, she will report any breach of bail by the accused to the police. 45 . Defence counsel explained to her the responsibilities of a surety, and reviewed the accused’s criminal record and current charges with her. She had not known about Mr. Dean’s criminal record prior to coming to court today. 46 . Under cross-examination, she admitted that she had no idea of the accused’s testimony at the actual hearing yesterday. As far as she knew, the accused was single, had never been married, had no biological children, lived in Toronto, and was preparing for a real estate course. 47 .

When I asked her to clarify what she did know about the accused’s evidence yesterday, she indicated that she was unaware that the accused had testified to having four children, and that his wife had died in the year 2000. She did not know that he was living in a basement apartment in Hamilton and commuted daily by public transportation to Ryerson University where he is a registered student. She was also unaware that the accused had testified that his youngest child is a son who was born of a different mother, and that his son lived with his own mother. 48 . Ms.

Morgan was also unaware that there are two outstanding Arrest or Committal Warrants for him, and that even if he were to be released on bail, in all likelihood, the police would immediately execute these warrants. 49 . Needless to say, Ms. Morgan appeared to be shocked by all of this. Consequently, I gave her some 10 to 15 minutes to go outside of the courtroom, consider her options, and discuss the entire matter with her mother.

50 . When she returned to the courtroom, she informed me that she had been unaware of the accused’s background, history and current situation, that her mother is suffering from Cancer, and that her responsibilities lay in her work and caring for her mother. Therefore, she did not feel that it would be appropriate for her to undertake the task of being Mr. Dean’s surety with all of the concomitant obligations and responsibilities. 51 .

I take into account the accused’s Criminal Record, and find that the Crown’s case against the accused appears to be rooted in a strong evidentiary foundation, in that he was arrested at the crime scene with the counterfeit cards on his person. I also take account of my finding in relation to the accused’s lack of credibility, a finding that was largely supported by the testimony of Ms. Morgan. 52 . For these reasons, I am of the view that if the accused were released on bail there is a substantial likelihood that he would not come to court and would commit further criminal offences.

Accordingly, since I was not satisfied with the original Bail Program release proposal, and the new plan had collapsed, I ordered the detention of the accused on the primary and secondary grounds. 53 . I undertook to provide the Crown, defence counsel and the court with my Written Reasons within a week. These are my Written Reasons. __________________________________ Signed P. Kowarsky J.P.