R. v. Summers, 2019 NLCA 24

Her Majesty the Queen (applicant/appellant) v. Blair Summers(respondent) (19/28) Indexed As: R. v. Summers 2019 NLCA 24 4 C.A.N.L.R. 352 Court of Appeal of Newfoundland and Labrador Goodridge J.A. April 15, 2019

Summary: The Crown applied pursuant to section 679(7.1) of the Criminal Code to detain the respondent pending a new trial, after a previousconviction was overturned by the Court and a new trial ordered. Held: Application allowed. Goodridge J.A.: Given that some of the charges that Mr. Summers is facing are punishable by imprisonment for life, section 515(6)(

d) ofthe Code places the onus of proof, on a balance of probabilities, on the accused to show cause why detention in custody is not justified. Pursuant to section 515(10)(

b) of the Code, Mr. Summers has been unable to show cause why his detention in custody is not justifiedbecause it is not necessary for the protection or safety of the public. His pattern of criminal activity over a 10-year period, and non-compliance with court-imposed conditions, indicates that there is a substantial likelihood that Mr. Summers will, if released fromcustody, commit a criminal offence. The offences that he has committed in the past (in particular pharmacy break and enters to stealnarcotics) would indicate that detention is necessary for the protection and safety of the public. Moreover, pursuant to section 515(10)(

c) of the Code, a reasonable member of the community, properly informed, would consider thatMr. Summers’ detention is necessary to maintain confidence in the administration of justice. The Crown has a strong case. The gravity ofthe offences is high based on the potential prison terms. There is no doubt that there will be a lengthy term of imprisonment if guilt isestablished. There is no concern here that pre-disposition custody will exceed any sentence ultimately imposed, if convictions areentered. The respondent is therefore ordered remanded into custody. Cases cited: R. v. Manasseri, 2017 ONCA 226 R. v.

Barbeau (1998), (QC CA), 131 C.C.C. (3d) 350 (Que. C.A.) R. v. Normore, 2018 NLCA 27 R. v. Myers, 2019 SCC 18 R. v. Summers, 2017 NLCA 20 R. v. Pearson, (SCC), [1992] 3 S.C.R. 665

Counsel: R. Neil Smith, for Her Majesty in Right of Canada; Dana E. Sullivan, for Her Majesty in Right of Newfoundland and Labrador; and Stephen P. Orr, for the respondent. This application was heard on April 4 and 8, 2019 before Goodridge J.A. The following judgment was filed on April 15, 2019 by Goodridge J.A. ______________________________________________________________ Goodridge J.A.: INTRODUCTION [1] Blair William Summers, age 34, was charged with various offences under the Criminal Code and the Controlled Drugs andSubstances Act. The charges were dismissed at the original trial in Provincial Court.

On March 4, 2019, the Court of Appeal found thatthe Trial Judge had erred in excluding relevant evidence; a new trial was ordered (2019 NLCA 11). [2] The Crown wants Mr. Summers detained in custody pending the new trial and applies pursuant to section 679(7.1) of theCriminal Code for an order to that effect. [3] The Crown relies on section 515(10)(b), commonly referred to as the secondary ground, and section 515(10)(c), commonlyreferred to as the tertiary ground, in seeking pre-trial detention. Under these two provisions, the court assesses whether Mr.

Summers’detention is necessary for the protection and safety of the public, or for maintaining confidence in the administration of justice. JURISDICTION [4] During the time between the order for a new trial and an accused’s first appearance in the trial court, a judge of the Court ofAppeal has exclusive jurisdiction over the release or detention pending the new trial (see paras. 40 and 41 of R. v. Manasseri, 2017ONCA 226 and para. 6 of R. v. Barbeau (1998), (QC CA), 131 C.C.C. (3d) 350 (Que. C.A.)).

Section 679(7.1)provides for this exclusive jurisdiction: Where, with respect to any person, the court of appeal … orders a new trial,

section 515 … applies to the release or detention of thatperson pending the new trial or new hearing as though that person were charged with the offence for the first time, except that thepowers of a justice under

section 515 … are exercised by a judge of the court of appeal. ISSUE [5] The charges that Mr. Summers is facing include, inter alia, offences under the Controlled Drugs and Substances Act that arepunishable by imprisonment for life. In that situation section 515(6)(

d) of the Code places the onus of proof, on a balance ofprobabilities, on the accused to show cause why detention in custody is not justified. The issue is whether Mr. Summers has met this‘reverse onus’ and established on a balance of probabilities that his detention pending the new trial is not justified. PROCEDURE [6] Mr. Summers filed an affidavit, and entered, with the Crown's participation and consent, a book of documents.

I allowed Mr.Summers to be cross-examined, but indicated during the hearing that leave to cross-examine, or the reception of other viva voceevidence, for a section 679(7.1) hearing, will be at the discretion of the presiding judge. The existing court record from the original trialwas considered as well. While the factual findings of the original trial will require re-proof at the new trial, they are relevant, albeit non-binding, considerations on an application for detention pending a new trial (R. v. Normore, 2018 NLCA 27, at para. 34). CURRENT CHARGES [7] On June 25, 2015, Mr.

Summers was charged with break and enter into a pharmacy, possession of property obtained by crime,possession of break and enter tools, breach of probation, possession of cocaine, and possession for trafficking in scheduled substancesunder the Controlled Drugs and Substances Act, including fentanyl and oxycodone.

The events leading to these charges occurred twodays earlier. [8] On June 23, 2015, a burglar alarm at Tricon Pharmacy was activated at 4:20 A.M., alerting police to a possible break and enter.One of the responding officers, Corporal Clarke, while driving toward the pharmacy, observed a blue Jeep Compass travelling in theopposite direction at a very high rate of speed, followed a few seconds later by a black Dodge Ram. An RCMP Intelligence Bulletinissued on June 18, 2015 identified Mr.

Summers as a suspect in other pharmacy break and enters, and noted that a blue Jeep Compasswas one of the vehicles that he was using. Corporal Clarke activated his emergency lights, made a U-turn, and followed. Despite

travelling at up to 150 kilometres per hour in pursuit, Corporal Clarke was not able to catch up. Soon after, another police officer, Constable Francis, spotted the Jeep heading south on route 70 toward the intersection with the Trans-Canada Highway. He alerted other police officers and the Jeep was stopped while traveling east on the Trans-Canada Highway. Mr. Summers was one or the occupants in the Jeep, and he was arrested at the scene.

All of the narcotics that were stolen from Tricon Pharmacy (oxycodone, dilaudids, morphine) and various tools consistent with committing a break and enter were found in the Jeep. A subsequent search of Mr. Summers’ home in St. John’s resulted in discovery of a map with the location of various pharmacies highlighted, including Tricon Pharmacy. A number of items consistent with drug trafficking were also found at his home. [ 9 ] On July 3, 2015, a Provincial Court Judge denied bail and ordered Mr. Summers’ detention in custody pending his trial .

On August 3, 2017, a Supreme Court Judge (during a bail review hearing) reaffirmed that Mr. Summers must remain in custody pending his trial (see para. 55 of R. v. Summers , 2017 NLTD(G) 141). Both judges justified pre-trial detention on the secondary and tertiary grounds set out in sections 515(10) (

b) and (

c) of the Criminal Code , i.e. protection and safety of the public, and maintenance of confidence in the administration of justice. As it has turned out, all of Mr. Summers’ time in pre-trial custody, to date, has been credited against sentences for other crimes that were processed through the courts after his June 23, 2015 arrest. Accordingly, his past time in custody is not counting toward any sentences that might be imposed on the current charges, should he be convicted.

LAW [ 10 ] In the pre-trial context, release – at the earliest opportunity and in the least onerous manner – is the default presumption in Canadian criminal law ( see R. v. Myers , 2019 SCC 18 , at para. 1 ). This default presumption is overcome if the Crown shows cause, on one or more of the grounds in section 515(10) of the Criminal Code , that pre-trial detention is necessary. That provision states: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

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 punishment of imprisonment for a term of three years or more. [ 11 ] In this case, as stated above, the usual onus on the Crown is reversed. Mr. Summers has the onus to show cause why his detention in custody is not justified. This reverse onus arises here by virtue of section 515(6)(

d) of the Code : Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged (

d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence. [ 12 ] The secondary ground detailed under section 515(10)(

b) seeks to guard against recidivistic conduct on release. On this secondary ground, Mr. Summers must show that his detention is not necessary for the protection or safety of the public. This determination is to be made on the basis of all the circumstances, including any substantial likelihood that he will, if released, commit a criminal offence or interfere with the administration of justice. [ 13 ] The tertiary ground detailed in section 515(10)(

c) holds that detention is justified if it is necessary to maintain confidence in the administration of justice. Whether detention is or is not necessary on this ground is to be determined by a consideration of all the circumstances, but in particular, the four factors that Parliament has specified, namely, strength of the prosecution's case, gravity of the offence, circumstances surrounding the commission, and the potential for a lengthy term of imprisonment (see R. v. St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328 , at para. 35 ).

The combined effect of these four factors must be considered in the context of a balancing exercise that includes any other relevant circumstances. Green J.A. discussed this balancing exercise at para. 43 of R. v. Normore , supra .: The primary focus in determining whether detention is necessary to maintain confidence in the administration of justice is on the four factors listed. ( Hall , para. 41). It is their "combined effect" which must be considered in the context of a "balancing exercise" ( St-Cloud , para. 55).

As well, it is "all" relevant circumstances that must be considered, so the list of circumstances is not exhaustive. Other factors such as age, criminal record, physical or mental condition, membership in a criminal organization, anticipated trial date and the status of the victim may also be relevant ( St-Cloud , para. 71). ANALYSIS [ 14 ] Mr. Summers says that his history of crime is forever behind him, that he is committed to a clean start to life without crime, and that there is no substantial likelihood of recidivism. As evidence of his commitment to change, Mr.

Summers detailed several rehabilitation programs that he voluntarily pursued during his recent time in custody and on parole: dialectical behavior therapy , art

therapy, recovery therapy, healthy living, seeking safety, and yoga. A letter from the Social Worker at Emmanuel House (the halfwayhouse where he currently resides) was part of the consent exhibits, and it states that during parole Mr. Summers “demonstrated acommitment to participating and attending all aspects of the residential treatment program … availing of both individual and grouptherapy sessions”. [15] Mr. Summers outlined the basics of a release plan: reside with his mother in Portugal Cove-St. Philip’s; seek employment or goback to school; and file a $5,000 surety from his mother. Mr.

Summers has some experience operating bars or clubs, but he has littleother work experience. He agreed that he could consider other options, like pursuing a diploma in music production, a field in which hehas skill and some experience. [16] Mr. Summers’ mother, Rita Summers, confirmed her agreement to serve as a surety and post a bond of $5,000.

She promised toreport to police if there is any violation of release conditions, and acknowledged that she could be liable to pay the $5,000 if there wasany breach of release conditions. [17] There is no recent history to guide the Court is assessing the risk to public safety should Mr. Summers be released, because hehas been continuously in custody or on parole since June 23, 2015.

He was released under the supervision of a parole officer onDecember 9, 2018, returned to custody last month due to an alleged parole violation, re-released on parole this month, and is currentlyresiding at Emmanuel House. [18] Prior to June 23, 2015, there is 10-year history of uninterrupted criminal activity. The record shows resumption of criminalactivity when not in custody; the record reveals a disregard for court imposed conditions of release.

The temporary suspension of parolelast month, owing to an alleged parole violation, is part of the picture. [19] The more serious crimes, during that 10-year history prior to June 23, 2015, involve five pharmacy break-ins and one armed-robbery. These six convictions attracted custodial sentences totaling more than ten years. The pharmacy break and enters involved thetheft of drugs, principally narcotics. As stated at para. 6 of R. v. Summers, 2017 NLCA 20, it can be assumed that the drugs were for saleat the street level for profit.

The street trade in narcotics inflicts a high cost on society, including addictions, criminal activity to fundaddictions, violence to eliminate competition, and violence to collect debts. Lamer C.J.C. spoke of these public safety concerns in R. v.Pearson, (SCC), [1992] 3 S.C.R. 665 at 694-695, referring to the fierce battles for control of territory, violent action toobtain the money, and the personal brutality and social dramas that result. At 695 Lamer C.J.C. spoke of the illicit trade of narcotics: “… [T]rafficking [in narcotics]… is often a business and a way of life.

It is highly lucrative, creating huge incentives for an offender tocontinue criminal behaviour even after arrest and release on bail”. [20] These public safety risks arise from the criminal activity that Mr. Summers has engaged in during the past, and for which he isnow charged with repeating. [21] The risk of Mr. Summers’ recidivism is informed by his past behavior. He received a sentence of 2.5 years for armed robbery in2004, but on release, immediately resumed his criminal lifestyle.

By 2007 he had amassed a further twenty criminal convictions. [22] The prior pharmacy break and enters, for which convictions have been entered and sentences imposed, occurred in 2011 and2015. The map found at Mr. Summers’ home, and his participation in so many pharmacy break and enters, suggests that he is a keyplayer. The RCMP Intelligence Bulletin dated June 18, 2015 says that there is reason to believe that Mr. Summers is the leader directingthese pharmacy break and enters: Over the past two years, [RCMP] detachments … have responded to a number of pharmacy break and enters ….

There is reason tobelieve that the majority of these break and enters have been completed by the same group being led by Blair William Summers. [23] There are many other convictions during that 10-year period: fraud (19 convictions), carrying a concealed weapon (1), disguisedwith intent (1), resisting or obstructing a police officer (1), failure to appear in court (2), and failure to comply with probation terms,undertakings or recognizances (9). On these last two items, we see that Mr.

Summers has a pattern of non-compliance with court-imposed conditions when released on probation or on judicial interim release: ● June 14, 2004 -- failure to comply with a probation order; ● June 16, 2004 -- failure to comply with a probation order; ● December 1, 2004 -- failure to comply with undertaking or recognizance; ● March 20, 2005 -- failure to comply with undertaking or recognizance; ● May 20, 2005 -- failure to comply with a probation order; ● May 20, 2005 -- failure to comply with undertaking or recognizance; ● November 30, 2005 -- failure to appear or comply with appearance notice; ● June 30, 2011 -- failure to comply with undertaking or recognizance (two separate incidents); ● January 3, 2012 -- failure to comply with undertaking or recognizance; and ● May 29, 2015 -- failure to appear or comply with appearance notice. [24] On the secondary ground, I find that Mr.

Summers has been unable to show cause why his detention in custody is not justified.The pattern of criminal activity over a 10-year period, and non-compliance with court-imposed conditions, supports my view that there is

a substantial likelihood that Mr. Summers will, if released from custody, commit a criminal offence. The offences that he has committed in the past (in particular the pharmacy break and enters to steal narcotics) would indicate that detention is necessary for the protection and safety of the public. [ 25 ] On the tertiary ground, I also find that Mr. Summers has been unable to show cause why his detention in custody is not justified. A reasonable member of the community, properly informed, would consider that Mr. Summers’ detention is necessary to maintain confidence in the administration of justice.

The Crown has a strong case. The gravity of the offences are high based on the potential prison terms (the drug trafficking charge has a potential sentence of life in prison). There is no doubt that there will be a lengthy term of imprisonment if guilt is established. The sentence imposed for the one count indictment (pharmacy break and enter) in May 2016 was three years (upheld on appeal) and the current nine-count indictment (which includes a pharmacy break and enter) could reasonably be longer. The wait time for the new trial is six to eight months.

In the circumstances, there is no concern here that pre-disposition custody will exceed any sentence ultimately imposed, if convictions are entered. CONCLUSION [ 26 ] For these reasons, I find that Mr. Summers has failed to show cause why his detention in custody is not justified. The Crown’s application is allowed and, pursuant to section 679(7.1) of the Criminal Code , I order that Mr. Summers shall be remanded into custody until the current charges are dealt with according to law. Application allowed.