R. v. Datta, 2019 ONCJ 195

CITATION : R. v. Datta , 2019 ONCJ 195 DATE : February 19, 2019 Toronto Region ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN v. WILLIAM A. DATTA REASONS FOR JUDGMENT: JUDICIAL INTERIM RELEASE HEARING Hearing Date: February 15, 2019 Judgment: February 19, 2019 Before: Mary A. Ross Hendriks, J.P. Counsel: Ms. E. Pancer, Crown Counsel, Guns and Gangs Mr. H. Aly, Defence Counsel INTRODUCTION: [ 1 ] The accused, William Datta, is a 42-year old man, who resides in Ajax, Ontario.

No other information regarding his personal background was offered to me at his judicial interim release hearing. [ 2 ] This is a reverse onus bail hearing, by virtue of the charges that he currently faces. HIS CHARGES: [ 3 ] Mr. Datta has been charged with 15 counts of serious drug trafficking and weapons trafficking offences on four different sworn Informations, which are all before me at this hearing.

They are set out in detail below. [ 4 ] In Information 18-15008262, it is alleged that on or about October 17, 2018, at the City of Toronto, Toronto Region, he and his co- accused transferred two prohibited firearms, restricted firearms or a non-restricted firearms, namely handguns, knowing that they were not authorized to do so, contrary to s. 99(2) of the Criminal Code .

On the same date, he is also accused of two counts of possessing a prohibited firearm, a restricted firearm or a non-restricted firearm, namely two handguns, for the purpose of transferring them, with or without consideration, while knowingly not being authorized to do so, contrary to s. 100(2) of the Criminal Code . Finally, on the same date, Mr.

Datta is accused of possessing proceeds of property or a thing, namely money of a value exceeding $5000, knowing that all or part of the proceeds had been obtained by an offence punishable by indictment, contrary to s.354(1) of the Criminal Code . [ 5 ] In Information 18-15008372, it is alleged that on or about October 17, 2018, in the City of Toronto, Toronto Region, he and his co- accused trafficked, with or without consideration, a prohibited firearm, namely a 40 calibre Steyr M40 handgun, while knowingly not being authorized to do so, contrary to s. 99(2) of the Criminal Code .

Similarly, they were both charged, on the same date, with trafficking a 40 calibre Smith and Wesson handgun, while knowingly not being authorized to do so, contrary to s. 99(2) of the Criminal Code . On the same date, Mr. Datta was also charged with two counts of possessing handguns for the purpose of transferring it, with or without consideration, contrary to s.100(2) of the Criminal Code . Mr. Datta was also charged on the same date with conspiring with his co-accused to commit the indictable offence of weapons trafficking, by agreeing to traffic firearms, contrary to s. 465(1) (

c) of the Criminal Code .

[ 6 ] In Information 18-15008263, it is alleged that Mr. Datta on or about November 1, 2018, in the Town of Ajax, Region of Durham, possessed a substance included in

Schedule I, namely crack cocaine, for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act (" CDSA "). [ 7 ] In Information 18-15008366, it is alleged that on or about November 1, 2018, at the Town of Ajax, Region of Durham, he is accused of three counts of possessing a substance included in

Schedule I, for the purpose of trafficking, namely, crack cocaine, and powdered cocaine, contrary to s.5(2) of the CDSA . Finally, on the same date, he is alleged to have been in possession of property or a thing, namely $260 (Cdn), a value not exceeding $5000, knowing that all or part of the proceeds had been obtained by an offence punishable by indictment, contrary to s. 354(1) of the Criminal Code . [ 8 ] Crown counsel is seeking his detention on all three grounds. HIS CRIMINAL RECORD: [ 9 ] Mr. Datta's criminal record has been admitted for the purpose of the bail hearing (Exhibit 7), which includes the following entries: 2000 (Toronto) Traffic in

Schedule I substance, contrary to s. 5(1) CDSA ; sentence: 1 day and probation for 1 year 2003 (Toronto) Fail to Comply with Recognizance, contrary to s. 145(1) Criminal Code ; sentence: $50 and 10 days (time served) 2004 (Toronto) Possession of a

Schedule I Substance for the Purpose of Trafficking, contrary to s. 5(2) of the CDSA ; Sentence: 6 months conditional sentence order 2017 (Oshawa) Flight While Pursued by Police Officer, s. 249.1(1) of the Criminal Code and Obstruct Peace Officer, s. 129 of the Criminal Code ; Sentence: $2000 and $750, respectively THE ALLEGATIONS: [ 10 ] Crown counsel provided me, on consent, the following: a typed synopsis of the 15 counts before me against Mr.

Datta (Exhibit 1); a Toronto Police Service ("TPS") Toronto Firearms Enforcement Unit Surveillance Report (Exhibit 2); two Certificates of Analyst from Health Canada (Exhibit 3 collectively); two colour photographs of the seized handguns (Exhibit 4); a photo of the wallet and photo identification of Mr. Datta, plastic bags, bullets and a black cell phone (Exhibit 5); a photo of two black cell phones seized, and the cash seized (Exhibit 6); and a photo of Mr.

Datta at the time of his arrest, beside a photo of a man seen entering a hotel carrying a white plastic bag, for identification purposes (Exhibit 6). [ 11 ] In a nutshell, Crown counsel said that the TPS - Firearm Enforcement Unit have conducted "Project Belair", to investigate firearm importation from the United States into Canada, particularly into the Greater Toronto Area ("GTA"). [ 12 ] The police believe that the co-accused uses the alias, "Prince". On September 6, 2018, an agent met with a man whom police assert is the co-accused, and agreed to buy a firearm from him for $3500.

The agent received a cardboard box that contained a paper bag with a High Point JCP 40 Smith and Wesson inside of it. This firearm was not loaded and no ammunition was provided at this time. Crown counsel asserts that it was understood that ammunition would be provided at a later time. [ 13 ] The agent met with the co-accused again on September 13, 2018, and was given a number of different types of ammunition, none of which matched the Smith and Wesson. [ 14 ] On September 19, 2018, the agent met the co-accused again, with the intention of receiving the appropriate ammunition.

During this meeting, the co-accused told the agent he had another firearm to sell. They agreed to meet at the Crossroads Plaza, Weston Rd and 401 area of Toronto. The agent advised the co-accused that he had a friend who was also interested in purchasing a firearm, and that he would bring him to their meeting that day. [ 15 ] When the three men met, the co-accused had a Bryco Arms Jennings 9 mm semi-automatic handgun. The agent bought it from the co-accused for $3500, and was told he would be provided ammunition for it at a future date.

On this occasion, the co-accused provided 10 rounds of 45 calibre ammunition, which did not match either firearm. [ 16 ] On October 2, 2018, the undercover officer met with the co-accused, in order to receive ammunition for the firearm he purchased, but he was provided with 11 rounds of 45 calibre ammunition, which was once again an incorrect match. [ 17 ] On October 17, 2018, the undercover officer met the co-accused again. They drove together to Woodside Square plaza, near Finch Ave. East and Sandhurst Circle, in Toronto.

As the co-accused and the undercover officer were driving to the plaza, the co-accused called an unknown person on his cell phone and arranged a meeting location. [ 18 ] Shortly after they arrived, a man driving a 2019 silver Acura TLX (CHHP 378) met them. This man, later identified by police as William Datta, gave the co-accused a bag that contained four handguns. The co-accused showed the undercover officer the four handguns inside the vehicle. [ 19 ] The undercover officer purchased two of the four firearms, each priced at $3750. At the time of this purchase, he was given 9 rounds of ammunition.

Once the undercover officer chose two guns to purchase, the co-accused took the remaining two back to the man believed to be Mr. Datta, who drove away. Crown counsel asserts that officers from the TPS - Firearms Enforcement Unit followed this car. [ 20 ] The two firearms purchased by the undercover officer were a 40 calibre Steyr Mannlicher semi-automatic handgun and a 40 calibre Smith and Wesson semi-automatic handgun. Police retrieved the serial numbers for both firearms. [ 21 ] Police ran checks on the silver Acura, and it was registered to an Urmila Datta of Ajax, Ontario. Her address was checked, and

police found several occurrence reports related to William Datta. Officers quickly retrieved a photograph from the Ministry of Transportation ("MTO") for William Datta. [ 22 ] Police followed this Acura to a number of locations that same day. It was late in the day and the windows of the car were tinted, so police were not able to identify Mr. Datta that day. However, they maintain that they never lost sight of this vehicle, or the man believed to be Mr.

Datta. [ 23 ] The police followed this Acura to 9 different locations that day, including the Comfort Inn Hotel, where they obtained images of the man believed to be Mr. Datta on the hotel's surveillance camera entering the hotel and carrying a white bag (Exhibit 8). [ 24 ] On October 23 and 24, 2018, police conducted surveillance on Mr. Datta, and followed him into a bank. A plainclothes officer identified him as the man who sold the firearms. [ 25 ] On November 1, 2018, officers went to the Ajax address of Urmila Datta, and found the same Acura in the driveway. When Mr.

Datta exited the home, and entered this vehicle, police arrested him. [ 26 ] At the time of his arrest on November 1, 2018, he was found to be in possession of the following items on his person: two cell phones in the pouch of his sweatshirt; 9 baggies in his pants, being 7 of white cocaine and 2 purple, and $260. [ 27 ] Also at the time of arrest, a grey garbage bag was found in the console of this car, which contained 8 rounds of .38 special ammunition, as well as a large baggie of what is believed to be cocaine, as well as another baggie of cocaine; a zip-lock bag that contained 5 individual baggies of crack cocaine; a large baggie of purple crack; a black cell phone in the console; and Mr.

Datta's identification was also found inside of this vehicle. [ 28 ] Crown counsel summarizes that at the time of his arrest, he had in his personal possession the following: 2 cell phones; 7 bags of cocaine containing 24.52 grams, and 2 purple bags, now confirmed by Health Canada to be as fentanyl (Exhibit 2), being 1.75 grams and 1.70 grams; plus $260 in Canadian cash. Inside of the vehicle, he had ammunition; and more cocaine.

The total quantity of cocaine (yet to be tested) seized at this time was 9 ounces. [ 29 ] Defence counsel asked the Crown if the undercover officer's notes described him as a light-skinned male, black"? She agreed to return to this point. Later on, she confirmed that yes, it was the notes of the undercover police officer conducting the surveillance who described him as a "light-skinned male, black". THE PROPOSED PLAN OF RELEASE: [ 30 ] Defence counsel called two proposed sureties, who are family friends, and Stephen Tan, of Recovery Science Corporation.

I made an exclusion order after the allegations had been presented prior to hearing their evidence, which is summarized below. Ms. Linnette J. Baccas: [ 31 ] Ms. Linnette Baccas testified that she is 49 years old, and resides in Ajax, Ontario, with her husband, and their 24-year old son. She is a Canadian citizen, and she is not currently a surety. She works at […] in Toronto, and has done so for the last 16 years. She works 9 hours per day, 5 or 6 days a week. [ 32 ] Ms. Baccas knows Mr. Datta, because his mother has been her friend for 25 years.

She testified that she has known him since he was about 14 years old. Their two families are all friends, and they have regular get-togethers. They have a good relationship. Ms. Baccas testified that she has been his surety in the past, along with her husband, and that he complied with his house arrest bail. [ 33 ] Ms. Baccas testified that her home in Ajax, Ontario is worth between $600,000 and $700,000, and that their mortgage is $260,000. She also has about $7000 in RRSPs, but no money in the bank per se . [ 34 ] She testified that her husband has his own construction company, and performs home renovations.

When she is at work, her husband can be with Mr. Datta, or take him to his job sites so that he can assist him with renovations. They did this when they bailed him out previously, and he complied with this house arrest bail. [ 35 ] When asked in chief if she would agree not to leave Mr. Datta home alone, she said that she would be willing to ensure he was never left alone. If she is named as his surety, his friends will not be permitted to visit their home.

She is prepared to search his room and his person to ensure compliance with the bail. [ 36 ] She is prepared to pledge whatever amount is required to secure his release. She understands that if the bail is set at $100,000, she would have to sell her home if he breaches it. [ 37 ] Ms. Baccas is aware that Mr. Datta’s record includes drug trafficking and breach of recognizance. She also understands that he is now charged with drug trafficking and weapons trafficking offences. [ 38 ] Ms.

Baccas is also prepared to enforce a GPS device, to be installed on his ankle, and to pay the fee, which is in the range of $600 to $650 per month. [ 39 ] During cross-examination, she agreed that between her lengthy commuting time and her long shifts, most of the burden of supervising Mr. Datta would fall to her husband, although she said that she would call home during the daytime, and assist with his supervision after work. [ 40 ] Ms. Baccas is aware that he was found in possession of 9 ounces of what is believed to be cocaine, and fentanyl, which can be lethal.

She also understands that the police believe he is trafficking in firearms.

[ 41 ] When asked why Mr. Datta's mother isn't being proposed as a surety, she said that she "isn't sure." She said that she has "never seen any bad relationships" between him and his parents. [ 42 ] Crown counsel questioned her about the affordability of this GPS tracking device. She testified that she earns about $3400 every month in take-home pay. Her husband's income varies, because he is self-employed. Her mortgage payments are $750 per month, and she has other bills. When asked if she can afford to cover this ankle bracelet device, she replied that his mother would have to help with the costs involved.

When the Crown asserted that there is no guarantee anyone else will assist her financially with the cost, and if it is a term of the bail, she will have to cover it, she responded, "It's a tough one." [ 43 ] When Crown counsel asked her pointedly why this was her responsibility, she replied, "I'm putting up my bail." [ 44 ] In re-direct, she testified that she has no other debt besides her mortgage. She understands that if the ankle bracelet is a condition of his bail, she will have to pay for it. [ 45 ] She has an empty bedroom in the upstairs of her home, and Mr.

Datta stayed there when she bailed him out previously. Louis Baccas: [ 46 ] Louis Baccas also testified. He is the husband of Linnette Baccas, and they reside in the same home in Ajax, Ontario, with their son. [ 47 ] He testified that he is almost 58 years old, and that for the last 4 years, he has worked in his own home renovation business. [ 48 ] Mr. Baccas has known Mr. Datta for over 20 years, and he is prepared to be his surety again. He testified that while he was Mr. Datta's surety, on a house arrest bail, there were no breaches of any conditions. [ 49 ] He is willing to ensure that Mr.

Datta never be left alone, and will take him to work sites with him, and have him assist him as a labourer. [ 50 ] He understands that the quantum of this bail could be very high, and that his house is at risk if Mr. Datta breaches his bail, should it be granted. [ 51 ] Mr. Baccas is also willing to have GPS monitoring installed as an ankle bracelet, and he is willing to cover the monthly cost of about $650. [ 52 ] When asked about his income, he explained that it fluctuates between high season and low season. The winter is his low season.

He has a job in mind, but he is awaiting for his contract to be approved by the customer. [ 53 ] When asked why Mr. Datta's mother was not in court, he said that she wanted to attend, but that she didn't fit in the car with the car seat. He confirmed that neither of Mr. Datta's parents were present in court. He said that Mr. Datta's mother had bailed him out in the past, and he breached this bail, which upset her. [ 54 ] When asked how old Mr. Datta was, he said about 41 or 42 years old. Stephen Tan: [ 55 ] Stephen Tan testified as well at this bail hearing. Mr.

Tan is one of the owners of Recovery Science Corporation, which is the company that installs and monitors electronic ankle devices on accused persons. [ 56 ] Mr. Tan explained that his company offers different types of monitoring devices, but the vast majority of them are GPS bracelets, which are installed on an accused's ankle, if that is a condition of his bail. Such a device costs $540 per month, plus tax, for a total cost of $610 per month. [ 57 ] Mr.

Tan explained that even if the sureties run out of money, the corporation will seek to resolve the matter with them, before contacting the police, and that the company will continue to monitor the bail, even without payment, until the police have been duly notified and the accused has been apprehended. The corporation has monitored over 550 bails, and have not terminated any for non- payment reasons. [ 58 ] The device is a bracelet, installed on the ankle of an accused. It does not slip off. If an accused cuts off the ankle bracelet, the corporation will contact the police within 5 minutes of this breach.

Generally, the corporation contacts police within 15 minutes of any breach. [ 59 ] Mr. Tan described the two extremes of how it works. If an accused is on house arrest at all times, the device tracks the location precisely, using GPS technology. While this accused might be able to stand on the front lawn or driveway of the home, he or she would not be permitted to go beyond that point without triggering a breach. [ 60 ] The other scenario is a bail that permits an accused on house arrest to be out based on recognized exceptions. Zones can be created.

Some bails permit an accused to leave the home in the presence of a surety. In that instance, the surety needs to have set up a voice recognition system, be given a password and a toll-free number to call. About 15 to 30 minutes before leaving the home, the surety needs to call and stand down the alert in order to take the accused out of the home. [ 61 ] If an accused leaves the home, and the surety has not called prior to his/her exit to stand down the alert, the corporation contacts the surety and advises the surety of the breach. If the surety authorizes the breach, the corporation stands down.

If the surety does not authorize the breach, the corporation contacts the police. [ 62 ] While the corporation does not have any contracts with the police, the corporation will call the police directly, and the corporation

also invites the officer-in-charge to log into their website to perform routine compliance checks, and to receive weekly alerts, without the accused being notified. In order to achieve this outcome, accused persons are required to sign confidentiality waivers. [ 63 ] In addition to contacting the officer-in-charge of each case to permit them to log into their website, the corporation also has a relationship with the TPS Firearm Bail Task Force, and they are integrating their data, as well. [ 64 ] The technology used by this corporation has improved, and they no longer need to visit a home or use a landline.

It is based on GPS technology, and each bracelet includes a GPS chip and its own SIM card, so the device is self-sufficient. As long as there are cell towers nearby, the device will work. [ 65 ] In terms of zones, the system can include inclusion and exclusion zones, so for example, the device can be programmed to alert police if an accused enters the City of Toronto, when the bail conditions prohibit such entry. [ 66 ] During cross-examination, Mr. Tan admitted that if the surety receives a call regarding a breach, and he lies, the accused may escape detection. However, Mr.

Tan described how some conditions of bail have been crafted, so that any exception to house arrest requires the surety to email the corporation and copy the officer-in-charge, ahead of leaving the home, and stating the intended destination in this email. In one instance, Mr. Tan is aware of the police waiting for the accused at the stated destination to ensure his compliance. [ 67 ] Crown counsel asked Mr. Tan about a situation in which an accused was wearing an ankle monitoring device, and was found at a murder scene, that he had organized. Mr. Tan was aware of this matter. [ 68 ] Mr.

Tan also explained that if the corporation realizes that the surety is lying, the corporation will contact police and ensure that the bail is revoked. [ 69 ] If a condition were to be crafted that required the surety to email the corporation every week with the week's itinerary, including a

schedule of all locations with dates and times, the corporation will not charge anything additional for this requirement. [ 70 ] Mr. Tan believes that about 90% of accused who are on bail, and wearing an ankle bracelet, comply with their conditions. FINAL SUBMISSIONS: Defence Counsel: [ 71 ] Defence counsel concedes that his client is facing very serious charges, and that there is an epidemic of gun violence in Toronto. [ 72 ] However, he maintains that his client has met his onus.

With a house arrest bail, two excellent, proven sureties, and electronic monitoring, he argued that the court does not have to trust his client. [ 73 ] In fact, he assumes that his client's bail will be monitored by both the Guns and Gangs officers and the Firearm Bail Task Force, and that faced with this very high level of scrutiny, his client will be compliant. [ 74 ] In terms of the primary ground concern raised, he submits that there isn't any real primary ground concern at this bail hearing, and that if I have such a concern, the device could include an exclusionary zone around the airport, for example. [ 75 ] In terms of the secondary ground concern raised, even though his client has a related record, drug deals occur in public places.

Since his client will never be left alone, if I order that he is not permitted to have a cell phone, he will have no access to any clandestine locations. He argued that the sureties testified that they will search Mr. Datta's room and his person, he will not be afforded any opportunity to engage in drug transactions. [ 76 ] While the allegations of firearms trafficking are very serious, he made a number of submissions regarding the circumstantial nature of these allegations.

In particular, the transaction occurred in the dark, the car in question had tinted windows, and the investigating officer described the suspect as a light-skinned black male. It is possible that there were other people inside of that vehicle at the time in question, or that individuals may have exited or entered the vehicle prior to the firearms transaction taking place? Thus, the issue of identification is a triable issue. Moreover, defence counsel argues that once the police ran the vehicle in question and formed the opinion that it was Mr.

Datta, it tainted their ability to make positive identification. [ 77 ] Defence counsel also argued that there is a 13-year gap in his criminal record, and that he complied with the two proposed sureties while on his last house arrest bail. He urged me to consider how most accused comply with their bail conditions while wearing an ankle bracelet, simply because they understand the high risk of being caught if they do not. [ 78 ] In terms of the tertiary ground, defence counsel argued that a reasonable person would consider how Mr.

Datta will be completely without any privacy on this bail, wearing an electronic monitoring ankle bracelet, and find that Mr. Datta has discharged his onus. Crown Counsel: [ 79 ] Crown counsel stated that she is at odds with defence counsel on the issue of identity. The police conducting surveillance are trained investigators, and they observed the co-accused get in and out of the front seat of the vehicle associated with Mr. Datta, carrying the bag which contained 4 firearms for sale. The surveillance never lost sight of the car.

She disputes that anyone had the opportunity to exit or enter the vehicle without being seen. The fact that the accused was described as a light skinned black male is not that important, since it was dark out. [ 80 ] The fact that there were 4 firearms for sale means that the accused is not a typical drug dealer who may carry a gun for protection, but a gun trafficker. If two of the guns were sold, two are remaining, and he would presumably know how to obtain them, and could do so with a phone call.

[81] Leaving aside the evidence regarding firearms trafficking, Crown counsel argued that in terms of drug trafficking, Mr. Datta wasfound to be in possession of a vast quantity of cocaine and fentanyl, which is highly toxic. [82] Even if I find that he has met his onus on the secondary ground, she urged me to detain him on the tertiary ground. She arguedstrenuously that he is facing a serious penitentiary sentence, possibly 11 years in total, and that given his prior and related record, thepublic would lose confidence in the administration of justice if he were to be released.

Reply: [83] Defence counsel reiterated that even on the tertiary ground, a reasonable person would also consider the plan of release proposed,and that he had met his onus on this ground, as well. ANALYSIS: The Right to Bail: [84] 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 (the "Charter"), provides that any person charged with an offence hasthe right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartialtribunal, as per

section 11(d); and not to be denied reasonable bail without just cause, as per

section 11(e). [85] Moreover, in R. v. Pearson, [1982] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections 11(

d) and 11(e)of the Charter are "parallel rights". More recently, the Ontario Court of Appeal held in R. v. A.A.C., 2015 ONCA 483 , atparagraph 41 as follows: All accused, including those charged with serious crimes are constitutionally entitled under s.11(

e) of the Charter of Rights andFreedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule anddetention is the exception. A claim for detention of an accused under s.515(10(

c) must be approached in this context. [86] Section 515(10) of the Criminal Code establishes that pre-trial detention is only justified when one or more of the following threeconditions has been 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 anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased 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 thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [87] Crown counsel is relying on the primary, secondary and tertiary grounds to seek Mr. Datta’s detention.

Does Antic and the Bail Ladder Apply to Reverse Onus Bail Hearings? [88] Since this matter is a reverse onus bail hearing, Crown counsel submits that the presumption is in favour of detention. In Mr.Justice Trotter's looseleaf work, The Law of Bail in Canada, 3rd Edition, Carswell,

Chapter 6.3, Mr. Justice Trotter refers to s. 515(3) ofthe Criminal Code as establishing the "ladder principle". However, he then states: The ladder principle is inapplicable to situations in which a reverse onus provision in s. 515(6) is triggered. When this subsection wasenacted in 1976, Parliament made no attempt to reconcile the reverse onus provisions with s. 515(3). It follows that when the onus is onthe accused, he/she ought to be required to justify why the most onerous form of release should not be imposed.

This may well be thereality in practice. [89] Moreover, at this juncture, Crown counsel is correct that R. v. Ishmael, 2019 ONSC 596 , [2019] O.J. No. 474, R. v.Sakhiyar, [2018] ONSC 5767 and R. v. Anderson, [2018] O.J. No. 5246 are Superior Court judgments in which the court has held thatAntic does not apply in reverse onus bail hearings. However, in R. v.

Pascall, [2018] ONSC 2896, the Superior Court did apply Antic ina reverse onus bail hearing. [90] Given that there is a 3 to 1 split from the Superior Court on this issue, I find that I am bound by the majority's view that Antic doesnot apply to reverse onus bail hearings. [91] The constitutional right not to be denied bail without just cause and the right to bail on reasonable terms continue to inform me as Iconsider the statutory onus on Mr. Datta to demonstrate, on a balance of probabilities, why he should be released.

His counsel hasalready posed a house arrest bail, including an electronic monitoring device, and so it is not necessary for me to consider any lesser formof release, in any event.

Primary Ground: [92] Mr. Datta does not have any convictions for failing to attend court, nor does he appear to be a flight risk, in terms of fleeing thejurisdiction, since he has strong ties to the community. [93] The proposed plan of release is very strict, and includes both house arrest with two residential sureties and an electronic monitoringdevice. Although he does have one prior conviction for flight from police, I find that Mr. Datta has met his onus on the primary ground. Secondary Ground: [94] Mr.

Datta's criminal record includes two prior convictions for drug trafficking and one conviction for failing to comply with hisrecognizance. However, these are dated entries. He does not have any prior convictions for firearms trafficking. Allegations of Firearms Trafficking: [95] Dealing with the charges of illegal firearms trafficking, unlawful possession of firearms, and unlawful transfers of firearms, all ofthese very serious charges are predicated on the Crown establishing the identity of the driver of the Silver Acura, at the time of thisundercover police operation on October 17, 2018, since the arrest of Mr.

Datta was not made until November 1, 2018. [96] While the Crown has some solid evidence pointing to Mr. Datta, defence counsel is correct that at this point, it is all circumstantial. The police followed the Silver Acura, and although they claim that they never lost sight of this vehicle or the man they assert is Mr.Datta, during their surveillance made immediately after the police sting, this vehicle made 9 stops before the man whom police allege isMr. Datta entered the Comfort Inn Hotel.

During some of those stops, at least one other male, purportedly Caucasian, entered and exitedthe vehicle. [97] Defence counsel ably argued that the police surveillance notes described the man they believe to be Mr. Datta as a light-skinnedmale, black. However, to be fair to the police, these observations were made in the evening, and the Silver Acura had tinted windows. In my court room, under florescent lighting, I would describe Mr. Datta as brown-skinned, perhaps of mixed ancestry, but I would notdescribe him as black.

Again, this is another triable issue with respect to the issue of identity. [98] Nevertheless, other aspects of the circumstantial evidence regarding firearms trafficking fall in the Crown's favour. The licenceplate of this Silver Acura belongs to Urmila Datta of Ajax, Ontario. When police went to her address on November 1, 2018, they foundthis same Silver Acura that they had followed parked in the driveway of this home, and arrested Mr. Datta as he left this home to enterthis same vehicle.

At the time of this arrest, he was in possession of drugs, both on his person and inside of this vehicle. [99] The establishment of the identity of the firearms trafficker is clearly an issue for the trial court, and the concerns that I haveregarding public safety can be fairly addressed through conditions of bail, at this juncture. Allegations of Drug Trafficking: [100] Turning to the various counts Mr. Datta faces for drug trafficking, the Crown has an overwhelmingly strong Crown case. At thetime of his arrest, Mr.

Datta was found in possession of what appears to be 9 ounces of cocaine, yet to be tested, and two small quantitiesof Fentanyl, which have been tested. [101] Fentanyl is such a lethal substance in minute quantities to both its users, first responders, and others who come into contact with it,that its possession and trafficking are attracting lengthy sentences upon first conviction, see: R. v. Joumaa, 2018 ONSC 317. [102] Mr. Datta has a related record for drug trafficking, albeit dated. The Proposed Plan of Release: [103] The plan of release proposed is excellent.

It includes two solid sureties, who have successfully supervised him in the recent past ona house arrest bail, a residential house arrest, a large quantum to bind their consciences, and an electronic monitoring system governedby GPS, that can include zones. Both sureties have testified that they will never leave Mr. Datta alone, and the plan proposed includesMr. Datta accompanying Mr. Baccas to work as a labourer. They have promised to search his room, his belongings, and to take awayunsupervised access to cell phones.

As defence counsel argued, this plan of release is so tight, it is not necessary for me to trust Mr.Datta. [104] I appreciate that the cost of this electronic monitoring system will be significant for his sureties, but they both testified that they arewilling to pay for it. I also accept the evidence of Mr. Tan that if any sureties default on payment, the corporation will not terminate itsmonitoring services until they have contacted the police and the accused has been apprehended. [105] In R. v. Sheikh, 2018 ONSC 4210 , Mr.

Justice Dambrot was conducting a bail review of a detention order made by HisWorship Wilson, which was upheld. In reviewing and assessing the plan of release proposed, he said the following about the electronicmonitoring component, in paragraph 21 of his judgment, as follows: Fourth, monitoring. I do believe that a condition requiring GPS monitoring will lessen the likelihood of the accused committing furtheroffences. While monitoring provides early warning of geographical breaches, and not conduct breaches, as Crown counsel emphasized, itis still not without significance at this hearing.

First, geographical breaches and conduct breaches are not unrelated. There is unlikely tobe a conduct breach without a geographical breach. And second, monitoring makes it clear to the accused that no breach is likely to goundetected. As a result, the existence of electronic monitoring provides some deterrence to both geographical and conduct breaches. But,of course, it cannot prevent either.

[106] In R. v. Manasseri, 2017 ONCA 226 , Mr. Justice Watt made three important points with respect to the secondary ground,at paragraphs 85 to 88, which are reproduced verbatim: First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all thecircumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct ("commit acriminal offence") or an interference with the administration of justice.

Second, in connection with the specified circumstances encompassed by the clause, "including any substantial likelihood that theaccused will, if released from custody commit...", the italicized words refer to a probability of certain conduct, not a mere possibility.And the probability must be substantial, in other words, significantly likely.

Third, where, as here, the onus of showing cause for release falls on the accused, that accused must demonstrate not only that his or herdetention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public. [107] Clearly, the allegations of trafficking in firearms and fentanyl puts both the protection and the safety of the public at serious risk. However, with the imposition of very strict bail conditions, the probability of any future recidivistic conduct falls well below the level ofsubstantial. [108] Mr. Datta has met his onus on the secondary ground.

Tertiary Ground: [109] Detention is justified on the tertiary ground if it is necessary to maintain confidence in the administration of justice. Moreover, inR. v. St.

Cloud, 2015 SCC 27 , [2015] 2 SCR 328, 2015 SC 27 , at paragraph 54, the Supreme Court of Canada foundthat the tertiary ground was not limited to exceptional circumstances, but that the Crown must prove the detention of the accused wasjustified to maintain the public's confidence in the administration of justice. [110] In terms of the four enumerated factors listed under the tertiary ground, I will deal with each of them below, in order. [111] First, in assessing the apparent strength of the Crown's case, I am mindful that at the time of his arrest, Mr.

Datta was found inpossession of what appears to be 9 ounces of cocaine, and what has been proven to be 3.45 grams of fentanyl, 2 cell phones, and somecash.

Objectively, the Crown has an overwhelmingly strong case on the allegations of drug trafficking. [112] In terms of the allegations of firearms trafficking, the Crown has a reasonably strong case based on circumstantial evidence.Nevertheless, the issue of identity is a live issue at this juncture. [113] In terms of the gravity of the offence, while these offences are very serious, they are not violent. if he is convicted of all of them,given his related record for drug trafficking, he is facing a lengthy penitentiary sentence.

The trafficking of fentanyl, for a first offence,recently attracted a 4-year sentence, see: Joumaa, and if convicted, this is his third such offence. The trafficking of firearms usuallyresults in a mandatory minimum three-year sentence, although this is subject to Charter challenges. [114] In analyzing the circumstances of the offence, Mr.

Datta was found in possession of drugs but not firearms at the time of his arrest.There is no evidence that he used a firearm to commit an offence, the firearms offences, taken at their highest, is the sale of firearms.There is no evidence of any gang involvement, nor are these offences violent. It is certainly arguable, however, that the dealing offirearms and fentanyl is heinous, as per paragraph 71 of St. Cloud, given the high number of firearm-related deaths and fentanyl-relateddeaths occurring in Toronto. [115] In terms of the fourth factor, I am absolutely certain that Mr.

Datta is facing a penitentiary sentence if convicted of the drugtrafficking charges, given his antecedents, and a very lengthy sentence if he is also convicted of firearms trafficking. [116] In Manasseri, at paragraph 95, Mr. Justice Watt said the following with respect to the tertiary ground: A "reasonable member of the public" is familiar with the basics of the rule of law in Canada and with the fundamental values of ourcriminal law, including those protected by the Charter.

He or she knows the importance of the presumption of innocence and the right toliberty and that these are fundamental rights guaranteed by our Constitution. The reasonable member of the public also expects, perhapseven more so now, that anyone charged with a crime is entitled to be tried for it within a reasonable time: St-Cloud, at para. 79. [117] Given the live issue with the identity of the firearms trafficker, I find that a reasonable member of the public would expect thecourt to grant Mr.

Datta a strict bail, based on the overwhelming evidence of drug trafficking and his related antecedents, and permit himhis constitutional right to run a trial on all of these allegations, before he is detained. [118] For these reasons, Mr. Datta has met his onus on the tertiary ground. ORDER: [119] Mr. Datta is ordered to enter into a recognizance, on the following conditions: (

a) You have two sureties to secure your release: (

i) Linnette Baccas in the amount of $50,000; and (ii) Louis Baccas in the amount of $50,000; (

b) You must reside with both of his sureties at their address in Ajax, Ontario, and follow the rules of the home;

(

c) At your own expense, you will be subject to GPS monitoring by Recovery Science Corporation ("RSC"), which shall include: (

i) entering into RSC's Participant Agreement and complying with its terms; (ii) wearing a GPS ankle bracelet at all times; (iii) permitting RSC to install supplementary equipment and to inspect, replace or maintain equipment as it deems necessary; (iv) complying with RSC leave notification and battery charging requirements; and (

v) cooperating fully with RSC staff. (

d) House Arrest with Exceptions: Remain in your residence, at all times, except for medical emergencies, involving you, or unless you are in the direct and continuous presence of one of your sureties. You are not permitted to leave this residence unless you are in the direct company of one of your sureties, who has given prior telephone notification to RSC that same day, of your permitted absence from the home; (e)Exclusion Zone with Exception: Do not enter the City of Toronto, unless you are in the continuous presence of one of your sureties, who has given prior telephone notification to RSC that same day, prior to your permitted absence from the home; (

f) Exclusion Zone: Do not leave the Province of Ontario; (

g) Any future variations to this bail must be made on notice to RSC. RSC is permitted to continue to its monitoring of you until it has independently confirmed that its services are no longer required; (

h) By agreeing to the conditions of this bail, you understand and agree that RSC may permit the police to monitor you electronically, without your prior consent or knowledge; (

i) do not possess any weapons as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything to be designed to be used or intended for use to cause death or injury or to threaten or intimidate any person); (

j) do not apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code ; (

k) do not possess any cell phones or other electronic computer devices unless you are in the direct company of one of your sureties; (

l) do not possess or consume any unlawful drugs or substances as defined in the CDSA , unless you have a valid prescription issued in your name; and (

m) Do not have any contact or communication with the co-accused, except through counsel to prepare a defence or for required court appearances. Dated at Toronto, this 19th day of February, 2019. __________________________ Mary A. Ross Hendriks, J.P.