WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. Order directing matters not to be published for specified period.

(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Case Name: R. v. Khan Facey

Between: Regina, and Khan Facey

Court: Ontario Court of Justice

Location: Toronto, Ontario

Judge: P. Kowarsky J.P.

Heard: April 27, 2012

Judgment: April 30, 2012

Counsel:

• Crown Counsel: Mr. D. Caruthers
• Defence Counsel: Mr. L. O'Connor

A. OVERVIEW

A. Overview

1Khan Facey appeared before me on April 27, 2012. After hearing his application for judicial interim release, I adjourned the matter to today, April 30, 2012 for judgment.

The accused is charged with:

• Robbery while armed with a firearm;
• Aggravated Assault; and
• Careless storage of a firearm.

2The circumstances surrounding the commission of the offences and the level of violence which the accused is alleged to have used are disturbing and horrendous in the extreme.

3At the request of defence counsel at the commencement of the hearing, I ordered a Publication Ban pursuant to section 517(1) of the Criminal Code.

4By virtue of the nature of the charges, which include the use of a firearm in the commission of the alleged offences, the onus is reversed. Accordingly, in order to secure his release on bail, the accused must satisfy the court on a balance of probabilities, on all three grounds set out in section 515(10) of the Criminal Code, that his pre-trial detention is not justified.

5The accused does not have a Criminal Record nor any outstanding criminal charges so that this appears to be the first time this 29 year-old man has ever been involved with the Criminal Justice System. He is married, and lives with his wife, his two young children and his wife's young daughter from a previous relationship, in a home, owned by his wife. Until December of 2011, when he was laid off, he was employed as a truck driver for a construction company.

6When I heard the allegations as read into the record by Crown Counsel, I was perplexed that this person would be charged with such violent and life-threatening offences for no apparent understandable reason. In this regard, I was reminded of the words of the Quebec Court of Appeal in R. v. Rondeau (1996), 1996 CanLII 6516 (QC CA), 108 C.C.C. (3d) 474 at page 480:

The more a crime is unexplained and unexplainable, the more worrisome bail becomes for society.

7However, the testimony of the three proposed sureties, particularly the accused's wife and his mother, rendered it very clear to me that the accused's significant gambling addiction was in all likelihood, the root cause of this apparently unexplained shocking and bizarre criminal behaviour. So serious were the complainant's injuries from the robbery and the beating with the firearm that he had to be treated in hospital; he was given numerous stitches for his wounds, and an MRI revealed a haematoma in the brain. Although the complainant was released from the hospital, it remains uncertain at this time as to whether the brain damage will be an ongoing medical concern or not.

B. THE ALLEGATIONS

B. The Allegations

8In summary, the allegations are as follows:

a) The complainant, Harold Gerstel, is the owner and operator of a business known as "Harold the Jewellery Buyer" located on Bathurst Street in Toronto. This business incorporates the purchase of jewellery from customers seeking to sell, as well as loans made to customers on the security of their jewellery, which is deposited with Mr. Gerstel until the agreed amount of the loan plus interest has been paid or the agreed term for repayment has elapsed, in which latter event, Mr. Gerstel keeps the deposited jewellery, and the loan is not repaid.

b) On Sunday the 15th of April 2012, the accused entered the store and requested a loan from Mr. Gerstel. They agreed that as security for the loan, the accused would deposit two diamond rings with Mr. Gerstel who would lend him $4000.00, repayable with interest. The transaction was completed after Mr. Gerstel obtained the accused's identification from his Driver's Licence which the accused produced.

c) On the following day, Monday April 16, 2012 the accused once again entered the store, and requested a further loan of $4000.00. A transaction similar to the one which had occurred the day before was completed. Two more diamond rings were deposited by the accused with Mr. Gerstel who lent the accused a further $4000.00.

d) On Friday, April 20, 2012, the accused returned to the store. He informed Mr. Gerstel that he preferred to sell the 4 diamonds rings to him, and he requested that Mr. Gerstel provide him with the price that he was prepared to pay for the 4 rings. Mr. Gerstel told the accused that he was prepared to pay a total of $9000.00, namely $1000.00 more than the $8000.00 loan. Mr. Facey then left after informing Mr. Gerstel that he would let him know.

e) Later that same day, Friday April 20, 2012, the accused returned to the store. He informed Mr. Gerstel that he was dissatisfied with the price Mr. Gerstel had offered because the rings were worth more. Mr. Gerstel agreed to remove the rings from the safe, and to re-examine them with a view to determining a final price which he would be prepared to pay.

f) As soon as this occurred, the accused pulled out a black handgun; he violently and viciously attacked Mr. Gerstel, beating him on his body and head with the gun. Mr. Gerstel tried to grab the gun from the accused in an attempt to defend himself. The accused grabbed the diamond rings and the electronic door opener, and made good his escape. Severely wounded and bleeding profusely, Mr. Gerstel called the police who arrived on scene shortly after the attack. An ambulance rushed Mr. Gerstel to the hospital.

g) The entire event as well as the three previous occasions on which the transactions concerned were concluded were all captured on the store's video surveillance system. In addition, the accused had previously provided Mr. Gerstel with his Driver's Licence. Consequently, the police were able to identify the accused without difficulty, and he was arrested and charged accordingly.

h) The police subsequently executed a Search Warrant at the accused's residence, where they located and seized the clothing that the accused was seen wearing during the robbery as well as a 9 mm Beretta handgun which was hidden in the garage. It appeared that the handgun had some blood and tissue on its surface, and the gun was sent to Forensics for examination.

i) Crown Counsel, Mr. Caruthers, informed the court that the accused does have a valid Firearms Acquisition Certificate. However, according the police, the accused purchased the 9 mm handgun on April 17, 2012, the day after the accused had deposited the second pair of diamond rings with Mr. Gerstel. The compelling inference is that the accused had purchased the gun for the specific purpose of committing the armed robbery.

C. THE PROPOSED PLAN OF RELEASE

C. The Proposed Plan of Release

9Defence Counsel, Mr. L. O'Connor, presented three proposed sureties who offered to pledge a total of $100,000.00, and together they will monitor all activities of the accused on a strict house arrest release with constant supervision. A major additional component of the plan is that the accused would undergo intensive therapy to address what appears to be the root cause of his criminal behaviour, namely his escalating serious gambling addiction.

10Alyssa Wilson is Khan Facey's wife. They have known each other for 8 years, and have been married for two years. They have two young children, the youngest of whom is 2 months old. She owns the matrimonial home where they all reside together with Ms. Wilson's young daughter from a previous relationship.

11She is and has been employed since 1998 in her family's trucking business. Her hours are generally flexible. She is currently on maternity leave for a year, although this can be extended if necessary since she also works from home. She purchased her home two years ago for $1.1 million, and currently has equity of about $350,000.00 in it. She is pledging $50,000.00 to secure the release of her husband on bail.

12Ms. Wilson testified that her husband has had a gambling problem for some 10 years, although she had no idea that it had reached such a severe addiction level. She was aware that her husband had a Firearms Acquisition Certificate. He had told her that if he purchased a gun, he would use it only at a shooting range. However, she testified that she did not know that he had actually purchased a gun, and that she had told him that she never wanted a gun in her home. The police informed her that her husband had purchased the gun on April 17, 2012.

13She will ensure that the accused receives the counselling and treatment which he requires. He will be supervised closely by her as well as by the accused's mother who will be moving into their home, and they both will be assisted by the third proposed surety, the accused's friend, Moussa Tahlil, and numerous other family members who live close by.

14Ms. Wilson has already contacted the Centre for Addiction and Mental Health in Toronto with a view to setting up gambling addiction treatment and counselling for the accused, and for herself in relation to these events and their impact on her family situation. She is aware that her husband has been deceitful towards her in regard to his gambling addiction. In fact, the diamond rings which he was planning to pawn, were hers. But she is confident that the plan of supervision will be strictly applied, and ultimately will lead to his rehabilitation.

15The accused's mother, Sharon Gray, testified that she is a Registered Nurse, who graduated as such in 1993. She has been employed as a nurse at the Centre for Addiction and Mental Health in Toronto for 15 years, and has extensive knowledge and experience in dealing with mental health and addiction issues, and the required treatment and counselling therefor.

16She testified that she has known about her son's gambling problems for a number of years, and has tried to persuade him to apply for the treatment and counselling which are available through the Centre for Addiction and Mental Health. However, he has to apply personally, which he did not do despite her urging.

17Ms. Gray is prepared to take a year off work, and to move into the home with her son and his family in order to ensure that he is properly supervised at all times. However, she did say that she would not sign as a surety for him unless and until she is completely satisfied that he is sincere in his willingness to take the in-depth treatment and counselling for as long as it is needed for his recovery and rehabilitation. If required, she would be willing to enrol her son in a Residential Treatment facility "even if I have to pay for it."

18Consequently, until Mr. Facey's willingness to undergo treatment and counselling has been satisfactorily established, his mother is adamant that he will remain in custody. Ms. Gray was emphatic that unless her son's gambling addiction is properly addressed, "I would be scared for the public's safety." If her son is not strictly complying with his bail conditions she will have no hesitation in coming back to court to "withdraw as surety."

19Thirty-two–year-old Mr. Moussa Tahlil, testified that he and the accused have been friends for 5 years. He owns his landscaping business, and is prepared to offer Mr. Facey a job there. He has equity in excess of $250,000.00 in his home in the Kipling Avenue and Bloor Streets area of Toronto, which is about a five minute drive from the home of the accused and his family. Although he did know that the accused was a gambler, he had no idea of the severity of the addiction. Mr. Tahlil is willing to pledge $50,000.00 to secure the release of the accused, and to play a major role in controlling and supervising him so as to ensure full compliance with his bail conditions.

D. THE SUBMISSIONS

D. The Submissions

20At the conclusion of the testimony, the Crown informed the court that, from his perspective, the accused had met his onus on the Primary and Secondary Grounds having regard to the proposed plan of supervision. The Crown's concern was on the Tertiary Ground only. I was extremely impressed by the Crown's submission, and compliment Mr. Caruthers for his fair and honest assessment of the case at that stage of the proceedings.

21I agreed, although I was of the view that the release plan might have to be tightened up somewhat in relation to public safety concerns. Nonetheless, I conceded that Defence Counsel needed only to address me on the Tertiary Ground in his submissions. To put this into perspective, the accused's onus was to satisfy the court, on a balance of probabilities, that if he were to be released on bail, the administration of justice would not be brought into disrepute thereby so that the public's confidence in the administration of justice would be maintained.

22Defence Counsel was realistic and completely fair in his submissions. He had no qualms whatsoever in conceding that the crimes were troubling and shocking, and that the four factors listed in section 515(10)(c) were at an extremely high level. He agreed that the Crown's case appeared to be rooted in a very strong evidentiary foundation, that the crimes were grievous in nature, that the circumstances surrounding the commission of the offences were such that the complainant, an older, unsuspecting, innocent businessman, was viciously attacked and seriously wounded during the robbery, that a gun was used during the commission of the offences and that in all likelihood, the accused was facing a significant period of incarceration in the event of his being found guilty of these crimes.

23Both Counsel submitted the case of R. v. E.M.W. 2006 CanLII 31720 (ON CA), [2006] O.J. No. 3654 in which the Ontario Court of Appeal considered the issue of the Tertiary Ground in relation to an accused who had applied for bail on a charge of First Degree Murder. The Appeal Court reversed the decision of the Court below, and ordered the detention of the accused. At paragraph 25, the Court stated as follows:

Here, the bail judge placed decisive weight on the quality of the respondent's bail arrangements. By doing so, he erred by not considering whether the tertiary ground established a separate and distinct basis for denying bail. Having quite appropriately considered the level of public concern about safety in this case, the bail judge erred by not going on to consider the effect the release of the respondent would have more broadly on the public confidence in the administration of justice.

24Counsel also referred me to the following dictum at paragraph 32:

Section 515(10)(c) is designed so that a consideration of all the circumstances with special regard to the four key factors will result in a determination that maintains the public's confidence in the administration of justice. For example, where each of the four factors is assessed as having maximum force, a determination that refusal of bail is necessary to maintain public confidence in the administration of justice is entirely to be expected.

25Defence Counsel submitted that if the accused were to be released his rehabilitation process will be commenced forthwith; whereas if he were to be detained now, it would be a significant amount of time until the accused would be able to commence his treatment, counseling and rehabilitation.

26While I found those comments to be worthy of consideration, the question still remained as to whether the release would result in the public's losing confidence in the administration of justice.

E. ANALYSIS

27In R. v. Nguyen (1997), 1997 CanLII 10835 (BC CA), 119 C.C.C. (3d) 269 (B.C.C.A.), Chief Justice McEachern of the British Columbia Court of Appeal, stated that a member of the public making an assessment of the necessity for detention on the tertiary ground -

"..... must be one properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case".

28This dictum was quoted with approval by Chief Justice McLachlin in R. v. Hall, 2002 SCC 64 (CanLII), [2002] 3 S.C.R. 309.

29In R. v. B.S., 2007 ONCA 560 (CanLII), [2007] O.J. No. 3046 (O.C.A.) Chief Justice Winkler expressed the Court of Appeal's view on the current applicability of the tertiary ground. At paragraph 10, he said:

The tertiary ground continues to apply to all persons seeking judicial interim release, whether charged with relatively minor, non violent offences or whether charged with murder ... as the nature of the offence and the surrounding circumstances become more serious, the consideration of the tertiary ground will become more relevant.

30It is noteworthy that by way of an introduction to the four factors to be considered, section 515(10)(c) of the Criminal Code states that the detention of an accused in custody on the Tertiary Ground is justified -

….. if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the four factors enumerated.

31My understanding of this legislation is that detention is only justified if it is necessary, and only after consideration of all the circumstances, which must include, but are not limited to the four factors enumerated. In E.M.W. (supra) at paragraph 31 the Court expressed it this way:

No one factor is determinative. The four factors should be analyzed together, not separately. Consideration of their combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain public confidence in the administration of justice.

32It is trite to state that every case must be decided on its own merits and particular circumstances, including, in my view, the particular circumstances of the accused at the time of the commission of the offence. In this regard I could do no better than quote from Justice G. Trotter's Third Edition of "The Law of Bail in Canada" at page 3-56, where the learned Judge and author said the following:

In applying s. 515(10)(c) of the Criminal Code, it is helpful to stand back and consider its essence. The criteria enumerated in s. 515(10)(c) should not be approached as if they are free-standing thresholds, capable of justifying detention. Instead, they are designed to be a non-exhaustive collection of factors to be used in determining whether detention is "necessary to maintain confidence in the administration of justice." At the end of the day, this is the issue that must be resolved in s. 515(10)(c). This approach to s. 515(10)(c) will result in cases of both release and detention in firearms cases, just as it will in murder cases…It will all depend on the circumstances of the case.

F. THE RIGHTS OF THE ACCUSED

F. The Rights of the Accused

33I am cognizant of the accused's 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.

34Furthermore, the abundant jurisprudence with respect to these rights makes it clear that:

Imprisonment prior to trial should be the last resort.

See R. v. Hajdu (1985), 1984 CanLII 3517 (ON SC), 14 C.C.C. (3d) 563 (Ont. H.C.)

Pre-trial detention is extra-ordinary in our system of criminal justice.

See R. v. Bray (1983), 1983 CanLII 1981 (ON CA), 2 C.C.C. (3d) 325 (Ont. C.A.)

There are no categories of offences for which bail is not a possibility.

See R. v. Blind (1999), 1999 CanLII 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.);

R. v. Framboise, 2005 CanLII 63758 (ON CA), [2005] O.J. No. 5785 (Ont. C.A.)

G. FINDINGS

G. Findings

35I find each of the three proposed sureties to be strong, committed and capable. Each testified well, with confidence and truthfulness. The amounts pledged are sufficient, and I have confidence in their respective levels of involvement with the supervision of the accused as envisaged by the plan.

36In R. v. Cornel, [2011] O.J. No. 6262, a very recent decision of the Ontario Superior Court, P.B. Annis J. made the following comment at paragraph 32:

For a surety to be sufficiently reliable one must be willing to make the very significant commitment to alter one's personal life on behalf of another person. In order to accept the surety, the Court needs the reassurance that there is some logical reason or connection for his taking on what is clearly a very real burden for a considerable period of time.

37In my view, the accused's mother, Sharon Gray fits this paradigm perfectly. I was particularly impressed by Ms. Gray, who is prepared to take a year off work, go and live with her son and his family in their home, and actively participate in his counseling program and daily supervision. Being a Registered Nurse, employed as such at the Centre for Addiction and Mental Health in Toronto for 15 years, she has a wealth of experience in dealing with mental health and addiction, which bodes well for her competence as a surety in this case. Moreover, she testified that she would not even sign the bail papers unless she is completely satisfied that her son realizes that he desperately needs counseling, and is willing to commence participation in this process forthwith. Here is a woman who is willing to alter her personal life on her son's behalf.

38I am persuaded, on a balance of probabilities, that the four factors set out in section 515(10)(c) of the Criminal Code are at an extremely high level in the case at bar. However, in considering the necessity or otherwise of pre-trial detention, I find that the root cause of the accused's alleged sudden outburst of violent criminal behaviour, is rooted in his severe addiction to gambling, which is one of "all the circumstances" which the court is mandated to consider.

39The ultimate question for me to resolve is whether the plan of release, with some adjustments which I would make, is sufficient to allay the perception of the integrity of the administration of justice in the eyes of the objective, educated member of society, one who understands the bail legislation, the Charter values, and is familiar with the particulars of the case at bar.

H. DISPOSITION

H. Disposition

40On the totality of all the evidence and all the circumstances which I have carefully considered under the relevant legislation and applicable jurisprudence, I am satisfied that the accused has met his onus on all three grounds, and there will be an order for his release on a Recognizance with sureties and conditions as detailed in the attached Judicial Interim Release Order.

41For clarification, the Release Order is made under section 515(2)(e) of the Criminal Code. This subsection is generally reserved for accused persons who are not ordinarily resident in the province in which they are being held or do not reside within 200 km of the place where they are being held in custody. However, according to Justice Trotter in the Third Edition of "The Law of Bail in Canada" at page 6-16, such persons may also be released under any of the other subsections of 515(1) or (2).

42Conversely, I am of the view that the reverse may also apply. While I am not bound by the decision of the Alberta Court of Queen's Bench in R. v. Folkes, [2007] A.J. No. 1142, I am persuaded that, as in that case, in appropriate circumstances, and particularly as in the case at bar where Defence Counsel is not opposed to such a release, the Court may release a person who is ordinarily resident in Ontario and does reside within 200 km of his place of detention under section 515(2)(e). My view is bolstered by section 12 of the Interpretation Act of Canada which provides as follows:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

43In other words, I have adopted a liberal rather than a restrictive approach to the interpretation of section 515(2)(e) of the Criminal Code. By imposing a cash component to the release order, I believe that the pledge and the risk adopted by the sureties will support the understanding of the public in relation to the maintenance of public confidence in the administration of justice.

44The Conditions of Release will include a requirement that the accused enter a residential facility for in-house treatment and counselling to effectively address his addiction to gambling. It will be a condition precedent to his release that he provide the Crown and the Police with a copy of the plan of treatment and counselling together with the name and address of the facility and the length of time he will remain there. In support of this condition I rely on the decision of the Ontario Superior Court in R. v. Pitawanakwat, [2003] O.J. 5029 where the court held as follows:

It was in the interests of all concerned, including the accused, the complainant, the possible victims, the community at large and the Justice System itself, that appropriate treatment and counselling be given under appropriate terms and conditions that would meet the concerns raised in section 515(10)(a)(b) and (c) of the Code.

45The Court went on to say –

It is in the interests of all concerned that, to the extent possible, the root causes, and not merely the symptoms of an offender's actions be dealt with at all stages in the criminal justice system…. and in a case where treatment is requested and available, where appropriate sureties step forward, and where the accused presents a plan, with conditions that can address the issues raised in the above paragraphs of the Code[s. 515(10)], arguments that suggest that there is no other option but pre-trial incarceration must be carefully scrutinized.

46In a highly acclaimed and frequently referred to decision, R. v. B. (A.) (2006), 2006 CanLII 2765 (ON SC), 204 C.C.C. (3d) 490, Superior Court Judge T. Ducharme reversed the Tertiary Ground Detention Order of the Court below on review, and ordered the accused to be released. Ducharme J. "set out the minimal factors that a reasonable, well-informed member of the community would understand when assessing the propriety of granting bail to an accused person." (Trotter: "The law of Bail in Canada" 3rd Edition at page 3-49). Included in such factors are:

The granting of bail must be assessed on a case-by-case basis……The reasonable person would understand that there are no offences for which bail is automatically prohibited and that persons charged with offences as serious as sexual assault and murder are often granted bail. Equally important, she or he would understand that the vast majority of those who are charged with criminal offences are granted bail and do not abscond or commit further offences while on release.

Pre-trial detention can last for many months before trial, a fact that can have a significantly adverse affect on the life of the accused person and her or his family – resulting, for example, in loss of employment or interruption of education.

47I thank both Crown Attorney Caruthers and Defence Counsel O'Connor for their valuable assistance, and for the excellent manner in which they presented their respective cases to the Court.

P. Kowarsky J.P. Ontario Court of Justice