Court File and Parties

COURT FILE NO.: CR-18-40000133-0000 DATE: 20180808 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – C.W. Applicant

Counsel: Patrick Clement, for the Crown Leah Gensey, for the Applicant

HEARD: July 31, 2018

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding subject to s. 517. (1) of the Criminal Code directing that the evidence taken, the information given or the presentations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as the trial is ended; (b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Reasons for Judgement

[1] On Monday, February 26, 2018 T.C. was kicked to death at the corner of Nina Street and Bathurst Street in Toronto. It was approximately 11:30 pm. The Crown alleges that Mr. C.W. killed Mr. T.C.. Mr. C.W. is charged with second degree murder. His preliminary hearing is set for September. He applies for bail.

[2] Crown counsel, Mr. Clement, very fairly concedes that Mr. C.W. is capable of meeting his onus on the primary ground. He also fairly concedes that with the right sureties, Mr. C.W. could meet his onus on the secondary and, possibly, the tertiary ground. His main concern is with the tertiary ground.

[3] In my respectful view, the proposed sureties and the plan of release are adequate to meet concerns on all three grounds. In coming to this conclusion, I take into account the following things: Mr. C.W.’s relatively minor and dated record; his aboriginal status; and the plan of release. For the reasons that follow he will be released on the terms as I set out.

The Crown’s Allegations

[4] Mr. C.W. was living at the Sagatay Native Men’s residence at the time of the murder. He had a pass over the weekend of February 24-25. The pass was granted on February 22. He was supposed to be back on the Sunday night. Mr. C.W. spent the weekend with Mr. T.C.. They were friends. They did drugs together. When Mr. T.C. died he had fentanyl and cocaine in his system. Mr. C.W. gave a statement to the police after his arrest. Mr. C.W. denied having anything to do with Mr. T.C.’s murder. According to Mr. C.W., however, he and Mr. T.C. took the subway and the streetcar to a bar on Monday night, February 26. The bar was called Wiseguys. Wiseguys is located on St. Clair Avenue West. After visiting the bar, Mr. C.W. claims he tried to take money out of his bank account. His account was cleaned out. He believed that Mr. T.C. had his bank card over the weekend and withdrew all of his money. They visited the Sagetay Men’s Residence, which was not far from Wiseguys.

[5] According to the manager at Sagetay, Mr. C.W. called his bank and discovered that his account was empty. He said words to the effect of “I’ve been robbed”. He yelled at Mr. T.C.. They then left the residence.

[6] Surveillance cameras along St. Clair Avenue West, near the Sagetay Residence, and along Bathurst Street captured much of what happened. Mr. T.C. and Mr. C.W. were seen walking along St. Clair Avenue West and into Sagetay. Later (presumably after the phone call) Mr. C.W., who may have been intoxicated, was captured on video running after Mr. T.C. south along Bathurst Street. Although the actual assault was not captured on video, three witnesses observed Mr. C.W. kicking or stomping on Mr. T.C.. Mr. T.C. is an older and frailer man than Mr. C.W..

[7] Dr. Chutka is a forensic pathologist. He conducted a post-mortem examination of Mr. T.C.. Dr. Chutka’s opinion was that the mechanism of death was an acute traumatic basil sub-arachnoid haemorrhage caused by laceration of the right vertebral artery following blunt impact head trauma. Dr. Chutka indicated in his post-mortem report that the injury was unlikely to have been caused by a mere fall.

[8] The Crown alleges, in other words, Mr. C.W. beat Mr. T.C. to death by kicking him in the neck and head.

[9] On February 28, 2016 Mr. C.W. surrendered to the police. He was arrested for the second-degree murder of Mr. T.C.. He spoke to Detective Singh of the Toronto Police.

[10] There is no doubt that Mr. C.W.’s attitude in the interview was poor. He made several racist comments to Detective Singh. He claimed he had “beaten up many Pakis”. He claimed that he would obtain bail due to the application of R. v. Gladue. He told Detective Singh that he had been in 27 or 28 foster homes – which seems plausible. He told Detective Singh that he had been doing drugs all weekend with Mr. T.C. and that Mr. T.C. had stolen from him using his bank card. He also said that he had no idea how Mr. T.C. died. He denied assaulting Mr. T.C..

[11] Mr. C.W. has a minor criminal record. In 2010 he was convicted of possession of stolen property and fail to appear. The offences occurred in 2008.

Analysis

[12] The proposed plan of release is set out in terms filed by Mr. C.W.’s counsel, Ms. Gensey. What she essentially proposes is a house arrest. Mr. C.W. would live at the home of his aunt and uncle. They both work during the day, but they would install cameras to ensure that Mr. C.W. did not violate the terms of his bail. The cameras come with an app. The app would permit the sureties to check the cameras from time to time on mobile devices such as cell phones or tablets.

[13] The key issues in this case are these:

(a) Has Mr. C.W. met his onus on the primary and secondary grounds? (b) Has Mr. C.W. met his onus on the tertiary ground?

[14] I turn to the issues.

(a) Has Mr. C.W. met his onus on the primary and secondary grounds?

[15] The proposed sureties are J.P. and S.U.. Mr. J.P is Mr. C.W.’s uncle. Ms. S.U. is married to Mr. J.P. Crown counsel agreed that Mr. C.W. could meet his onus on the secondary grounds with appropriate sureties. He argued that these sureties, while good and honest people, are not appropriate. The two sureties are “woefully blind” about the strength of the Crown’s case. They do not believe that Mr. C.W. is guilty of anything. They do not have the insight they need to properly supervise Mr. C.W..

[16] I must respectfully disagree.

[17] Subsection 515(10) of the Criminal Code states, in part:

515 (10) 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…

[18] These sections are commonly referred to as the primary and secondary grounds, respectively.

[19] I am not aware of any authority for the proposition that the sureties must have insight into the alleged offences or accept the truth of the Crown’s allegations. The purpose of a surety is to make sure that the accused fully complies with the bail conditions. The sureties play an important rule in making sure that the public has confidence in the administration of justice. Thus, a surety must be “honest and reliable”: R. v. Trudeau, 2015 ONSC 5134 at para. 36.

[20] The sureties live at A[…] Street in a 2 bedroom rental apartment. They have lived there for 18-19 years. They are of modest means but they are obviously hard working and decent people. They can sign for about $10,000.00, which is a considerable amount of money for them. The amount of money is not the issue.

[21] Mr. J.P is of First Nations heritage. He is from Manitoulin Island. He is closely connected to the First Nations community in Toronto. He regularly attends pow-wows and other community events.

[22] Mr. J.P is employed at G[…], an environmental company. He does building renovations and makes about $50,000.00 per year. He works from 8 am to 6 pm each day. He has worked there for about 2 ½ years. Prior to returning to Toronto some 18-19 years ago, Mr. J.P lived in Florida. He was self-employed as an alligator wrestler at an amusement park. He has a son who lives in the United States. He is Mr. C.W.’s mother’s brother. He was aware of Mr. C.W. growing up but did not get to know him until about 7 years ago. I will paraphrase here: here has tried to be a mentor and educator to Mr. C.W.. Mr. C.W. lived with him for a period of time, prior to going to the Sagatay Native Men’s Residence. He does have a criminal record: he has one conviction for impaired driving from 2015. He did not serve time in jail. Crown counsel, again very fairly, did not suggest that this record disqualifies him to be a surety. I agree.

[23] Ms. S.U. is also employed, earning about $45,000 per year. She has been married to Mr. J.P for about ten years.

[24] There is at least one important contradiction between the evidence of Mr. J.P and Ms. S.U.. Mr. J.P testified that Mr. C.W. moved into Sagatay Native Men’s Residence because he wanted his nephew to stand up on his own and get his own apartment; Ms. S.U. testified that she wanted Mr. C.W. to move out because of his substance abuse problems.

[25] This contradiction is troubling. I rather suspect that Ms. S.U. is correct. I do not think Mr. J.P in any way lied to the court. I do, however, think that Mr. J.P may not have wanted to see all of Mr. C.W.’s troubles. Both he and Ms. S.U. seem to want to see Mr. C.W. in a good light, even though there is certainly reason to think that they are seeing him through rose-coloured glasses.

[26] That said, I am satisfied that these two well-meaning people can properly supervise Mr. C.W., keep him from breaching the conditions of his bail, and ensure his attendance in court. The law calls for sureties who can do the job and will call the police if necessary. I am satisfied that these two sureties can and will.

[27] Moreover, it is apparent to me that Mr. J.P and Ms. S.U. are the best sureties available. Mr. J.P impressed me as a strong figure. He is connected to his community. He runs a part-time catering business. He caters First Nations events. He believes Mr. C.W. will respect him. He does not keep alcohol in the house. The cameras will monitor him. In his statement to Detective Singh, Mr. C.W., who was enormously disrespectful, seemed to have some respect for his native heritage and connection to it. Ms. S.U. does not appear to be as strong a figure as her husband. She is quieter, and more soft-spoken. That said, I believed her when she said that she would have no hesitation in calling the police if Mr. C.W. breached the terms of his bail. I base that on the fact that she was prepared to have Mr. C.W. move out to deal with his substance abuse problems.

[28] To some degree, the surety must match the accused person. Mr. C.W. has been continuously employed as a forklift operator for several years. He has a relatively minor record that is eight years old and relates to offences that occurred ten years ago. Although he does have a conviction for fail to appear, he does not have a string of convictions for serious offences or a history (other than the one conviction) of defying court orders. Although it seems clear that Mr. C.W. has a substance abuse problem, he does not have the kind of record of convictions (including failures to comply with bail conditions) that addicts tend to accumulate. Even acknowledging that the proposed sureties are not perfect, I find that on a balance of probabilities that Mr. C.W. has met his onus on the secondary ground.

(b) Has Mr. C.W. met his onus on the tertiary grounds?

[29] Crown counsel argues, straightforwardly, that the framework set out in R. v. St. Cloud, 2015 SCC 27 applies. Wagner J. (as he then was) for the Court noted that a judge or justice must take into account all relevant circumstances, including the four factors set out in s. 515(10)(c): St. Cloud at paras. 66-71. Ultimately, the purpose of s. 515(10)(c) is to maintain public confidence in the administration of justice. In this case, Crown counsel argues, releasing Mr. C.W. would undermine, rather than maintain public confidence in the administration of justice.

[30] I obviously agree with the framework of analysis as stated by Crown counsel, but, again and with great respect, I must disagree with the application.

[31] Subsection 515(10) of the Criminal Code states, in part:

515 (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(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.

Wagner J. described a reasonable member of the public in this way, at paras. 79-80:

Thus, a reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter. Such a person is undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that "justice delayed is justice denied": R. v. Trout, 2006 MBCA 96, 205 Man. R. (2d) 277, at para. 15. Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose of certain defences is to show the absence of such intent. A well-known example of this type of defence is the mental disorder defence. The person contemplated by s. 515(10)(c) Cr. C. therefore understands that such a defence, once established, will enable an accused to avoid criminal responsibility. However, it would be going too far to expect the person in question to master all the subtleties of complex defences, especially where there is overwhelming evidence of the crime, the circumstances of the crime are heinous and the accused admits committing it.

In short, the person in question in s. 515(10)(c) Cr. C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society's fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons.

[32] In applying the factors, I find that the prosecution’s case is strong. Ms. Gensey properly conceded that point. There seems to be no doubt that Mr. C.W. assaulted Mr. T.C.. Although it is perhaps too early to speculate on the course of a preliminary inquiry or trial, the real question at trial will likely be the degree of Mr. C.W.’s culpability, rather than his identification as the perpetrator of the crime.

[33] Regarding the gravity of the offence, there is no doubt that murder is certainly the gravest of all crimes. Murder engages the reverse onus provisions of the Criminal Code. That said, pre-trial release is “not beyond the reach” of those charged with murder: R. v. Laframboise (2005), 203 C.C.C. (3d) 492 (Ont.C.A.) at para. 31.

[34] The circumstances surrounding the commission of the crime are obviously highly troubling. Mr. T.C. appears to have been killed in a vicious attack by a man younger and more fit than he in a dispute over money. It was not, however, a crime of random violence, or one involving gangs or a pattern of violent behaviour: R. v Trudeau, supra, at para. 66; R. v. Bigby, 2014 ONSC 4510; R. v. Modeste, [2009] O.J. No. 5155 (Sup.Ct.).

[35] I note, obviously, that this offence involves the potential for a life sentence with no possibility of parole for at least ten years, and possibly as many as 25 years. That, however, is not in and of itself a bar to release. It is a factor that must be weighed along with the other factors.

[36] I turn now to the statement given to Detective Singh by Mr. C.W..

[37] In the statement Mr. C.W. was arrogant, racist, disrespectful, and dismissive. He was rude to Detective Singh. Detective Singh, in contrast, treated Mr. C.W. with courtesy and professionalism. Mr. C.W. displayed an attitude similar to that of a petulant and immature teenager. As Ms. Gensey accurately concedes, it was not Mr. C.W.’s finest moment.

[38] Crown counsel argues that Mr. C.W.’s statement shows that he does not have the proper attitude to be released. He felt entitled to bail based on his First Nations heritage. His rudeness and racism are disqualifying because they can give no confidence that Mr. C.W. will respect a court order.

[39] Crown counsel has an excellent point. Mr. C.W.’s racist comments to Detective Singh are disgusting and abhorrent. His bragging that he used to “beat up Pakis” is disturbing. This Court condemns those comments unreservedly. The comments are especially troubling because Mr. C.W. then goes on to brag that he can rely on his own community’s legacy of oppression to obtain bail.

[40] The problem, however, is that the Court cannot lock people up for having racist attitudes, as satisfying as that might feel. It is obviously not practical or legal. Criminally racist acts are a different matter, of course. But thought crimes are generally not punishable in our country, however heinous.

[41] More troubling is the arrogance and sense of entitlement in Mr. C.W.’s statement. I agree with Crown counsel that they do not inspire confidence that Mr. C.W. will respect a court order.

[42] I must, however, look at all the circumstances including Mr. C.W.’s status as a First Nations person. In other words, the Gladue factors play a role: R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Robinson, 2009 ONCA 205. I must balance these factors with the factors set out in s. 515(10)(c), as well as with the obvious problems generated by Mr. C.W.’s poor attitude, in order to determine whether detention is necessary to maintain public confidence in the administration of justice.

[43] I therefore turn next to the Gladue factors.

[44] Crown counsel agrees that the factors set out in R. v. Gladue play a role at a bail hearing. He argues, however, that in this case there is an insufficient connection between those factors and the offence here to ground a proper application. He also points out that the more serious the offence the less rehabilitation plays a role. I do not disagree with Crown counsel, but I do take a slightly different view of the evidence in this case.

[45] In examining the factors that a court should examine at a bail hearing, I have found the case of R. v. Silversmith, [2008] O.J. No. 4646 (Sup.Ct.), and its reliance on R. v. Brant, an unreported decision of Parfitt J dated June 3, 2008 (Sup.Ct.) to be of great assistance. In Brant, Parfitt J. articulated a three-part test (refined by Turnbull J. in Silversmith):

(a) What are the unique systemic or background factors that may have played a part in bringing the particular First Nations accused before the courts? (b) Can the sureties offered, in the context of the First Nations culture, control the behaviour of the accused? (c) Do First Nations law and customs provide the assurances of attendance in Court and protection of the public that are required for release?

[46] I find that there are unique systemic or background factors that have played a role. Mr. C.W. told Detective Singh that he was in 27 or 28 different foster homes. He never knew his father. His uncle, Mr. J.P, testified about troubles that his sister, Mr. C.W.’s mother, has had. Mr. C.W. has managed to maintain a steady job, but it is also clear that he has battled substance abuse for many years. I find that his First Nations status has played a role in bringing him before the Courts. It is impossible to say, without more evidence (such as a Gladue report), exactly what that role was. It is also impossible to say how important. But it is clear that there is at least some relationship.

[47] I also find that Mr. J.P is capable of controlling Mr. C.W.. It was very clear to me from Mr. J.P’s testimony that his First Nations connection is very important to him, and that he has tried to teach Mr. C.W. as much as he could about his heritage and customs. I found Mr. J.P to be a quiet but impressive person, in the sense that he appears to be capable of exercising authority over Mr. C.W.. I also find that he will continue to try to connect Mr. C.W. to his own First Nations heritage and culture. I believe that, in spite of his poor attitude as displayed to Detective Singh, this is also important to Mr. C.W..

[48] Finally, I find that First Nations law and customs provide the assurances that Mr. C.W. will attend Court and that the public can be protected. The letters filed by Ms. Gensey on Mr. C.W.’s behalf indicate that he is a person who respects his First Nations culture and customs. I acknowledge that these letters are somewhat undermined by Mr. C.W.’s own poor attitude, but I am satisfied, on balance, that First Nations law and customs provide a sufficient incentive to Mr. C.W..

[49] In my view, applying the St. Cloud test, Mr. C.W.’s detention is not necessary to maintain public confidence in the administration of justice. The reasonable, thoughtful member of the community described by Justice Wagner would undoubtedly be familiar with the legacy of racism and oppression described in Gladue and acknowledged in other cases and studies. The reasonable, thoughtful person would likely have some understanding that First Nations accused are not in quite the same position as other accused: United States of America v. Leonard, 2012 ONCA 622.

[50] This case is not unlike R. v. Spence, 2015 ONSC 1692 the accused was charged with second degree murder. She began drinking at age 14. Her parents were severe alcoholics who had attended residential schools. She was in foster care. She was sexually assaulted. She had a child at age 17, and other children. The child protection authorities apprehended all of her children. She lived for many years as a street person. She accumulated a long list of public intoxication offences, but only a minor criminal record. As Justice Shaw noted, all of the classic Gladue factors were present. The accused was, however, released on a house arrest bail.

[51] In my view, therefore, Mr. C.W. has met his onus on the tertiary ground.

Disposition

[52] Mr. C.W. will be released on the following terms, in addition to the statutory terms:

• J.P. and S.U. are named as sureties;
• An amount of $10,000 will be pledged;
• Mr. C.W. will reside with his sureties at A[…] Street, Toronto and will abide by the rules and the discipline of the household;
• The sureties will install cameras within 15 days of Mr. C.W.’s release. The cameras will be installed at the front and back doors of the apartment and will be capable of being monitored by mobile devices such as smart phones or tablets;
• The sureties will inform Detective Andy Singh (Badge 8091) of the Toronto Police Service (or his designate) within 24 hours of the installation of the cameras. The sureties will permit Detective Singh or his designate a single 15-minute inspection at a mutually agreeable time to ensure that the cameras are in good working order.
• The sureties will monitor the cameras from time to time using mobile devices such as smart phones or tablets when they are not in the residence with Mr. C.W.;
• Mr. C.W. will remain in A[…] Street at all times except while travelling directly to or directly from court attendances, medical emergencies involving himself, counsel’s office, or substance abuse treatment as arranged his surety;
• Mr. C.W. will take substance abuse treatment as arranged by his surety and will sign all necessary releases and forms so that his surety can monitor his progress;
• Mr. C.W. will remain in the province of Ontario and will surrender all of his travel documents including but not limited to his passport to Detective Andy Singh (Badge 8091) of the Toronto Police Service (or his designate) within 24 hours of release;
• Mr. C.W. is not to possess or apply for any new travel documents;
• Mr. C.W. will carry a copy of his recognizance every time he leaves his residence and will present it to any police officer upon request;
• While in his residence Mr. C.W. will present himself at the front door of A[…] Street within five minutes upon request by any Toronto Police Service officer and will provide a copy of his recognizance and his identification;
• Mr. C.W. will not possess any firearm, crossbow, prohibited weapon, restricted weapon, ammunition, or other weapon as defined by the Criminal Code and will not apply for any authorization, licence, or registration certificate.

R.F. GOLDSTEIN J. Released: August 8, 2018