Court File and Parties

COURT FILE NO.: CR-20-00000193-00BR DATE: 2020-06-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – S.A. Applicant

COUNSEL: P. Zambonini and M. Townsend, for the Respondent A. Herscovitch, for the Applicant

HEARD: June 1, 4, 2020.

Reasons for Decision

SCHRECK J.:

[1] S.A. is charged with second degree murder and has applied for judicial interim release. It is alleged that he and his co-accused, S.B., shot a young man they had no prior connection with while in his car. After the murder, but before he became a suspect, S.A. was charged with a number of firearm possession offences together with several other people, including S.B., and was released on a recognizance with his father as a surety. A month later, S.A. breached the recognizance by communicating with S.B., contrary to the terms of his bail. He pled guilty, was sentenced to 15 days imprisonment and re-released on bail. He has no criminal record other than this conviction.

[2] S.A. proposes that he be released on strict conditions enforced by electronic monitoring with his mother and two other relatives as sureties. The Crown opposes his release on the secondary and tertiary grounds. Because of the ongoing COVID-19 pandemic, this application was heard by way of teleconference. Both parties filed materials electronically and I heard evidence from the sureties and S.A. as well as submissions from counsel.

[3] The following reasons explain why the application is dismissed.

I. Facts

A. The Murder Allegations

(i) Video Surveillance and Fingerprints

[4] On December 29, 2018, the victim was shot three times while driving his car. There is no evidence as to when, how or why the individuals who shot him got into his car, but surveillance video shows the car mounting the curb and stopping next to a tree. Two men are seen on the video exiting the car at 6:03 p.m. They later returned to the car a minute later, appeared to search for something, and then left again at 6:05 p.m. Video showed one of the men discarding a jacket as they returned to the car. It was later recovered and found to have gunshot residue (“GSR”) on it as well as S.B.’s DNA.

[5] The victim’s body was found in the car some time thereafter. Also found in the car was a mobile phone which did not belong to the victim. It is the Crown’s theory that it was the mobile phone that the two men returned to the car to search for.

[6] Video taken at 6:06 p.m. shows two men who appear to be dressed similarly to the men who left the car walking south from the car’s location. Other video taken between then and 6:42 p.m. shows the two individuals walking through the area and arriving at an apartment building where both the applicant and S.B. lived. The video is not continuous and there are gaps of several minutes between the various sightings of the two men. Their faces are not visible in any of the video footage from outside the building.

[7] At 6:42 p.m., video from inside the apartment building shows two men in the same clothing entering the building. Their faces are visible and the Crown submits that both the applicant and S.B. are clearly recognizable. Between 6:42 p.m. and 9:00 p.m., the two men are seen exiting and entering the building several times and are joined by a few other individuals, including Z.A., a person who was at the time the subject of an unrelated homicide investigation.

[8] Between 9:13 p.m. and 9:32 p.m., the applicant, S.B. and another man are seen in the parking garage of the apartment building. They are seen going to a corner of the garage where a firearm was later found. The gun was wrapped in several plastic bags and the applicant’s fingerprint was on one of the bags, as were the prints of several other unknown individuals. The gun was later found to forensically match shell casings found in the victim’s car.

[9] The applicant, S.B. and Z.A. were later seen leaving the area, purchasing something from a liquor store and travelling to a hotel, where they rented a room.

(ii) Z.A.’s Statement to the Undercover Officer

[10] As noted earlier, Z.A., who was seen in the company of the two men at the apartment building, was the subject of an unrelated homicide investigation. Part of this investigation included undercover police officers posing as criminals attempting to befriend Z.A., a technique sometimes referred to as a “Mr. Big” operation. In February 2019, Z.A. told the undercover officers that his friends “Turner” (whom the Crown alleges is the applicant) and “SJ” (whom the Crown alleges is S.B.) killed the deceased by shooting him in the head. The deceased was not shot in the head. Z.A. did not tell the undercover officer the source of his information.

[11] Z.A. was later arrested and charged with an unrelated murder. That charge remains outstanding.

B. Firearm Possession Charges

[12] On December 28, 2018, police officers in Durham Region searched a house after receiving information that a robbery had been committed there. They found a 9 mm handgun. Several people who were inside the house, including the applicant and S.B., were arrested. The applicant told the police that he had brought a .32 calibre gun to the house. It is the Crown’s theory that he was referring to the 9 mm.

[13] Mobile phones seized at the residence were later found to contain footage of several individuals in the residence holding the gun, including individuals the Crown alleges are the applicant and S.B. There is no suggestion that this gun was used in the homicide.

C. Conviction for Failing to Comply With a Recognizance

[14] On January 10, 2019, following a contested bail hearing on the gun charges, the applicant was released on a recognizance in the amount of $1,000 with his father as his surety. The terms of the recognizance required the applicant to abstain from communicating with any of the co-accused, including S.B.

[15] On February 4, 2019, as part of an unrelated investigation, police officers viewing security video from the applicant’s apartment building saw him and S.B. communicating in the lobby. The applicant was accordingly charged with failing to comply with a recognizance. On February 20, 2019, he pleaded guilty and was sentenced to 15 days imprisonment, which amounted to time served after he was given credit for presentence custody.

D. The Assault Allegation

[16] The applicant was arrested for second degree murder on February 20, 2019 and since that time has been in custody at the Toronto South Detention Centre (“TSDC”).

[17] The applicant was charged with assault in May 2019 based on an allegation that he and three other inmates attacked another inmate, punching him repeatedly. The altercation was apparently captured on security video. The charge remains outstanding.

E. The Applicant’s Background

[18] The applicant is 20 years old and until his arrest was residing with his parents and siblings. He completed high school and had been taking college courses. Other than the conviction for failing to comply with a recognizance outlined earlier, he has no criminal record.

[19] The applicant was diagnosed with asthma as a child. He continues to suffer from this condition, for which he is prescribed medication.

F. The Proposed Plan of Release

[20] The applicant proposes that he be released on a recognizance with his mother, uncle and his mother’s cousin as sureties. The latter two sureties would not reside with him but would check in with him on a regular basis. He would be subject to house arrest enforced by electronic monitoring and would not be permitted to have any visitors or to use a telephone unless in the company of a surety.

II. Analysis

A. Overview

[21] Because the applicant has been charged with second degree murder, an offence enumerated in s. 469 of the Criminal Code, his initial bail hearing must take place in this court by virtue of s. 522(1). It is clear from s. 522(1) that the onus is on the applicant to show cause why his detention is not justified on any of the three grounds set out in s. 515(10). The respondent opposes his release on the secondary and tertiary grounds in ss. 515(10)(b) and (c). The onus is therefore on the applicant to show cause why he should not be detained on either or both of those grounds.

B. The Secondary Ground

(i) The Nature of the Inquiry

[22] Section 515(10)(b) of the Code states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “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.” In this context, a “substantial likelihood” means “a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226, at para. 87.

[23] The secondary ground requires the court to conduct a risk assessment. Put another way, it requires the court to predict what is likely to happen in the future. As was observed by my colleague, Stribopoulos J. in R. v. Williams, 2020 ONSC 2237, at para. 111, “[b]y its very nature, there is always a fair degree of uncertainty inherent in such an evaluation. … The best the court can do is make a reasoned assessment based on all of the available information.” In most cases, the available information consists mostly of the allegations giving rise to the charges, any outstanding charges as well as the accused’s criminal record. Facts about the accused’s lifestyle may also be relevant.

(ii) The Allegations

(a) Overview

[24] Considering the allegations in the context of a secondary ground risk assessment is an exercise that must be conducted with caution. It must always be borne in mind that the applicant is constitutionally entitled to be presumed innocent of the charge. It must also be borne in mind that bail hearings are usually conducted at an early stage in the proceedings and in circumstances where the applicant is likely not in a position to challenge the Crown’s case and advance a defence. Nonetheless, the allegations are an important consideration for the reasons outlined by Trotter J. (as he then was) in R. v. R.H., 2006 ONCJ 116, 38 C.R. (6th) 291, at para. 29:

While still unproven, it is an important fact that should be considered in the determination of whether the public is at risk. Indeed, it would be artificial to gauge the potential risk to the public without looking at the features of the index offence. The fact that, at present, it is a mere allegation is offset by the strength of the Crown’s case. It is well recognized that one must be careful in gauging the strength of the Crown’s case at a bail hearing. Given the reduced level of formality in terms of procedure and the rules of evidence, the Crown's case can appear artificially cogent at a bail hearing: see R. v. Perron (1989), 51 C.C.C. (3d) 518 (Que. C.A.), R. v. Baltovich (1992), 68 C.C.C. (3d) 362 (Ont. C.A.) and R. v. A.B. (2006), 204 C.C.C. (3d) 490 (Ont. S.C.J.).

[25] Counsel both made extensive submissions about the strength of the Crown’s case. Counsel for the applicant pointed out that there is no continuity in the video footage that tracks the two men from the victim’s car to the applicant’s apartment building. He also points out that it is unlikely that Z.A. will be willing to testify for the Crown or that the Crown will be able to have his statement admitted under the principled exception to the hearsay rule. In any event, much of what Z.A. relayed to the undercover officer was demonstrably inaccurate. Finally, while the murder weapon was found in the garage in the area where the individual alleged to be the applicant was seen, that weapon was subsequently used in a different homicide. This means that it must have been placed in the garage at a later point. While the applicant’s fingerprint was on one of the bags containing the firearm, it could have been placed there at some other time and the prints of several other people were also on the bag.

(b) Z.A.’s Statement

[26] I tend to agree with the applicant with respect to the evidence of Z.A. He made the statement in question to an undercover officer in the context of a “Mr. Big” operation and there is no indication that he would be willing to assist the Crown in prosecuting the applicant. Furthermore, in my view the Crown will have a difficult time having the evidence admitted under the principled exception to the hearsay rule. There are no procedural indicia of procedural reliability. The statement was not made on video, under oath or after the witness was warned about the consequences of lying. Nor is this a situation where cross-examination of the witness is likely to provide any meaningful safeguard: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 28. The Crown is also unlikely to be able to demonstrate substantive reliability. Z.A. did not indicate the source of his information about who was responsible for shooting the victim. The Crown’s theory, as I understand it, is not that Z.A. was present when the victim was murdered, but that the applicant and S.B. confessed to him. To establish substantive reliability, the Crown would have to show that the material aspect of Z.A.’s statement, that is, that the applicant and S.B. confessed to him, is reliable. Evidence that corroborates the fact that the crime was committed would not, in my view, be sufficient as there are likely other explanations for how Z.A. obtained that knowledge: Bradshaw, at paras. 43-46; R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at para. 143.

[27] Counsel for the respondent submits that even if Z.A.’s evidence is unlikely to be relied on by the Crown at trial, it is nonetheless credible and trustworthy and therefore admissible at a bail hearing. I respectfully disagree. In my view, it is not credible and trustworthy for the same reasons that it is unlikely to be admissible hearsay. More importantly, in my view it would inappropriate to assess the strength of the Crown’s case at a bail hearing on the basis of evidence that is unlikely to be relied on at trial. Detaining an individual on the basis that he is likely guilty of allegations that are ultimately unlikely to be proven at trial is inconsistent with the presumption of innocence. As a result, I have not considered Z.A.’s evidence in my assessment of the strength of the Crown’s case.

(c) The Remaining Evidence

[28] Although I have not considered Z.A.’s evidence, I am nonetheless of the view that the Crown’s case against the applicant is formidable. It is true that there are gaps in the video surveillance. However, the men seen in the different videos were similar in appearance to the men in the video inside the apartment building, whose faces can be seen. The jacket discarded near the victim’s car had S.B.’s DNA as well as GSR on it, and there is an established connection between S.B. and the applicant. When considered cumulatively, this evidence supports the inference that the applicant and S.B. emerged from the victim’s car right after he was shot. I recognize that there may well be issues of party liability that arise at trial, but in my view the Crown’s case that the applicant had some involvement in the homicide is strong. The presence of the applicant’s fingerprint on the bag in which the gun was found, while far from conclusive, provides a further connection between him and the murder.

(iii) Other Outstanding Charges

[29] The two other outstanding charges are also cause for concern. If the applicant was in possession of a handgun as alleged, his willingness to handle deadly weapons and take video of himself doing so gives rise to significant secondary ground concerns. There is some dispute about whether the person holding the gun in the mobile phone video is recognizable as the applicant. Unfortunately, I have no clear photograph of the applicant to compare to the video and because this hearing was conducted by teleconference, I did not have an opportunity to view him in court. I can say that the features of the person holding the gun in the video are recognizable and could easily be compared with another photograph. Furthermore, the applicant was clearly in the residence where the gun was found and apparently acknowledged ownership of a firearm, although he referred to a .32 calibre weapon and the gun that was seized was a 9 mm.

[30] The assault charge from the TSDC is based on allegations that were recorded on security video. The applicant must have been aware that his conduct was likely to be captured on video. During his testimony on this application, the applicant acknowledged that he had been involved in fights at the TSDC, but maintained that this was because other inmates had provoked him.

(iv) The Fail to Comply Conviction

[31] As noted earlier, the applicant has one prior conviction for failing to comply with a recognizance. While there is only one prior conviction, the fact that it is for disobeying a bail condition and is fairly recent is cause for concern. Furthermore, I note that the breach involved the same person with whom the applicant is alleged to have committed the murder.

(v) The Proposed Plan of Release

(a) Overview

[32] Based on the foregoing, in my view there is a substantial likelihood that the applicant, if released, would commit further offences. He appears to be involved in a criminal lifestyle that involves the possession and use of firearms and, if the allegations are true, participated in the brutal murder of an innocent victim. However, as was noted in R. v. Tully, 2020 ONSC 2762, at para. 23, “the relevant question is not whether secondary ground concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors.”

(b) The Primary Surety

[33] In this case, the applicant’s mother is proposed as the primary surety. While the other two proposed sureties are willing to provide support, neither of them would reside with the applicant. The applicant’s mother testified on this application and was extensively cross-examined. It is clear that she cares deeply about her son and is highly motivated to assist him. Crown counsel made much of the fact that her evidence that she “in general” visited the applicant once a week while he was at the TSDC was apparently contradicted by the visitation logs obtained from the institution. Absent some evidence as to how reliable the logs are, I am not prepared to rely on them to make any findings in this regard.

[34] Crown counsel also suggested that the applicant’s mother’s testimony during cross-examination that she would report him to the police if he so much as ordered a pizza on the telephone without her knowledge was not credible, the suggestion being that no one would report someone for such a minor breach. I have some difficulty with this line of cross-examination. Had the witness said that she would have overlooked such a breach, the Crown no doubt would have suggested that she was an unreliable surety. In my view, questions in cross-examination to which there can be no satisfactory answer are a type of forensic trap and of limited assistance in evaluating a witness’s testimony.

[35] All of that said, some aspects of the proposed surety’s testimony were troubling. In particular, she seemed to downplay the seriousness of the applicant’s breach of his earlier recognizance, stating that it was “not a very strict bail” and that “the amount of money was a small amount.” Whether the bail was strict or involved a large amount of money is beside the point. While the witness ultimately acknowledged that the breach was serious, I find her initial unwillingness to do so troubling.

[36] While I ultimately accept that the applicant’s mother is well-intentioned, there is in my view little reason to think that the applicant will respect her any more than he respected his father, who was his surety when he breached his earlier bail.

(c) Electronic Monitoring

[37] Unlike with the earlier bail, the applicant now proposes electronic monitoring. I accept that electronic monitoring can be a very effective part of a release plan in certain circumstances, as was explained in Williams, at paras. 118-119:

For most accused, a GPS ankle monitor will serve as an effective deterrent to help ensure compliance with a home confinement condition: see R. v. Doucette, [2016] O.J. No. 852 (S.C.), at para. 5; R. v. T.L., 2020 ONSC 1885, at para. 22; R. v. Rajan, 2020 ONSC 2118, at para. 32. In a case on the margins, it can undoubtedly make the difference between detention and release.

However, deterrence invariably depends on rationality -- an inclination towards weighing costs and benefits.

[38] In this case, there is considerable doubt as to whether the applicant is the type of person who would weigh the costs and benefits of his actions. If the allegations are true, he participated in a murder on a city street in the early evening where any number of witnesses could have seen him. He brazenly returned to the victim’s car, apparently to search for a mobile phone, and then gave up and left it there for the police to find. He apparently brazenly handled a firearm and allowed himself to have a permanent video recording made of him doing so. He breached his bail by communicating with his co-accused in a public area where he easily could have been (and was) seen. He participated in an assault at the TSDC despite knowing that it was likely that he would be caught on video doing so. In my view, there is little reason to be confident that the knowledge that a breach would be discovered through electronic monitoring would deter the applicant.

(vi) COVID-19

[39] In the past few months, thousands of people in Ontario and around the world have been infected and have died of COVID-19. Both parties filed comprehensive evidence about the risk of contracting COVID-19 at the TSDC. The applicant filed an affidavit by Dr. Aaron Orkin, a physician and epidemiologist whose evidence has been considered in a number of applications. The respondent filed an information note prepared by staff at the Ontario Ministry of the Solicitor General and also adduced evidence from John Marchant, a deputy superintendent at the TSDC, who outlined the steps that have been taken to control the spread of the disease within the institution.

[40] I do not intend to embark on a detailed analysis of the evidence. I accept that Mr. Marchant and the staff at the TSDC have taken a number of steps to prevent an outbreak at the TSDC and that thus far, they have been largely successful. I also accept that despite their efforts, there is a substantial risk that an outbreak will occur and that the risk of contracting COVID-19 is greater within the institution than it is in the general population. I accept as well the evidence of Dr. Orkin that preventing outbreaks at congregate living facilities such as the TSDC is an important priority for the “flatten-the-curve” strategy and that reducing the number of individuals in such facilities is therefore an important goal, not only for the individuals who are released, but for society as a whole.

[41] The COVID-19 pandemic is, for the most part, relevant to the tertiary ground because the public’s confidence in the administration of justice must take into account the courts’ participation in public health initiatives that benefit everyone, including reducing the prison population to the extent possible to prevent the spread of the virus. For the most part, this principle has been accepted by courts in Ontario: R. v. Kazman, 2020 ONCA 251, at para. 18; R. v. H.K., 2020 ONSC 3275, at para. 97; R. v. G.D., 2020 ONSC 3164, at para. 46; R. v. J.R., 2020 ONSC 1938, at para. 47; R. v. D.M., 2020 ONSC 3152, at paras. 34-35; R. v. F.D., 2020 ONSC 3054, at paras. 18-19; R. v. S.A., 2020 ONSC 2946, at para. 101; R. v. Grant, 2020 ONSC 2957, at para. 30; R. v. S.B., 2020 ONSC 2997, at paras. 48-49; R. v. E.M., 2020 ONSC 3099, at paras. 64-65; R. v. S.H., 2020 ONSC 2879, at paras. 39-43; R. v. M.J.I., 2020 ONSC 2497, at para. 71; R. v. Ali, 2020 ONSC 2374, at paras. 97-98; R. v. Ibrahim, 2020 ONSC 2241, at para. 30; R. v. Rajan, 2020 ONSC 2118, at para. 70; R. v. T.L., 2020 ONSC 1885, at para. 36; R. v. J.S., 2020 ONSC 1710, at para. 19; Tully, at paras. 40-41; Williams, at paras. 123-124.

[42] I accept that the pandemic may also be relevant to the secondary ground in some cases if the fear of contracting the disease while in custody will provide some additional motivation for an accused to abide by the conditions of his bail: R. v. T.K., 2020 ONSC 1935, at para. 60; R. v. Cahill, 2020 ONSC 2171, at paras. 27-30. I do not see it as being relevant to the secondary ground in any other way. As I read s. 515(10)(b) of the Code, if there is a substantial likelihood that an individual will commit further offences if released, he or she must be detained regardless of any public health implications or, for that matter, any risk to his or her own health. Bail decisions do not involve a balancing exercise where the grounds in s. 515(10) are weighed against other considerations. Rather, “the release of accused persons is the cardinal rule and detention, the exception,” and only where “truly justified having regard to all the relevant circumstances of the case”: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 70; R. v. Myers, 2019 SCC 18, at para. 25.

[43] In this case, I accept that the applicant suffers from asthma and is concerned that he will contract COVID-19 if he remains incarcerated. However, I am not confident that this fear will have any significant deterrent effect on him for the same reasons that I am not satisfied that electronic monitoring will do so.

(vii) Conclusion on the Secondary Ground

[44] In all of the circumstances, the applicant has failed to satisfy me that the proposed plan would adequately address the substantial likelihood that he would commit further offences if released on bail. As a result, his detention is warranted on the secondary ground.

C. The Tertiary Ground

[45] Given my conclusion on the secondary ground, it is not necessary for me to consider the tertiary ground and I see little utility in doing so. The secondary and tertiary grounds are distinct and, in some cases, detention will be warranted on the tertiary ground even where it is not justified on the secondary ground: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 30; St-Cloud, at para. 34. However, the converse will rarely be true. In my view, when there is a substantial likelihood that an individual will commit further offences if released, that person’s detention will almost always also be justified on the tertiary ground because public confidence in the administration of justice requires that those who are likely to commit further offences be detained. I note as well that all four of the factors set out in subsection (i) to (iv) of s. 515(10)(c) favour detention in this case.

III. Disposition

[46] The application is dismissed.

Justice P.A. Schreck Released: June 10, 2020.