Court File and Parties

Court File No.: 14-1885 Ontario Court of Justice

R. v. M. Legere

Bail Hearing Heard: October 3, 2014 Bail Judgment: October 8, 2014

Before: A. Amenta, Justice of the Peace

Counsel:

• For the Crown: H. Gluzman
• For the Accused: M. Fairney

Reasons for Judgment

Introduction

[1] The history of Mr. Legere's bail hearing is unusual. He has been in custody for more than seven months. A three day preliminary hearing was recently conducted. I was advised that Mr. Legere would be ordered to stand trial on all charges but that the Order was not yet signed "out of an abundance of caution." The concern was that the Ontario Court of Justice would lose jurisdiction to conduct the bail hearing once Mr. Legere was ordered to stand trial in the Superior Court of Justice. This was an unnecessary precaution. The Ontario Court of Justice maintains jurisdiction over bail hearings except for s. 469 offences or for those matters in the Superior Court proceeding by way of preferred indictment. This is the case even after the accused is committed to stand trial in the Superior Court (R. v. Mayen, 2014 MBQB 29, Man. Q. B.).

[2] Mr. Legere is facing two counts of robbery under s. 344(b), two counts of robbery with an imitation firearm under s. 85(2) and one count of arson under s. 434. The Crown seeks his detention on the primary and secondary grounds. Because it is alleged that Mr. Legere used an imitation firearm, the reverse onus provisions of s. 515(6)(a)(vii) do not apply. Accordingly, the Crown has the onus of establishing, on the balance of probabilities, that Mr. Legere's detention is necessary.

[3] In addition to the allegations, I also heard a great deal of evidence regarding Mr. Legere's criminal record, the proposed surety and plan, his aboriginal ancestry and the application of the principles as set out in R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.). I will address these issues below.

The Allegations

[4] Mr. Legere and the first complainant Alfred Lallier had been childhood friends. They remained in touch after Mr. Lallier moved out of town. Mr. Lallier made arrangements to visit Toronto where, on February 19, 2014, he spent the day with Mr. Legere. That evening, Mr. Lallier was driving his vehicle with Mr. Legere as his passenger. Mr. Legere instructed Mr. Lallier to park at an apartment complex in Mississauga at which point Mr. Legere pulled out a hand gun, pointed it at Mr. Lallier and demanded that he hand over his earrings, watch and cell phone.

[5] Mr. Lallier fled from his vehicle at which point Mr. Legere got into the driver's seat and pursued Mr. Lallier. Mr. Lallier jumped into a nearby taxicab. The cab driver, Jasinder Attry, called 911 at which time Mr. Legere entered the rear of the taxicab. Mr. Legere pointed his gun at Mr. Attry and demanded his cell phone. Mr. Attry complied with the demand. Mr. Legere then struck Mr. Lallier, who was seated in the front passenger seat, in the head with the barrel of the gun. Mr. Lallier required stitches as a result of his injuries (Exhibit #2).

[6] Mr. Lallier fled from the taxicab and was chased down the street by Mr. Legere, once again driving Mr. Lallier's vehicle. Mr. Lallier spotted a municipal truck clearing snow. He jumped into the truck and he and the municipal employee drove away while being pursued for some distance by Mr. Legere in Mr. Lallier's vehicle.

[7] Later that evening, Toronto police were called to the scene of a vehicle fire. The Crown alleges that Mr. Legere set Mr. Lallier's vehicle on fire. The vehicle was completely destroyed. The rear licence plate, however, remained intact allowing police to identify the vehicle as belonging to Mr. Lallier.

[8] At the time of these alleged events, Mr. Legere was living at a halfway house operated by Corrections Services.

[9] Police executed a search warrant at Mr. Legere's room at the halfway house and located clothing similar to the clothing worn by Mr. Legere at the time of the alleged offences. Further, police seized a leather jacket which contained blood stains. CFS tests concluded that the blood matched Mr. Lallier's DNA.

Criminal Record

[10] Mr. Legere has a significant criminal record (Ex. # 1). Of particular concern are his convictions for the use of violence and weapons.

[11] On August 23, 2004, he was convicted of aggravated assault and robbery and sentenced to six months imprisonment and probation for twenty-four months. The offence took place on April 2, 2004 at Michael Power Secondary School in Toronto. When the first victim refused to give Mr. Legere a cigarette, Mr. Legere pulled out a knife and proceeded to search him. Four days later at Etobicoke Collegiate, Mr. Legere and two others demanded that the second victim hand over a marijuana cigarette. After he complied, Mr. Legere and the two others struck the victim seven times to the face. One of them pulled out a crow bar and struck the victim twice to the side of his face. Mr. Legere had his pit bull with him. The dog bit the victim five times. During the assault, Mr. Legere told the victim that he was a member of the crips gang. The second victim suffered significant injuries including dog bites, lacerations requiring stitches, black eyes and goose bumps.

[12] On August 16, 2005, Mr. Legere was convicted of aggravated assault and was sentenced to two years and ten months, probation for twelve months and was given a mandatory prohibition order. The offence took place on February 27, 2005. The victim and Mr. Legere were unknown to each other when a verbal argument broke out over the exchange of glances. Mr. Legere pulled out a knife. The victim fell to the ground at which time Mr. Legere kicked the victim to the head. While the victim was still on the ground, Mr. Legere slashed his face from his nostril to his ear. The victim suffered severe life endangering injuries including a fractured cheek, double vision and a disfiguring scar. He required surgery to repair his nasal cavity.

[13] In the summer of 2007, Mr. Legere was released on parole. In September, 2007, his parole officer noted that Mr. Legere was in violation of his curfew and that he could not be located. A warrant was issued for his arrest and remained outstanding until he was arrested on March 8, 2009.

[14] On January 17, 2008, Mr. Legere and two others robbed two victims operating an escort agency. During the robbery, one of the co-accused held a knife to the throat of one of the victims. A number of items and $900.00 cash were stolen. This took place while Mr. Legere was fugitive from justice. Mr. Legere was convicted on July 7, 2009 and sentenced to two years imprisonment.

[15] On March 8, 2009, Mr. Legere was arrested for the January 17, 2008 robbery and on the parole violation warrant. At his residence, police located two prohibited shotguns and ammunition in Mr. Legere's bedroom closet. They were not locked away nor were they trigger locked. One of them was loaded, the other had ammunition readily available. Both were sawed off at the barrel and stock. At the time, Mr. Legere was bound by a ten year prohibition order as a result of the August 16, 2005 conviction. On June 25, 2009, Mr. Legere was convicted of possession of prohibited or restricted firearm, unauthorized possession of a firearm and possession of firearms contrary to prohibition order. He received a total of four years imprisonment, concurrent with the July 7, 2009 sentence.

[16] Even though Mr. Legere is only thirty years old, as an adult he has amassed a disturbing and almost unbroken string of convictions for serious offences involving violence or weapons. Where gaps appear on his record, they can be explained in part by the fact that he was serving time in prison. Even while in jail, Mr. Legere has a lengthy disciplinary history (Ex # 4). While most of the infractions are minor, he was convicted on April 11, 2012 of having a sharpened metal object in his cell.

[17] Mr. Legere was released on parole for the 2009 convictions in September, 2012, approximately seventeen months before the alleged incidents giving rise to the outstanding charges now before the Court.

The Proposed Plan and Surety

[18] Mr. Legere's mother Lisa Lynn Legere was proposed as his surety. A surety affidavit was filed with the court (Ex. # 5). The proposed plan would see Mr. Legere reside with his mother. There would be a house arrest except for employment purposes. Mr. Legere's brother owns a roofing business where a job is available for him if he is released. Mr. Fairney has suggested that the employment exception to the house arrest could be omitted if that was a concern. Although Ms. Legere would have to discontinue her volunteer work, she indicated that she was prepared to do so to supervise her son.

[19] Ms. Legere does not work and receives disability benefits. She has been diagnosed with Post Traumatic Stress Disorder as a result of suffering years of sexual abuse in her childhood.

[20] Ms. Legere has $5,000.00 in the bank and is prepared to pledge the entire amount.

[21] Ms. Legere testified that her son lived with her until he was 16. Up until that point in time, Ms. Legere stated that he was well behaved, doing well in school and helped to look after his younger siblings.

[22] Mr. Legere is three credits short of a high school diploma. He is not married. He has had jobs in a mechanic's shop, as a roofer, in construction and working for a temp agency.

[23] Ms. Legere stated that she has a strong relationship with her son but that she would not hesitate to call the police if he violated the conditions of his release.

[24] Mr. Legere has obtained a referral from the Peel Aboriginal Network to Anishnawbe Health for counselling for alcohol abuse and employment issues (Ex. #6).

[25] Ms. Legere has acted as surety for another son Shane, during which time he was charged with breaching the curfew imposed as a condition of his bail.

[26] Ms. Legere was convicted of two counts of fraud under $5,000.00 in 1993. She was ordered to pay a fine of $350.00. Ms. Legere explained that she cashed social assistance cheques to which she was not entitled in order to purchase beds for her children. She was 23 years old at the time, had meagre income and had no financial assistance from her children's father. She has no other convictions. The convictions are dated. They do not disqualify her from acting as a surety.

[27] In her examination in chief, Ms. Legere stated that she had never been arrested since the fraud charges. In cross-examination, Ms. Legere expanded on that testimony by saying that she had never been to court for herself after the fraud charges. When reminded that she had been charged with obstruction of justice, which charge had been resolved by way of a peace bond in January, 2006, Ms. Legere stated that she was confused and had a poor memory.

[28] She then recalled the circumstances surrounding the obstruction of justice charge. In April, 2005, the police attended her residence to arrest Michael Legere. While doing so, Ms. Legere claims that police began to assault her other son Shane and that she felt compelled to go to his assistance.

[29] The fact that Ms. Legere was charged with an offence cannot disqualify her as a surety. The charge would have been withdrawn when she entered into the peace bond. There would have been no finding of guilt and no admission of the facts alleged.

[30] In cross-examination, Ms. Legere was questioned about the period of September, 2007 to March 8, 2009, during which time there was an outstanding warrant for Mr. Legere's arrest in relation to the parole violation. Ms. Legere testified that she saw her son frequently throughout this period but that she did not know that there was an outstanding warrant for his arrest until Mr. Legere informed her two days before he was arrested.

[31] She testified that she did not report him to the police because he told her that he would turn himself in. He did not do so.

[32] When questioned how public safety would have been safeguarded by her failure to report her son to the police, Ms. Legere responded that she was confused and that, in fact, she never knew that there was an outstanding arrest warrant.

[33] Mr. Fairney contends that Ms. Legere's contradictory testimony regarding her knowledge of the outstanding arrest warrant and regarding her obstruction of justice charge are associated with poor memory and symptomatic of her PTSD. I was presented with no evidence, expert or otherwise, to support this contention.

[34] I note that on other matters, such as her family history, Ms. Legere's testimony appeared to be detailed and precise. However, I am in no position to conclude that Ms. Legere was intentionally evasive or misleading.

Mr. Legere's Aboriginal Ancestry

[35] Ms. Legere's account of her family history is, sadly, consistent with the experience of far too many aboriginal people in this country, replete with dislocation, disconnection with family members and their aboriginal community, substance abuse, poverty and incarceration.

[36] Ms. Legere's grandmother, who was Blackfoot, was hospitalized at an early age, then placed into the care of family friends and relatives. At the age of 12, she went to live with her father who attempted to choke her to death. Ms. Legere's mother was an alcoholic. She was a single parent and had a meagre existence, moving frequently throughout Ontario. Ms. Legere was placed in foster care where she suffered from sexual abuse between the ages of 3 and 12. Ms. Legere reported the abuse to her mother who failed to notify the police.

[37] Ms. Legere had no contact with her aboriginal grandmother but spent weekends at the Nipising First Nation Reserve, where she was accepted as a member.

[38] Ms. Legere has four children. She receives no financial assistance from the accused's father, who is non-aboriginal. Her surety affidavit reveals very limited resources.

[39] Ms. Legere indicated that she takes great pride in her aboriginal heritage and has taught her children to be proud. She and her children have had limited contact with their aboriginal relatives and have had no involvement with any aboriginal organization. They live in Toronto.

[40] The Care Plan prepared by the Peel Aboriginal Network (Ex. #6) (the "Care Plan") indicates that Mr. Legere is "not really involved with his Aboriginal community."

R. v. Gladue

[41] The Supreme Court of Canada in Gladue interpreted the sentencing provisions of s. 718.2 of the Criminal Code. It states:

A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[42] The Supreme Court held that courts must take into account the unique systemic and background factors giving rise to the overrepresentation of aboriginal people in prison populations.

[43] At paragraph 83, it also stated that courts must take judicial notice of these systemic and background factors including the devastating consequences of residential schools and racism that result in higher levels of poverty, substance abuse and incarceration for aboriginal people.

[44] The principles in Gladue are applicable at a bail hearing: R. v. Brant [2008] O.J. No. 5375 (Ont. S.C.), R. v. Silversmith, [2008] O.J. No. 4646 (Ont. S.C.).

[45] In Brant, the Court sets out the factors which must be considered at a bail hearing. Parfett J. stated at paragraph 21:

What the principles in Gladue do alter is the method of analysis which the justice must use in determining whether detention is justified. Specifically, the court must look at whether the sureties offered, in the context of the aboriginal culture, can control behavior. The court must also look at whether detention of the aboriginal accused has a disproportionately negative impact on the accused and whether that impact could be alleviated by strict bail conditions. Finally, the court must look at whether aboriginal law and customs provide the assurances of attendance in court and protection of the public that are required for release. Each case will be dependent on its specific facts, but a broader analysis is required where the accused is an aboriginal.

Whether The Sureties Offered, In The Context Of The Aboriginal Culture, Can Control Behavior

[46] The evidence from both Ms. Legere and the Care Plan indicates that Mr. Legere has had limited exposure to and involvement with his aboriginal community. There was no evidence of what influence, if any, Mr. Legere's aboriginal culture would have on him in controlling his violent behaviour.

[47] Ms. Legere testified that she has a good relationship with her son and that his criminal behaviour only started after he moved out at the age of 16. However, she did concede that after he started to get in trouble with the law, she repeatedly counselled him to behave and that he did not listen to her.

[48] The Care Plan would have Mr. Legere referred to Anishnawbe Health for an assessment for alcohol abuse and employment issues. However, I heard no evidence that alcohol played any role in the offences for which he was convicted nor was it alleged that alcohol played a role in the charges that he is currently facing. Furthermore, I fail to see how alcohol and employment counselling could have any beneficial effect in Mr. Legere controlling his violent predisposition, even if that counselling were to be provided by an aboriginal organization.

[49] Mr. Fairney relies upon R. v. DDP, 2012 ABQB 229, for the proposition that, applying the principles in Gladue, even an aboriginal accused person with a "horrendous" criminal record can be released on bail. In that case, however, there was a firm plan for the accused to attend a six week treatment program for alcoholism, unlike the case at hand.

Whether Detention Of The Aboriginal Accused Has A Disproportionately Negative Impact On The Accused And Whether That Impact Could Be Alleviated By Strict Bail Conditions

[50] I heard no evidence on whether detention of the accused would have a disproportionately negative impact on him. However, given the higher rates of poverty and unemployment for aboriginal people, it follows that detention would have a deleterious effect on his employment prospects after his release. I am not satisfied that that impact could be alleviated by strict bail conditions. Given the nature of Mr. Legere's criminal record, I fail to see how anything short of strict house arrest, without employment exceptions, would adequately address public safety concerns.

Whether Aboriginal Law And Customs Provide The Assurances Of Attendance In Court And Protection Of The Public That Are Required For Release

[51] At paragraph 91 of Gladue the Supreme Court stated that the principles in that case do not just apply to aboriginal offenders or accused persons who reside on reserves:

Section 718.2(e) applies to all aboriginal offenders wherever they reside, whether on- or off-reserve, in a large city or a rural area. Indeed it has been observed that many aboriginals living in urban areas are closely attached to their culture. See the Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 4, Perspectives and Realities (1996), at p. 521:

Throughout the Commission's hearings, Aboriginal people stressed the fundamental importance of retaining and enhancing their cultural identity while living in urban areas. Aboriginal identity lies at the heart of Aboriginal peoples' existence; maintaining that identity is an essential and self‑validating pursuit for Aboriginal people in cities.

And at p. 525:

Cultural identity for urban Aboriginal people is also tied to a land base or ancestral territory. For many, the two concepts are inseparable.... Identification with an ancestral place is important to urban people because of the associated ritual, ceremony and traditions, as well as the people who remain there, the sense of belonging, the bond to an ancestral community, and the accessibility of family, community and elders.

[52] Therefore, the approach as set out in Gladue can apply to Mr. Legere's bail hearing even though he has never lived on a reserve and has had limited exposure to his aboriginal heritage and little contact with his aboriginal relatives.

[53] However, I heard no evidence regarding Mr. Legere's present affinity with or respect for aboriginal law or culture or how that would address concerns regarding the primary and secondary grounds. The only evidence, from both his mother and the Care Plan, is that he had limited involvement with the aboriginal community. I cannot conclude that aboriginal law and customs provide the assurances of attendance in court and protection of the public that are required for release.

[54] At paragraphs 19 and 20 of Brant, Parfett J. stated the following:

In the context of a bail hearing, it is my view that the principles set out in Gladue do not alter the fundamental duty of the justice hearing the bail application to apply section 515 of the Criminal Code of Canada, which states that,

o The Justice shall, order that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause why the detention of the accused in custody is justified.

Section 515 goes on to outline in subsection 10 that detention is justified on the grounds that detention is required to ensure his attendance in court (the primary grounds), where it is necessary for the protection or safety of the public (secondary grounds), or where it is necessary to maintain confidence in the administration of justice (tertiary grounds).

The Primary and Secondary Grounds

[55] Section 515(10)(a) and (b) of the Criminal Code state the following:

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

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

[56] Regarding the primary ground, Mr. Legere has no convictions for failing to attend court. He has ties to his mother and brothers. A job is waiting for him if he is released.

[57] However, he has a conviction in 2009 for possession of firearms contrary to a prohibition order. He was also in violation of his parole release in September 2007 and failed to turn himself in while wanted on a warrant for approximately seventeen months. It was during this time that he committed the robbery and firearm offences.

[58] Also, Mr. Legere was residing at and under the supervision of a halfway house operated by Corrections Services when he is alleged to have committed the offences presently before the Court. Lastly, Mr. Legere has a history of disciplinary issues while serving jail sentences.

[59] This is strong evidence that Mr. Legere is not amenable to and compliant with Court orders or supervision.

[60] The Crown contends that it has a strong case. Identity is not an issue. The first complainant was a childhood friend of Mr. Legere. There are other witnesses including the cab driver. There is also DNA evidence. Further, a preliminary hearing has already been concluded. The Crown contends that I am in a position to conclude that its case is strong, considering the advanced stage of proceedings.

[61] Nevertheless, I acknowledge that the Crown's case will bear far greater scrutiny at trial. Also, I am loath to place much weight on the issue of the strength of the Crown's case as doing so would be inconsistent with the presumption of innocence as guaranteed in s. 11(d) of the Charter.

[62] The Crown indicated that if Mr. Legere is convicted, it would seek a term of imprisonment of ten years. Ms. Gluzman also indicated that a dangerous or long term offender designation would be sought. The Crown contends that Mr. Legere has a strong motivation not to attend court to be dealt with according to law.

[63] In light of Mr. Legere's history as mentioned herein at paragraph 57 and 58, I conclude that the Crown has met its onus in establishing that his detention in custody is necessary to ensure his attendance in court in order to be dealt with according to law.

[64] Regarding the secondary ground, Ms. Legere said more than once that she would not hesitate to call the police if her son violated the terms of his bail. But my concern is not how the proposed surety would react after a breach but how any breaches, and in particular, the commission of any violent acts, would be prevented in the first place.

[65] Due to the nature of Mr. Legere's criminal record involving violence and weapons, it is clear that his detention is necessary for the protection or safety of the public.

[66] Furthermore, his history of non-compliance with court orders or supervision and his almost unbroken string of serious criminal offences committed over a relatively short period of time is strong evidence that there is a substantial likelihood that if released he would commit a criminal offence.

[67] Although there may be issues regarding the suitability of Ms. Legere as a surety, I would have reached the same conclusion had a stronger surety been proposed.

[68] I conclude that the Crown has satisfied its onus and that Mr. Legere's 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.

[69] Mr. Legere is hereby ordered to be detained in custody.