Court File and Parties

Case Name: R. v. Aghayere Justin Omoragbon

Between: Regina, and Aghayere Justin Omoragbon

Court: Ontario Court of Justice Location: Toronto, Ontario

Judge: P. Kowarsky J.P.

Heard: March 20, 2015 Judgment: March 25, 2015

Counsel:

• Crown Counsel: Ms. K. Nedelkopoulos
• Defence Counsel: Ms. M. Murphy

Judicial Interim Release Hearing

Reasons for Judgment

P. Kowarsky J.P.

A. Introduction

[1] At the conclusion of the bail hearing for Aghayere Justin Omoragbon on Friday March 20, 2015, I reserved my decision. These are my Reasons for Judgment.

[2] The accused (known as 'Justin') is 18 years old. What follows is an overview of his involvement with the criminal justice system.

B. History of Involvement with Crime

[3] The accused admitted his Youth Court Record, which was tendered into evidence and marked Exhibit #1. The Record reflects the following:

a) March 17, 2010, he was found guilty of carrying a concealed weapon. The disposition was 5 days pre-sentence custody, a Probation Order for 1 year and a Discretionary Weapons Prohibition Order for 2 years.

b) June 6, 2013, he was found guilty of (i) Obstructing a Peace Officer, and (ii) 3 counts of Break and Enter & Theft. The disposition was a Probation Order for 2 years on each charge, concurrent.

c) February 25, 2014, he was found guilty of (i) Break and Enter with Intent, (ii) Fail to Comply with a Disposition, (iii) Possession of Proceeds of Property Obtained by Crime, and (iv) Possession of Property Obtained by Crime under $5000.00 for the Purpose of Trafficking. The disposition this time was 67 days of time served and an 18-month Probation Order for the Break & Enter as well as a Probation Order for 18 months on each of the other charges.

[3] On October 7, 2014 the accused was charged with the following offences:

i) Possession of Property Obtained By Crime;

ii) Possession of a C.D.S.A. Schedule II substance for the Purpose of Trafficking

iii) Break and Enter with Intent;

iv) Mischief under $5000.00;

v) Fail to comply with a Y.C.J.A. Disposition; and

vi) Possession of Counterfeit Money.

[4] On October 9, 2014, he was released on a Recognizance of $2000.00 with his mother, Neita Omoragbon named as his surety. The Conditions of Release required him to reside with his mother, and to be on House Arrest with exceptions that included "While at School."

C. Current Charges

[5] On March 11, 2015, he was charged with the following:

Count 1: Break and Enter of a dwelling house with intent to commit an indictable offence;

Count 2: Fail to Comply with the House Arrest condition of his Recognizance dated October 9, 2014;

Count 3: Possession of Property Obtained by Crime under $5000.00;

Count 4: Possession of Property Obtained by Crime over $5000.00;

Count 5: Break and Enter of a dwelling house and commission of the indictable offence of Theft; and

Count 6: Possession of an instrument, namely gloves, suitable for breaking and entering.

[6] With respect to Counts 3, 4 and 5 he is jointly charged with Bibi Shaleesa Ali, who is apparently Justin's girlfriend.

D. The Onus of Persuasion

[7] Having regard to the fact that the accused is charged with the commission of indictable offences while bound by a Recognizance with respect to the commission of indictable offences, the onus is reversed.

[8] Accordingly, the accused is required to persuade the Court, on a balance of probabilities, on the Primary, Secondary and Tertiary Grounds, why it is not necessary that he be held in pre-trial custody pending the outcome of these criminal proceedings against him.

[9] The Crown Attorney informed the Court that her concerns were on the Secondary Ground, namely the protection and safety of the community.

E. The Allegations

[10] With the consent of Defence Counsel, the Crown read the Police Synopses into the Record. In summary, the allegations with respect to the October 7, 2014 charges are as follows:

a) Sometime in the afternoon, the Police received a complaint from a resident of 35 Kylemore Crescent in Toronto, that a Break and Enter was in progress there. The Police arrived on scene, and observed a male person matching the description provided by the caller, riding a bicycle in the vicinity of that address.

b) The Police stopped the rider who was in possession of a blue jacket, allegedly stolen.

c) During a search incidental to arrest, the police also located $490.00 in Canadian Currency, a 10 Euro note, a Counterfeit U.S.$100.00 note, a cell phone, 5 clear plastic bags, and 6.67 grams of Marihuana.

[11] The Police interviewed the person who had called the complaint in. He informed them that he was in the house when he heard someone attempting to break into the home. After hearing a window being smashed, he ran out, called 911, and observed the person who had apparently smashed the window, leaving the area on a bicycle. Although no property was taken, the cost of repairing the window was $500.00.

[12] The allegations with respect to the current charges are as follows:

a) On March 11, 2015, the accused was driving a black BMW motor vehicle, Ontario Licence Plate Number BSAB 298.

b) He then entered a residence located at 10 Terrington Court in Toronto, proceeded to the rear of the home, broke in, triggering the alarm. When a security guard responded by coming to the residence, the accused fled, and drove away in the black BMW motor vehicle. However, the security guard was able to see the male drive away in the vehicle. He was able to describe the driver, and managed to obtain the licence plate number of the car.

c) Shortly thereafter, the accused went to another residence located at 53 Bannockburn Avenue, broke in through the rear door, and stole numerous items including $470.00 in Canadian cash, $17 in U.S cash, iPads, jewellery, watches, blackberry telecommunication devices, a play station and keys for a BMW motor vehicle.

d) Police determined that the vehicle then being driven by the accused had been rented from "Rent-a-Wreck" where the manager confirmed that the vehicle had been rented from that business. Using a G.P.S. device the manager was able to track the vehicle to a parking lot between 52 and 62 Bannockburn Avenue.

e) The Police and the manager were then able to track the vehicle to 195 Exbury Road, Toronto, which was then the address of the accused and his mother. Upon arrival there, the Police located the accused sitting in the driver's seat and his co-accused sitting in the front passenger's seat of the vehicle.

f) After arresting both accused, the police found a pair of gloves and numerous articles, which appeared to have been stolen.

g) The Police made a detailed list of all the goods found in the vehicle at the time of arrest.

F. The Proposed Surety

[13] Defence Counsel presented Neita Omoragbon, the accused's mother, as surety. She testified that:

a) She is her son's surety with respect to his outstanding charges, and pledged $2000.00.

b) Until recently, she resided at 705-195 Exbury Road, Toronto, together with her husband and her son, the accused.

c) On March 11, the Police came to her home several times in order to search it. She would not allow them to enter because they did not have a Search Warrant. In due course, the Police did enter her home after indicating that they were authorized to do so.

d) As a result of that incident, the Landlord demanded that she and her family leave those premises. She complied, and moved into the home of another one of her sons, where she and her husband now live until she is able to rent another residence.

e) She is employed as a child-care assistant, works several hours a day, and her hours are flexible. Her husband, the accused's father, is unemployed. He receives monthly Disability and Canadian Pension Fund payments.

f) The accused has had "difficulties at school" and receives assistance from C.T.Y.S. workers, who "take him out and spend time with him."

g) On January 29, 2015 Justin was not feeling well so she took him to Humber River Hospital, where he was referred to Dr. Lakha Singh for a "psychiatric consultation."

G. Mental Health Consultation

[14] The results of that consultation are contained in a letter, headed "Mental Health Consultation," dated January 29, 2015, addressed to the referring Physician, Dr. K. Pirzada. A copy of that letter was submitted to the Court by Defence Counsel, and entered into evidence as Exhibit #2.

[15] The pertinent elements of that letter are as follows:

a) Justin "does not have any past psychiatric history and he is medically healthy, on no medications. He has a long history of cannabis use, up to five joints a day, however, recently over the past month or so, he has tried to cut this down to one joint a day."

b) Sometime in early 2014, he says that he was stabbed in the face during an attempt to rob him of his cell phone, and received medical treatment. "He believes that since that time he has not been quite the same."

c) Just prior to this psychiatric evaluation, "he has noted auditory hallucinations." However, "on mental exam, he presents as an 18-year-old boy who is calm and cooperative with the assessment…Insight is fully intact at this time and judgment is intact."

d) "In summary, this is an 18-year-old boy suffering from first episode psychosis in the context of heavy cannabis use over the past five to six years…There are no acute safety concerns and his insight remains intact."

He agreed to start taking an antipsychotic prescription medication called Risperidone, and to being referred to the Early Intervention Program in the outpatient psychiatry department of the hospital.

[16] Justin's mother testified that he was given a follow-up appointment at the hospital for February 25, 2015. However, prior thereto, on February 1, she had to leave for Granada because her mother was very ill. Justin did not attend his follow-up appointment while she was away.

H. Proposed Surety's Further Testimony

[17] Justin's mother told the court that she was away in Granada for 5 weeks, and returned on March 8, 2015. She had not told her husband about Justin's follow-up appointment at the hospital nor did she review his bail conditions with him. Her husband told her that while she was away, Justin behaved very well.

[18] Mrs. Omoragbon told the court that she searches his room "regularly when he is out of the room," and never found anything that should not have been there. Three days after her return to Toronto, Justin was arrested.

[19] Other than going to their "business appointments" which she could not specify, she and her husband are at home, and will supervise their son while he is on bail. She now works about 3 hours a day but her hours are flexible, and she will stop working if necessary. Although their income is limited, her older sons help with support when needed.

[20] She testified that she has never seen Justin smoking, although he does have lighters. She is "prepared to be his baby-sitter" and to pledge a further $3000.00 to $5000.00 to secure Justin's release.

I. The Rights of the Accused

[21] The foundation of our criminal justice system is the presumption of innocence, which means that the accused must be treated as though he were innocent throughout his passage through the criminal justice system until such time as he has been found guilty by a court of competent jurisdiction of committing the offences.

[22] Section 11(e) of the Charter of Rights enshrines an accused's constitutional right not to be denied reasonable bail without just cause, and Section 7 of the Charter accords to an accused the right not to be deprived of his liberty or security except in accordance with the principles of fundamental justice.

[23] The abundant jurisprudence with respect to these rights clarifies that:

• Imprisonment prior to trial should be the last resort. See R. v. Hajdu (1985), 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), 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), 139 C.C.C. (3d) 87 (Sask. C.A.); R. v. Framboise, [2005] O.J. No. 5785 (Ont.C.A.)

• Bail will be denied only in a narrow set of circumstances. See R. v. Pearson, [1992] 3 S.C.R. 665

J. The Secondary Ground

[24] The secondary ground is set out in section 515(10)(b) of the Criminal Code. It provides as follows:

"For the purposes of this section, the detention of an accused in custody is justified only...where the detention is necessary for the protection or safety of the public, including any victim 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."

[25] It is noteworthy that Section 515(10)(b) of the Criminal Code mandates that in considering the need for the protection or safety of the public, regard must be had to ALL THE CIRCUMSTANCES of the case, INCLUDING ANY SUBSTANTIAL LIKELIHOOD of the accused's re-offending.

[26] In R. v. Morales (1992), 17 C.R. (4th) 74 Chief Justice Lamer, as he then was, speaking for the Supreme Court of Canada, expressed the difficulty of evaluating "substantial likelihood" within the meaning of Section 515(10)(b) of the Criminal Code, as follows:

"While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated."

[27] The Crown's concerns and those of the Court are on the secondary ground. It must be remembered that it is not the role of the bail Justice to punish the accused. Rather, the overwhelming jurisprudence mandates that no matter how serious the allegations are, if a plan of release can reasonably be crafted so as to reduce the Court's concerns on the secondary ground to an acceptable level, the accused must be released on bail.

K. The Apparent Strength of the Crown's Case

[28] From the synopsis, coupled with additional details provided by the Crown Attorney, who received further information from the Police Report:

• The accused was identified by a resident of one of the homes concerned as was a stolen blue jacket located in his possession.

• He was also identified at the scene of the second break and enter by the security guard, who also noted the colour, make and licence plate number of the motor vehicle being driven away by the accused.

• The Police were able to contact "Rent-a-Wreck" when they discovered that the vehicle had been rented from that company.

• Together with the Police, using a G.P.S., the car was tracked to a parking lot between 52 and 62 Bannockburn Avenue, adjacent to 53 Bannockburn Avenue where the break and enter commit had occurred.

• The list of items found in the vehicle when the accused was arrested will likely match those items stolen from one or more of the residences involved on that afternoon.

• While there may be triable issues, including who actually leased the vehicle from "Rent-a-Wreck," at this early stage of the criminal proceedings against the accused it appears to me that the Crown indeed has a very strong case.

L. The Plan of Release

[29] Justin will continue to be bound by the conditions of his Recognizance executed on October 9, 2014.

[30] Furthermore, under the proposed new bail order, he will continue to live with his parents at whatever address they reside in. He will be amenable to the routine and discipline of the home. He will be under house arrest at all times except while in the company of his mother or father or while he is in attendance at school, which means that he will not be entitled to go to or from school on his own.

[31] He will not be found within a specified radius of the residences which he is alleged to have broken into nor will he be entitled to communicate with or contact his co-accused or any of the persons who are alleged to be the residents of such homes.

[32] In accordance with the "Mental Health Plan For Bail Release" dated March 20, 2015, submitted by the Mental Health Facility in this courthouse ("C.O.T.A."), tendered by the defence and entered into evidence as Exhibit #3, the proposed additional conditions of release would include:

• Attendance at C.O.T.A. upon release and thereafter as required;

• Meeting with his Central Toronto Youth Services ("C.T.Y.S.") workers as directed by C.O.T.A;

• Referral to an Early Intervention Program for psychiatric care;

• Attendance at all medical appointments as directed by doctors and C.O.T.A; and

• Sign necessary releases to enable C.O.T.A. to monitor his progress.

M. The Adequacy of the Plan of Release

[33] Past behaviour is a relatively reliable source with which to endeavour to predict future behaviour. When considering the question of whether in all the circumstances there is a substantial likelihood that the accused, if released subject to the proposed plan, will commit further criminal offences, past criminal conduct often portends future criminal conduct. Having regard to the alleged circumstances surrounding the commission of the numerous offences, the accused appears to go about his criminal behaviour with brazen assurance of his success, and with blatant disregard for the effect on the victims and their property.

[34] Summarizing the accused's criminal history, I note that:

• In 2010 he was found guilty of carrying a concealed weapon, which the Crown informs me, was a Bibi gun.

• In 2013 he was found guilty of obstructing a peace officer and 3 counts of break and enter with intent to commit indictable offences, which I understand to have been residences.

• Then while subject to a probation order for the next 2 years, on 25th February 2014 he was again found guilty of break and enter with intent, 2 counts of failing to comply with probation, possession of property obtained by crime and possession of property obtained by crime for the purpose of trafficking.

• After serving 67 days in prison, he was once again placed on probation.

• Some seven months later, on October 7, 2014, he was again charged with the charges enumerated in paragraph 3 of this judgment. These charges are similar to Justin's pattern of criminal conduct heretofore, except that now, in addition, he seems to have graduated to "possession of a C.D.S.A. Schedule II Substance for the purpose of trafficking as well as possession of counterfeit money.

• Some 5 months after being released on bail with respect to the October 7 charges, he is once again charged with offences in conformity with his general pattern. But now, he is also charged with possession of property obtained by crime both over and under $5000.00 as well as possession of gloves ostensibly used for breaking and entering.

[35] Justin is an admitted Marihuana user. Simply telling the psychiatrist that he is trying to reduce his marihuana use from 5 joints a day to 1 joint a day, will not work. In all likelihood he will need intensive ongoing therapy and counselling in order successfully to contain his obvious drug addiction, perhaps leading to a more law-abiding lifestyle. Exhibit #2 reflects the following statement: "He was noted by the emergency room physician to be incoherent and not able to carry on a normal conversation." This is not surprising having regard to his regular use of Marihuana.

[36] It is noteworthy that the psychiatric assessment from Humber River Hospital does not find Justin to be mentally ill. Other than perhaps one psychotic incident, he is in good health both physically and mentally. The examining psychiatrist stated his conclusion as follows: "In summary, this is an 18-year-old boy, suffering from first episode psychosis in the context of heavy cannabis use over the past five or six years."

[37] Consequently, I see no reason why he needs to follow any of the conditions of release suggested by C.O.T.A., which in any event, I have little confidence that he would follow, judging from his past failure to comply with Court Orders, both Probation and Recognizance.

[38] Justin's mother is already his surety on the October 2014 Recognizance, having pledged $2000.00. She is now willing to pledge an additional $3000.00 to $5000.00 as surety for her son on his current charges.

[39] It seems to me from the evidence regarding the paucity of her financial situation that she in all likelihood does not possess sufficient funds to enable her to make such additional financial pledges.

[40] While Mrs. Omoragbon has been her son's surety for the past seven months, she has been unable to supervise him or control his behaviour. When she unexpectedly left the country for 5 weeks as a result of her mother's illness, she gave no instructions to her husband regarding Justin's bail conditions or his follow-up medical appointment scheduled for February 25 at Humber River Hospital.

[41] I find that although Justin's mother means well, I am not satisfied that she will be able to supervise him on a new Order to Bail. I understand that Justin has lived with her all of his life, and yet his criminal behaviour started while he was still a youth, and continues to escalate.

[42] In my view, the proposed plan of supervision is virtually a carbon copy of his current Recognizance. It cannot reasonably be made any stronger, and the mother, although willing, is not capable of supervising her son, which is not surprising given her admission that "my brain is all mixed up."

[43] While, I do believe that the accused certainly needs counselling, constant supervision and guidance, my responsibility is the protection of the public, which I do not find that this plan adequately addresses.

N. Disposition

[44] For all of these reasons I am not satisfied that the accused has met his onus on the secondary ground. Consequently, I order that he be detained in custody until he has been dealt with according to law.

P. Kowarsky J.P.