Case Name
R. v. Martinez-Mayorga
Court Information
Between
Regina and Yercit Freddy Martinez-Mayorga
Ontario Court of Justice
Before: P. Kowarsky J.P.
Heard: August 31, September 8 and 25, 2015
Judgment: October 5, 2015
Counsel
Crown Counsel: Mr. P. Clement
Defence Counsel: Mr. J. Ettiene
Judicial Interim Release Hearing
Reasons for Judgment
P. KOWARSKY J.P.
A. INTRODUCTION
[1] At the commencement of this hearing, the accused was facing the following two charges:
On or about May 4, 2015 did break and enter "Cash Max" at 1081 St. Clair Avenue West in Toronto, with intent to commit an indictable offence therein, contrary to the Criminal Code; and further,
On or about May 4, 2015 did willfully render inoperative a safe, the property of "Cash Max", located at 1081 St. Clair Avenue West in Toronto, the value of which did not exceed five thousand dollars, and thereby commit mischief contrary to the Criminal Code.
[2] During a continuation of these proceedings on September 25, 2015, the Crown Attorney, with the consent of defence counsel, submitted an additional Information, sworn on that day, charging the accused as follows:
- On or about the 27th April, 2015, in the City of Toronto, Yercit Freddy Martinez-Mayorga did by deceit, falsehood or other fraudulent means, defraud Bibi Fazal of money of a value not exceeding $5000.00 contrary to section 380(1)(b) of the Criminal Code.
[3] Both counsel agreed that this new charge, which predates the initial two charges, should form part of these proceedings and that the court's decision on this application for bail would affect all three charges. The Crown is seeking a Detention Order on the Primary and Secondary grounds pursuant to section 515(10)(a) and (b) of the Criminal Code.
[4] The Crown informed the court that the accused has no known criminal record in Canada. However, he was arrested in the past, and the police do have a mug shot of the accused arising therefrom.
[5] In accordance with the Crown's information, there is an Arrest Warrant for the accused stemming from a charge of "threatening death" out of Quebec, and that has been outstanding since June 15, 2013.
B. THE CROWN'S CASE AGAINST THE ACCUSED
[6] With respect to the two charges relating to the "Cash Max" incident on May 4, 2015 the Crown Attorney informed the court that according to the police, Mr. Martinez-Mayorga is associated with a South American Theft Group; a type of loosely organized criminal organization. The offences are alleged to have been committed by the accused in collaboration with 3 or more others. Their offences are numerous and the modus operandi appears to be consistent with that of the South American Theft Group whose members allegedly come to Canada for the specific purpose of committing serious break and enter crimes.
[7] The Crown also referred to a publication called "Police Quarterly" authored by D. Caputo, of the Canada Border Services Agency, dealing inter alia with a South American Theft Group. The publication describes the group's activities and modus operandi utilized in committing these crimes.
[8] Defence Counsel, Mr. Ettiene, objected to the submission of this publication on two grounds, namely that it constitutes hearsay evidence, and makes no mention whatsoever of his client's name. I allowed the Crown to make reference to the publication since hearsay evidence is generally permitted at Bail Hearings. However, the Crown did not tender it into evidence.
[9] The Criminal Code, section 518(1)(e) provides that in any proceedings under section 515, "the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case."
[10] I do accept the "Police Quarterly" as trustworthy and that according to that publication, I accept that such a group is likely to exist, and that the modus operandi of members of such group bears striking resemblance to the modus operandi with respect to the numerous break-ins and theft committed by a group of males, allegedly of South American origin, who have either been arrested or are being sought by the police as the perpetrators of the numerous crimes outlined by the Crown in significant detail.
[11] The Crown alleges that the accused is believed to have committed the break and enter and mischief offences, in collaboration with members of a group comprising Daniel Elias Morales Elgueta, Ricardo Javier Parada Neira, Carlos Orellana Pizzaro and Juan Enrique Figueroa Barahona (hereinafter collectively referred to as "the group").
[12] The Crown advised the court that the police are investigating numerous crimes allegedly committed by members of the group during April, May and June of this year. All of these crimes were very carefully and thoroughly planned and executed.
[13] In essence, the group leased or purchased motor vehicles from specified dealers in the GTA for the purpose of traveling to and from high-end finance and gold exchange stores. They entered the stores during regular business hours. One or more of them distracted the servers by making enquiries or transferring money, while the others cut the alarm wires and taped over the surveillance cameras thereby disabling them.
[14] Later, usually the same day or night, after the close of business, the perpetrators would return, and break in by smashing windows or otherwise. They used tools such as wire cutters and blow torches to break into cash registers and safes, removing, inter alia, hundreds of thousands of dollars in Canadian and other currencies as well as gold, jewellery, computer systems, other communication devices and much more including the actual removal of safes. After ransacking the stores, the stolen items were loaded into the vehicles, and thereby the perpetrators made good their escape.
[15] Empowered with Search Warrants and Production Orders, the police have been able to recover some of the stolen cash, gold and goods, in particular from a residence located at 53 Amherst Avenue in Toronto, where members of the group are alleged to have been living. A similar modus operandi was used for every such break and enter.
[16] In most cases, video surveillance did capture the perpetrators while they were in the process of disabling the alarm and camera systems, and thereby the police have been able to identify a number of these perpetrators of whom the accused is one. Although there is presently no direct or forensic evidence implicating the accused in all of these crimes, he is clearly identified by police as one of the perpetrators of the crimes at Cash Max on May 4, 2015.
[17] The synopsis, constituting a summary of the these offences, was read onto the record by the Crown. A copy thereof was also provided to the court by both counsel. Verbatim, the synopsis states that on May 4, 2015 the group:
"entered the Cash Max financial institution located at 1081 St. Clair Avenue West during regular business hours. The group worked together to distract the staff with questions, in-branch transactions and by physically blocking their view while members of the group cut the alarm to the front door and covered the motion sensors with tape.
"The group operated in a well-organized manner throughout the incident. Once the security precautions had been tampered with, the accused left the store. This incident was captured on security video.
"Later that same night, the group re-attended the store while it was closed and smashed a window gaining entry to the premise. No alarm was activated due to the security system being tampered with earlier in the day. The group ransacked the office and attempted to remove a large metal safe. The group spent approximately five hours attempting to break in/remove the metal safe and in the end were unsuccessful. At approximately 5:30 am the group fled the premise in an unknown direction making good their escape.
"During the investigation the accused [Yercit Freddy Martinez Mayorga] was identified from the video surveillance footage in comparison with a mug shot from a previous arrest. Officers received information the accused would be in attendance at an immigration hearing at 6900 Airport Rd, Mississauga. As a result, the accused was subsequently arrested in the presence of his immigration lawyer, Smedley PRESCOD. The accused was transported to 13 Division and was held pending a show-cause hearing."
[18] According to the police, the damage caused amounted to $4000.00.
[19] The following additional information regarding members of the group was tendered by the Crown:
a) Daniel Elias Morales Elgueta is also charged with the offences which the accused is facing plus a series of other similar offences. On June 18, he left Canada, and went to Chile via the United States of America.
b) Carlos Orellana Pizzaro arrived in Canada on April 4, 2015 and claimed refugee status. He is also charged with this and other offences. It is unknown whether he is still in Canada; there is a Canada wide warrant for his arrest in force.
c) Ricardo Javier Parada Neira is also charged with this and other similar offences alleged to have been committed during April, May and June of 2015. According to the police, he has gone back to Chile.
[20] On consent, with respect to the fraud charge, the Crown read the police synopsis onto the record.
a) On or about April 27, 2015 Bibi Fazal was on a TTC bus in Toronto. She had her purse over her shoulder. The following morning she discovered that her wallet was missing from her purse, and realized that she had written her personal identification number for her bank card on her wallet.
b) When she called and directed Scotiabank to cancel her bank card, she was told that her card had been used.
c) The police investigated, and found that on April 27, 2015 between 5:20 and 5:25 pm, Ms. Fazal's bank card had been used at the CIBC located at 1154 St. Clair Avenue West in Toronto. There had been three transactions of which the first two were successful, and a total of $700.00 had been withdrawn.
d) The police executed a Production Order, and Mr. Martinez-Mayorga was identified as the perpetrator from the photograph of the person using the complainant's bank card at the time.
C. THE BACKGROUND OF THE ACCUSED AND HIS STATUS IN CANADA
[21] Mr. Martinez-Mayorga was born in Colombia on September 15, 1972. He has a grade 9 education. Leaving his entire family, including two children, he came to Canada in 2006, claiming refugee status on the grounds that he was afraid of the Colombian gorillas, who allegedly shot him. In 2008 he was granted status as a Protected Person and has remained here ever since. There is no evidence that he ever applied to become a Permanent Resident in Canada. He has no family here.
[22] On August 21, 2015 the accused was arrested while at an Immigration Hearing. He was brought to court for a bail hearing. The matter was adjourned on consent, and on August 31, the hearing commenced.
[23] The accused's current immigration lawyer, Mr. Dov Maierovitz, testified that he was recently retained to represent Mr. Martinez-Mayorga. In summary, Counsel Maierovitz's evidence is as follows:
a) He was retained to assist the accused with his immigration problems. The accused is currently on an Immigration Hold.
b) In 2008 when the accused was granted status as a Protected Person in Canada, the Immigration and Refugee Board recognized the danger, which he faced if he returned to Colombia.
c) The Minister of Immigration recently made an application to the Immigration and Refugee Board to vacate the Board's previous determination with respect to the accused's status as a Protected Person. The Minister attempted to notify the accused to appear at the hearing, but apparently he had changed addresses without complying with his obligation to notify the Ministry, and the Ministry was unable to locate him. The application was granted in absentia.
d) Counsel Maierovitz testified that had submitted an application today (July 31, 2015) for the matter to be re-opened.
e) Although the accused is presently subject to an immigration hold, the Government is not permitted to return him to Colombia pending the outcome of a Pre-removal Risk Assessment. Furthermore, he could not be deported until the criminal charges against him have been dealt with according to law.
[24] The Crown presented the Court with a Certified Copy of the "Notice of Decision" dated June 17, 2015. Despite the objection of defence counsel, I accepted this document into evidence, marked Exhibit #1 in that I regard such a document to be credible, trustworthy and relevant to these bail proceedings, pursuant to my jurisdiction under section 518(1)(e) of the Criminal Code, which provides as follows:
"In any proceedings under section 515, the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case."
[25] The Notice of Decision (hereinafter referred to as the "Decision") is in relation to an "Application to Vacate a Determination" under section 109 of the Immigration and Refugee Protection Act, "in the claim for refugee protection of Yercit Freddy Martinez Mayorga." The Decision reads as follows:
"On the 20th of May 2008, you were determined to be (a) Convention refugee.
On the 20th of October 2014, the Minister of Public Safety and Emergency Preparedness applied to reconsider and vacate the above determination.
The claim was heard on the 3rd of June 2015.
THE APPLICATION IS ALLOWED AND YOUR CLAIM(S) FOR REFUGEE PROTECTION IS DEEMED TO BE REJECTED AND THE DECISION THAT LED TO THE CONFERRAL OF REFUGEE PROTECTION IS NULLIFIED."
The Decision is signed on June 17, 2015 "For the Registrar."
[26] I will quote verbatim certain pertinent sections of the Decision itself.
"At the initial sitting, the panel was concerned that the respondent was not aware of the proceedings, as the envelope addressed to his last known address had been returned unopened and unacknowledged to the IRB.
"The Minister's representative effected further service on the respondent at his place of residence or at least his last known place of residence and at the address of the immigration consultant who had recently acted on his behalf in relation to the renewal of a work permit and the evidence for this is found at Exhibit 6.
"The panel is satisfied that the Minister's application and evidence has come to the attention of the respondent and that he is aware of today's proceedings. Neither the board nor the Minister have received any contact from the respondent or from any legal representative acting on his behalf.
"On a balance of probabilities, the panel is satisfied that the respondent has been properly served with notice of these proceedings."
[27] On page 3 of the Decision, the IRB held as follows:
"He [The respondent] claimed that he had been shot in the leg by the FARC militia in March 2006, when he refused to pay extortion money to the FARC. His refugee claim was largely based on his fear of retribution by the FARC.
"The Minister's counsel submitted fingerprint evidence, which connected the respondent to a conviction for attempted aggravated robbery in Colombia. The same fingerprint evidence also disclosed that an individual with those fingerprints but operating under the identity of Santiago Velasquez Holguin, born on September 15, 1978 had also been convicted of criminal offences in Columbia. In brief, the Minister's counsel alleges that the respondent's previous allegations of persecution in Colombia are false."
[28] The Decision comprises a number of Exhibits in support of the Minister's application. Also at page 3, the Decision reads as follows:
"The evidence discloses at page 99 of Exhibit 4 that Yercit Freddy Martinez Mayorga was found guilty of the following offences in Colombia.
In October 1999 he was sentenced to imprisonment for nine months and 21 days for the offence of aggravated larceny.
In July 2000 he was sentenced to 18 months and 20 days for the offence of aggravated larceny.
In January 2010 he was sentenced to 21 months in prison for the offence of aggravated larceny.
In February 2011 or at some other time he had received orders from judges in Colombia that he not be allowed to leave Colombia.
"Under the name Santiago Velasquez Holguin, the respondent was convicted of the offence of aggravated robbery and sentenced to 44 months imprisonment.
"In October 2002, the respondent told a court in Colombia that he had been shot in the commission of a crime. This evidence contradicts the allegation made at the refugee hearing that the respondent had been shot by the FARC."
[29] In Black's Law Dictionary, Seventh Edition, "Larceny" is defined as "The unlawful taking and carrying away of someone else's personal property with intent to deprive the possessor of it permanently." And "Aggravated Larceny" is defined as Larceny accompanied by some aggravating factor (as when theft is from a person).
"Robbery" is defined as "The illegal taking of property from the person of another, or in the person's presence, by violence or intimidation." "Aggravated Robbery" is defined as "Robbery committed by a person who either carries a dangerous weapon – often called armed robbery – or inflicts bodily harm on someone during the robbery."
D. THE POSITION OF THE ACCUSED
[30] In the middle of this hearing, on September 8, 2015, defence counsel produced a large set of documents which counsel advised constituted an application prepared by the accused's immigration lawyer, Mr. D. Maierovitz, for submission to the Immigration and Refugee Board (IRB). This application is for an Order reopening the case of Mr. Martinez-Mayorga, and reinstating his refugee status as a protected person in Canada. Although I was not prepared to accept these documents as an exhibit, I did accept that such an application is currently being made, and that the attendant documentation is a collection of material purporting to prove that the IRB erred in revoking the accused's refugee status because his alleged Criminal Record in Colombia was actually that of another person who had been using the identity of Mr. Martinez-Mayorga in Colombia, and that that person had committed the offences alleged by the IRB to have been committed by the accused. This, of course, injected an entirely new perspective to this case. In particular, it called into question the entire issue of the apparent dangerousness of the accused relative to the secondary ground consideration.
[31] Defence counsel called Mr. Orlando Munoz, a Spanish–speaking lawyer who is Mr. Maierovitz's articled clerk, to testify in relation to the accused's reopening application before the IRB. Mr. Munoz testified, and was vigorously cross-examined by the Crown Attorney.
During his testimony numerous documents were submitted, and entered into evidence as exhibits. I encapsulate the evidence of Mr. Munoz below.
[32] During 2013, Mr. Martinez-Mayorga wanted to vote in the upcoming presidential elections in Columbia. He applied to the Columbian Governmental Authorities for a renewal of his Identification Card, which he needed in order to cast his vote. The Columbian Authorities ostensibly informed him that his ID card would not be renewed because of his extensive criminal record in Columbia over the period from October 1999 to January 2010.
[33] Mr. Martinez-Mayorga believed that someone else named Santiago Valesquez Holguin, had been using his identification particulars as an alias, and that Mr. Holguin was the one who had committed the crimes in Columbia, crimes which had been attributed to the accused. At the request of the Columbian Authorities, the accused provided them with multiple documentation including certificates regarding himself, his background, his education and his family.
[34] With the assistance of his Colombian family and legal representation, the Colombian Authorities investigated the alias allegation presented by Mr. Martinez-Mayorga, and found it to be true. In due course, the alias's name was removed from their records and Mr. Martinez-Mayorga appears to have been cleared of the criminal charges concerned. He subsequently received a refreshed Colombian Identity Card, with the number 79657720, which is the ID number that he had originally received on October 22, 1990. Mr. Munoz submitted that ID card. A photocopy of the front and back thereof was made and entered into evidence as Exhibit #9.
[35] Mr. Munoz testified that he studied the documentation constituting the Revocation decision of the IRB, and actually attending the offices of the Colombian Consul in Toronto, with whom he discussed and made extensive enquiries regarding the entire matter. In his presence, the Consul logged onto a Colombian Website, entered the ID number of the accused, and downloaded a one-page document purporting to be the accused's Criminal Record in Colombia. That document reflects that Mr. Martinez-Mayorga is not wanted in Colombia by the police authorities in relation to any criminal activity, and that therefore, "his record is clear." This document was entered into evidence, marked Exhibit #8.
[36] Noteworthy is that the one-page record does not indicate whether or not Mr. Martinez-Mayorga had ever been convicted of any criminal offences in the past – just that he is not wanted there by the police at this time. Exhibit #8 was in Spanish, to which is attached a sealed and sworn translation into English. It is headed: "Republic of Columbia, Ministry of National Defence, National Police of Colombia, and states that on September 3, 2015 "the citizen with the Certificate of Citizenship Number 7965 7720" named Martinez Mayorga Yercit Fredy "is not actually required by any judicial authority."
[37] Further in his testimony, Mr. Munoz referred to the decision of Revocation by the IRB. On page 3, reference is made to page 99 of an exhibit thereof that in 1999, Mr. Martinez-Mayorga was sentenced to imprisonment for 9 months and 21 days for the offence of aggravated larceny. However, according to the IRB, at page 71 of the Revocation Hearing on June 3, 2015, Mr. Martinez-Mayorga had originally claimed at his Immigration Hearing in 2006, that he had been found guilty of an assault in Colombia in 1999, and that the matter had been "settled" so that he had no criminal record in Colombia.
[38] Also, on page 1 of the Revocation Hearing on 3 June, 2015, the IRB stated that Mr. Martinez-Mayorga's "convictions warrant and alternate identity have been revealed through a fingerprint analysis and background check. At the time that Mr. Martinez-Mayorga was granted refugee protection in Canada, he was still under a probation order for his 2006 convictions, and was ordered by the judges not to leave Colombia."
[39] Exhibit #4 is a collection of certified copies of Spanish correspondence, dated September 4 2015 and officially translated into English; one being a letter dated April 21, 2014 from Mr. Martinez-Mayorga to Zulay Garcia Villamizar, Group Coordinator of the National Registrar Office of the Civil State of Bogota, Colombia requesting that the references in regard to the alleged alias be cancelled, and "to leave in force the citizenship card number 79 657 720, which is the one that identifies me as a Columbian citizen."
[40] In addition, Mr. Munoz submitted a response dated May 6, 2014 from Zulay Garcia Villamizar, requesting that a number of documents be submitted in support of Mr. Martinez-Mayorga's application. A translated copy of Mr. Martinez-Mayorga's letter enclosing copies of all requested documents was submitted to the court.
[41] Exhibit #5 is a certified copy of a letter, translated from the attached Spanish into English headed: "National Civil Status Registry" in terms of which the National Director of Identification formally notifies Mr. Martinez-Mayorga the Citizenship Card of Santiago Velasquez Holguin C.C. No. 80114935 from Bogota under resolution No. 6084 "by which are cancelled some citizenship cards due to issuance of multiple cards."
E. THE EFFECT OF THE TESTIMONY OF MR. MUNOZ
[42] The two versions of the accused's criminal background in Colombia are diametrically opposed to one another. The ultimate determination of that conflict is a vital factor in the secondary ground consideration as to whether or not there is a substantial likelihood of the accused's committing further criminal offences upon release.
[43] Having seen the relevant documentation, I am satisfied that an application is being presented to the IRB for an Order cancelling the revocation, and reinstating the accused's refugee status in Canada, essentially on the grounds that the accused's identity had been fraudulently used by another person, and that, after extensive investigation, the Colombian authorities cancelled the identity information with respect to that person, and confirmed that Mr. Martinez-Mayorga is not wanted by the police in Colombia.
[44] I am mandated to conduct a thorough examination of all the circumstances including whether the accused is a flight risk and whether there is a substantial likelihood that if released he would commit further criminal offences which would endanger the welfare and safety of the public.
F. THE ONUS OF PERSUASION
[45] At the commencement of the bail hearing, there was some discrepancy between the Crown and defence counsel as to whether or not the accused was ordinarily resident in Canada. It is common ground that the accused came to Canada in 2006 seeking refugee status in order to be able to reside here legally. In 2008, he was granted Protected Person status. It seems to me that his intention has always been to reside in Canada.
[46] In R. v. Kirk, [2001] O.J. No. 5014 (O.S.C.) Hill J. held that whether a person is ordinarily resident in Canada is a question of fact. It must be voluntary and there must be a degree of settled purpose; a sufficient degree of continuity." See also the case of R. v. Moeineddin, [2004] O.J. No. 1847 (O.S.C.) In R. v. Oladipo, [2004] O.J. No. 5028 (O.S.C.), the court held that a person who is in Canada unlawfully cannot be said to be ordinarily resident in Canada.
[47] In light of the jurisprudence, for the purposes of section 515 of the Criminal Code, I am satisfied that the accused is in Canada lawfully notwithstanding the immigration hold. Consequently, the onus is on the Crown to satisfy the court, on a balance of probabilities, that the accused's pre-trial detention is justified on any one or more of the grounds set out in section 515(10) of the Criminal Code.
G. THE APPARENT STRENGTH OF THE CROWN'S CASE
[48] With respect to the two break and enter charges which the accused is facing at this hearing, according to the police, he was captured on video surveillance in the company of the other perpetrators at the "Cash Max" store during business hours on May 4th 2015, while the alarm system and the security cameras were being disabled. He was recognized from a mug shot which the police had taken in the course of a prior arrest. Whether he will also be charged with committing any other offences in collaboration with the group is unknown, and therefore not a consideration in relation to bail on the charges before me.
[49] In relation to the charge of fraud, I am satisfied that the Crown's case appears to be very strong, since the accused was captured on video surveillance in the process of using the complainant's bank card and withdrawing money.
[50] On these two charges, I am satisfied that the Crown's case against the accused appears to be securely entrenched in a strong evidentiary foundation.
H. THE PLAN OF RELEASE
[51] All the circumstances must be weighed against the strength of the plan that is being proposed for Mr. Martinez-Mayorga's release. Since it is not the task of the bail justice to punish the accused, it behooves the court to examine the release plan carefully, with a view to determining whether the plan is sufficient to reduce the Court's concerns to a reasonable level.
[52] The first of two persons being proposed as sureties is Ivonne Lorena Aguirre Urrea. Her testimony may be encapsulated as set out hereunder.
a) She is a 29-year-old Canadian citizen who came to Canada from Colombia in October 2004. She lives with her mother, her brother and her 6-year-old son in an apartment in Toronto. She spent two years at Humber College studying architecture, and for the past 3 months she has been employed as a data entry worker for a company called Docuvit. Her salary is approximately $21,000.00 per year.
b) She and the accused's sister were friends in Colombia, and through her, she met the accused. Although she saw the accused from time to time, she never spoke with him there. When the accused arrived in Canada in 2006, he lived with her and her then boyfriend for a while. She is prepared to supervise the accused in conjunction with Yuliana, who, according to her, is the accused's common law wife. She has known Yuliana for a year but they have not been in regular communication with one another. The day after the accused was arrested, Yuliana called and asked her to propose herself as a surety for him.
c) Until three days ago she had $2000.00 in her bank account, and then she added another $2000.00 which she had been keeping in a closet in her home. She is prepared to pledge the full $4000.00 to assist in securing the release of the accused.
d) Under cross-examination she testified that she kept the cash at home, and didn't know that the bank pays interest on savings accounts. Her mother, who also works at Docuvit, and earns $22,000.00 per year, pays the rent, and Ms. Urrea contributes $400.00 per month towards the food. She does own a motor vehicle, and pays the insurance, gas and maintenance costs. Her savings are derived from her government student loan.
e) The accused's entire family lives in Colombia, but he wants to bring his family here. She has no idea what kind of work he did in Colombia. The accused initially worked on demolition and painting in Canada. But after he moved out of her apartment soon after he arrived, she did not keep track of him. I contrast, however, she then testified that she does speak with him over the phone "every second day or so."
f) If required, she together with her son, is prepared to move in with the accused and Yuliana. If he breaches any of the conditions of his bail, she is prepared to report him to the police but she is confident that he will comply fully.
[53] The second proposed surety was Yuliana Andrea Vergara Restrepo, who testified with the assistance of the Spanish Interpreter. She is the accused's common law wife. Together with the accused and her two children, aged seven and two from a previous relationship, she lives in a two bedroom apartment at 1303 Wilson Avenue, Unit 611 in Toronto. The accused treats her children as though he were their biological father.
[54] She and the accused have known each other for 5 years. They started dating in November 2014, and he moved in with her in January of this year.
[55] In about 2004, soon after her family was killed by FARC, she fled from Colombia where she was born. She lived in Boston, U.S.A. for 6 years, and then, because her brother was living in Toronto, she came to Canada in 2010, and was accepted as a convention refugee in 2011. She is currently awaiting the outcome of her application for permanent residence.
[56] She works in painting and cleaning, sometimes together with the accused. She earns $13 an hour for painting, and $60 for each house that she cleans. She is confident that the accused would be able to work with her, if released.
[57] She recently became aware of the accused's immigration problems, and contacted his sister and family who retained a lawyer to assist in obtaining the records needed to resolve his immigration problems. Via email she received the necessary documents, had them officially translated into English, and then gave them to defence counsel. She is absolutely convinced that someone else had been using the accused's name and identification, and that that person had committed the crimes with which the accused had allegedly been convicted in Colombia.
[58] An exchange between the Crown and Ms. Restrepo went as follows:
CROWN: "Why are you surprised that the Columbian Police would match the fingerprints of Mr. Martinez-Mayorga who's standing here in the box, with an individual by the same name in Columbia?"
WITNESS: "I really don't know what's happening. I just really know that there was another person with his name."
CROWN: "But you're not suggesting there's another person with his fingerprints wandering around Columbia?"
WITNESS: "They're using his name, yes, but more than that, I didn't enquire."
CROWN: "But using his fingerprints, you'd agree it's not possible for someone else to be using his fingerprints down in Columbia except him?"
WITNESS: "In Columbia, yes, it's possible."
[59] I understand from her last statement that she was alleging that in Colombia there is so much fraud and corruption that somehow or another, this could be done.
[60] She has a fully paid motor vehicle, and in her savings account, she has about $3200.00 which she is prepared to pledge as security towards the release the accused.
I. ANALYSIS
[61] Bail must always be considered in conjunction with, and in the context of, all the circumstances. In my view, these include but are not limited to, the accused's criminal antecedents, his lifestyle, his family ties and responsibilities, his financial situation, his education and employment, both historical and current, his associates, his honesty, his character and his history of compliance with the Law as well as with Court and Tribunal Orders.
[62] My starting point is the issue of the accused's identity and his immigration status, the findings of the IRB, and the decision of the IRB to revoke his refugee status, and placing him on an immigration hold. There is currently an application being brought for the revocation to be reopened in light of new evidence in relation to the alias issue in Colombia. While I cannot ignore that evidence was submitted to the effect that he ostensibly has a clean record in Colombia, where the authorities appear to be satisfied that his identification had been used by someone else, who was stripped of that identification, and that the accused's identification card was renewed. If indeed it is true that the accused does not have a criminal record in Colombia, and that he is not wanted by the Colombian police, there may well be a significant primary ground concern, but the secondary ground concern of future dangerousness and public protection, is diminished.
[63] During the course of the hearing, I exercised my jurisdiction under section 518(1)(a) of the Criminal Code, placed the accused under oath, and asked him numerous questions. The relevant segments of my questioning are as follows:
a) He knows nothing about the allegation of "threatening death" in Quebec or that a warrant for his arrest is outstanding in that province.
b) Although he has no Criminal record, he admitted to having been charged with a number of criminal offences in Canada in the past. He testified that all of those charges had either been withdrawn or dismissed.
c) He told me that at some point while he was on bail, he was charged with a breach of a 'no contact' bail condition, but that he had been acquitted.
d) After testifying that he had been subject to a Probation Order, it appeared that a disposition had been a "conditional discharge" coupled with a Probation Order, and that upon successful compliance therewith, he had been left with no criminal record.
e) Mr. Martinez-Mayorga is employed in the painting, cleaning and demolition industry, and often works with his wife.
[64] Of great concern is the fact that the accused's history of involvement with the justice system in Canada relates mostly to crimes of dishonesty and deceit, including his three current charges, even though he has managed to avoid conviction on numerous occasions.
[65] He was meandering, circuitous and evasive when testifying about his prior contact with law enforcement in Canada, and appeared to be non-compliant with his legal obligations. For example, he did not inform the Immigration authorities of his new addresses every time he moved resulting in extreme difficulty of serving him personally with the Revocation Hearing documentation. He denied having received notification of that hearing, and yet, the IRB confirmed having served the papers on his then immigration legal representative, who provided it to the accused.
[66] The evidence suggests that the accused's occupation is painting, cleaning and demolition work, which by his own admission, yields income of some $18,000.00 to 20,000.00 annually. This seems hardly enough to enable him to purchase, insure, maintain and drive a car. In addition, it is difficult for me to accept that he could afford to sign lease agreement requiring monthly rental payments of $1100.00, amounting to $13,200.00 per annum in rental only. It strains credulity that his only income is as stated by him.
[67] He testified that he has never returned to Colombia. However, on two occasions he left and went once to Panama to see his mother and his daughter, and another time to Cuba on vacation. On both occasions he traveled using his Canadian travel documents.
[68] When cross examined by the Crown about an application for a work permit which he completed and signed on January 7, 2015, he informed the authorities that his last entry into Canada was on June 30, 2015 when he entered Canada from Fort Erie in the U.S.A.
[69] He stated that "a man accused me of stealing jewellery from a jewellery store." Further, that 5 or 6 years ago he was charged because the police said that he broke the window of a car. However, after prodding by the Crown he admitted that in fact he had actually been charged with 10 or 11 offences of breaking and entering motor vehicles "something like that" and had spent several weeks in pre-trial custody.
[70] He also admitted to having been convicted of a number of driving offences, which he said were charges for speeding, driving without a light and making an illegal turn. Only under cross examination did he admit that in 2011 he had also been convicted of driving a motor vehicle registered to him, without insurance, which is a very serious regulatory offence. The disposition therfor was a fine of $3500.00, which he appears to have paid despite the paucity of his financial situation.
[71] The Crown showed him a copy of a lease agreement in respect of an apartment on Victoria Park Avenue in Toronto. He admitted to having signed it in January 2013 for a period of one year commencing in March 2014 and ending in March 2015. Under cross-examination, he was forced to concede, which he did with some indifference, that although he was still bound by the lease agreement relating to the Victoria Park apartment, he had informed the authorities in his application for a work permit that in January 2015, he was residing at an address on Kipling Avenue in Toronto.
[72] In relation to the 1999 offence in Colombia, he testified that he had been charged with "physical assault" and spent 15 days in jail after which "the case was dismissed." This statement defies common sense.
[73] The accused enjoys his constitutional rights to the presumption of innocence and to reasonable bail. Moreover, the jurisprudence is very clear that there are no categories of offences for which bail is not a possibility. See R. v. Blind, 139 C.C.C. (3d) 87 (Sask. C.A.); R. v. Framboise, [2005] O.J. No. 5785 (Ont. C.A.) And bail will be denied only in a narrow set of circumstances. See R. v. Pearson, [1992] 3 S.C.C.
J. THE GROUNDS OF CONCERN
[74] The concerns of the Crown are on the primary and secondary grounds.
[75] Section 515(10)(a) of the Criminal Code is generally referred to as the primary ground. It provides that detention is justified "where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law."
[76] Section 515(10)(b), the secondary ground, provides that detention is justified "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."
K. THE PRIMARY GROUND
[77] With respect to the primary ground, in all the circumstances, does he present a flight risk if released? The accused's entire family lives in Colombia. Ms. Urrea testified that the accused "wants to bring his family here." Yet, he seems to have taken no action whatsoever towards that end despite having lived in Canada as a protected person for some 7 years. This begs the question: did he want his family to remain in Colombia in the hope that he could somehow convince the authorities there that he had never been involved in any criminal activity, other than the one incident of a "physical assault" in 1999 when he served 15 days in jail after which "the case was dismissed?" And now, according to the accused, he has achieved that aim, and his family would be waiting for him in Colombia with open arms.
[78] He testified that he was shot by FARC as a result of some sort of extortion incident. It appears that no other member of his immediate family was involved in any such extortion. The inference which could be made is that he may have been involved in some sort of illegal activity which ultimately culminated in a shooting.
[79] But Mr. Martinez-Mayorga claims that he is not wanted by the police in Colombia, and does not have a criminal record there. He produced documentation which he claims supports that testimony. If that is correct, why would he want to remain in Canada and face these criminal charges, particularly when the Crown seems to have a very strong case against him, when he could simply abscond and return to live with his family in Colombia? In my view, these findings suggest that he is a serious flight risk.
[80] On the other hand, if his intention has always been to clear his name in Colombia so that he could safely return to his family there, why is he going through the entire expensive, protracted process of endeavouring to reinstate his refugee status in Canada?
L. THE SECONDARY GROUND
[81] If I release Mr. Martinez-Mayorga, is there a substantial likelihood that he would commit further criminal offences? In my view, the answer is likely to be 'yes.' However, in R. v. Morales, 17 C.R. (4th) 74 (S.C.C.), Lamer C.J. explained that –
"Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail, but only those who pose a substantial likelihood of committing an offence or interfering with the administration of justice and only where this substantial likelihood endangers the protection or safety of the public."
[82] Until such time that the IRB decides to reverse its decision to revoke the accused's refugee status, I am of the view that the evidence upon which the IRB relied in reaching its conclusion, is trustworthy and reliable. Such a finding, raises the issue of the dangerousness of the accused, if released on bail.
[83] Antecedent criminal behaviour such as that reflected in the accused's criminal record in Colombia, portends a substantial likelihood of a continuation of such behaviour in Canada. Of course, I cannot make such a prediction with any level of certainty. In R. v. Morales (supra) Chief Justice Lamer expressed the difficulty of evaluating the meaning of "substantial likelihood" when he said:
"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."
[84] I am not aware of the accused's having committed any violent offences in Canada, although, according to the police, there is an outstanding warrant for his arrest in Quebec on a charge of "threatening death." Nevertheless, his Colombian Criminal Record speaks for itself with respect to his dangerousness. The protection of the public is the prime consideration under the secondary ground.
[85] In all the circumstances, I do find the accused to be dishonest, unreliable and a person who cannot be trusted to comply with the law or with his conditions of release. In my view, he was deliberately tailoring his evidence to avoid saying anything that could potentially be harmful to him and his application for judicial interim release. I find that the totality of his evidence with respect to his past activity in Canada is not only evasive, circuitous and suspect, but, it appears to have a shaky relationship with the truth.
M. THE ADEQUACY OF THE PLAN OF RELEASE
[86] The plan is that the accused will continue to reside with his common law wife, Yuliana and her two children. He could be ordered to comply with a house arrest condition, with an exception only when in the company of either one of his sureties. According to his wife, he could work with her doing painting and house cleaning. Both sureties are prepared to call the police in the event of a breach.
[87] While the significant impecuniosity of the sureties is not determinative, the reliability and trustworthiness of their testimony is worrisome.
[88] Ms. Urrea testified that she has no idea what type of employment the accused had in Colombia, and that although she had been very close friends with the accused's sister while Ms. Urrea lived in Colombia, she virtually never spoke with the accused there, and that it was only because of her friendship with the accused's sister that she agreed to have him live with her and her then boyfriend when he arrived in Canada in 2006. She testified that about a year after the accused came to live with her, he moved out and into another apartment in the same building.
[89] She went on to testify that after the accused moved out she "did not keep track of him." But then, under cross examination, she said that she actually speaks with him on the phone "every second day or so." The inconsistencies in her testimony are apparent.
[90] In her evidence in chief, she said that she has $4000.00 which she is prepared to pledge as security toward the release of the accused. When the Crown questioned her about where she got that amount of money, she explained that she had had $2000.00 in her banking account, and had saved a further $2000.00 which she kept in her closet at home, and then she deposited that into her banking account. She told the court that she did not know that savings accounts attract interest payments, and preferred to keep those savings in her closet. Really? Here is a woman, who has been in Canada since 2004, is employed, is in the process of returning to school to complete the third of her three-year program in architecture, who claims not to know that banks pay interest. When the Crown suggested to her that she had actually received that extra $2000.00 from someone else for the very purpose of elevating her bank balance for surety purposes, she denied it. Frankly, this testimony strains credibility, and I do not believe it.
[91] Finally, her suggestion that if necessary, she and her son would move into the two bedroom apartment which the accused shares with his wife and her two children is ludicrous.
[92] With respect to the second proposed surety, the credibility of her evidence regarding where she got the further $2000.00 to raise her bank balance and embellish her chances of being accepted a surety leaves much to be desired. Her evidence was that at the commencement of these criminal proceedings, she had $2000.00 in her bank account, which, incidentally, her bank records do not support. This was evident when she was cross examined in this regard.
[93] Then, in regard to the additional $2000.00 which she deposited after the commencement of the bail hearing, she testified that she had lent that money to a friend, who returned it to her; that she then lent that money to her brother, who paid it back to her so that she could deposit it into her bank account. Under cross examination, she denied that anyone had given her that money to enable her to make her pledge to the court as a surety. I find such evidence to be convoluted and untrue.
[94] There is the famous old adage: "Where there is smoke, there is fire." I find that there is a tremendous amount of smoke as well as a precarious amount of fire in this case. I do not accept that these two women are reliable, and that they would adequately supervise the accused so as to reduce the concerns of the Crown and the Court on the primary and secondary grounds to an acceptable level. Ultimately, the evidence of both proposed sureties does not tip the balance in favour of release.
N. DISPOSITION
[95] For all of these reasons, I order that Mr. Martinez-Mayorga be held in pre-trial custody until such time as his charges have been dealt with according to law.
[96] I thank and compliment both the Crown Attorney, Mr. P. Clement and Defence Counsel, Mr. J. Ettiene, for the excellent manner in which they presented their respective cases in this very complex matter.
O. STATEMENT UNDER SECTION 515(13) OF THE CRIMINAL CODE
[97] In making this Order, I have considered the safety and security of every victim revealed in these proceedings.
P. Kowarsky J.P.