Ontario Court of Justice

Toronto Region

In the matter of Regina v. Devyn Alexander

REASONS FOR JUDGMENT: JUDICIAL INTERIM RELEASE HEARING

Hearing Date: October 16, 2015

Judgment: October 20, 2015

Before: Her Worship Mary A. Ross Hendriks

Counsel:

• Mr. G. Kim, Crown Counsel
• Mr. A. Abbey, Defence Counsel

INTRODUCTION

Background of the Accused

[1] The accused is Devyn Alexander, a 19-year old man. He is a refugee claimant. His father is incarcerated in St. Lucia, and his mother has purported mental health issues, and left him and his brother, Joseph, in Canada and returned to her home country, in 2012. His closest relative in Canada is his aunt, Geraldine Alexander, who is a mother-figure to him.

[2] He is not been enrolled in school, nor does it appear that he is engaged in any type of employment.

[3] Mr. Alexander does not have any outstanding charges, nor is he currently on any form of a release.

His Criminal Record

[4] His criminal record was admitted for the purpose of this show cause hearing. As a youth, he was charged with robbery in 2013. This charge was withdrawn by way of Extra-Judicial Sanctions ("EJS"), a common law peace bond, and conditions of no contact and no weapons.

[5] While still a youth, he was charged with numerous counts of robbery. When his aunt, Geraldine Alexander testified, she thought that he was originally charged with 49 such counts. In 2015, he pleaded guilty to two counts of armed robbery, and three counts of robbery. Because those offences took place while he was under the age of 18, he received a youth sentence of time served, 13.5 months, 9 months of open custody, and two years of probation.

[6] Mr. Alexander was released from custody on July 15, 2015, at the time of this disposition.

THE NEW CHARGES AGAINST THE ACCUSED

[7] The information before the court, sworn on August 27, 2015, sets out the following four counts, which allegedly took place on August 23, 2015, at the City of Toronto: aggravated assault against the complainant, contrary to s. 268(2) of the Criminal Code; robbery, contrary to s. 343 (d) of the Criminal Code; threaten death, contrary to s. 264.1(1) (a) of the Criminal Code; and possession of a knife for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code.

[8] Crown counsel read the allegations against Mr. Alexander into the record, on consent. Below is a summary of those allegations.

[9] According to the synopsis, on August 23, 2015, the complainant attended a different apartment unit in the same building in which he resides, at 2767 Kipling Avenue, Toronto. When he entered unit 106, he planned on retrieving some furniture which he stored there, and purchase some marijuana from the accused. The complainant had purchased marijuana from him on prior occasions.

[10] When he entered unit 106, he found several people in the apartment. He believes that he was swarmed by five people, and told twice to give them his money, or they would kill him. There was a struggle with a firearm, and the complainant believed that the slide was racked, because a bullet fell to the floor.

[11] The complainant struggled, while he was stabbed and hit. He managed to escape the apartment, but was robbed of $300.00 in cash. He went by taxi to Etobicoke General Hospital, and was transferred to Sunnybrook Hospital, because of the stab wound to his liver. He also suffered lacerations to his chest and back. At Sunnybrook, the complainant was placed in intensive care.

[12] The day after the incident, the Toronto Police Service ("TPS") reviewed the video surveillance of 2767 Kipling Avenue, and recognized Mr. Alexander. They showed the complainant still photographs from this video, and he identified Mr. Alexander as being the person who stabbed him in the forearm, twice.

[13] The TPS also received a verbal statement from the leaseholder of apartment unit 106, named Nick. Nick told the TPS that he was inside the unit, but not in the room when the stabbing took place. Nick said that he saw six males, three of whom were unknown to him, and two of them he identified as being "Jojo" and "Sick". Mr. Alexander is known as "Sick." Nick said that Sick did nothing, and then helped the complainant leave the room.

[14] During the course of an Ontario Provincial Police ("OPP") investigation, the warrant for Mr. Alexander's arrest came to light.

[15] Defence counsel advised the court that since the time of Mr. Alexander's arrest, Crown counsel have provided him with a number of disks, that contain several witness statements. Three of these statements are from the complainant, one of them on the day of the incident.

[16] In Nick's statement, he said that Mr. Alexander was not involved, and that "Sick" had helped the victim leave the room. In another statement, another witness, named William, told the TPS that the complainant had come to the apartment to sell marijuana to William. Over the objection of the Crown, I permitted defence counsel to make this statement, based on his review of the witness statements, only to establish his argument that the credibility of the complainant will be at issue at the trial.

THE PROPOSED PLAN OF RELEASE

[17] Defence counsel called three sureties, and I made an exclusion order.

Geraldine Alexander

[18] The first proposed surety was his aunt, Geraldine Alexander. She provided me with her Permanent Resident card as identification. She has no record, is not facing any charges, and is not on any form of release.

[19] Ms. Alexander testified that she is Devyn's aunt. He has been in Canada for three or four years. His mother has returned back home, and his father is in jail at home. She is his only adult relative in Canada.

[20] Ms. Alexander is currently not working, and pledged $3000.00 to the court to secure his release.

[21] While the plan is that he would reside with one of his other sureties, she testified that he could live with her if needed. She does not have any weapons in her home, and she said she would keep him away from the "others" including his brother, who is also implicated in this incident.

[22] She said that he has lived with her in the past, and that she has taken him to Probation. She has taken him in during the past, because his mother had mental health issues and "up and left" in 2012, taking along all of his identification. His mother did not fulfill her obligations to have him registered in school. As a result, he has been out of school since 2012. She said that with her assistance, he finally obtained his identification in 2014. However, there is no indication from the evidence before me that he has since enrolled in school.

[23] Ms. Alexander was quite passionate about her repeated efforts to implore him to straighten up his life. He has one child in Toronto, a two-year old daughter named Amelia. She told him that now that he has a daughter, he needs to move in a better direction. She said that as well as imploring him to improve, she prays for him, preaches to him, visits him when he is in jail, and takes his daughter to see him. She described herself as pushing him, and "not quick to bail him" when he falters.

[24] She has four children of her own, and Mr. Alexander's mother, who is her sister, also has three children, so she said that she has seven boys to look after, ages 10 to 23 years. Currently, she lives with her two youngest sons, aged 10 and 12.

[25] She testified that she has stood by him after he was charged with 49 robberies, that were brought down to four counts. After he went to jail, she once again told him to change. Whenever she implores him, she said he replies, "yes, Auntie." She testified that, "I want to help him out, but keep my sanity."

[26] Currently, she said that she is a stay-at-home mom. However, she is starting a printing business, and also plans to make and sell jewellery. Her plan is to have a booth at Scarborough's Malvern Mall, since she lives at Morningside and Finch. She has already begun her business, and needs to register it. She wants to rent space for the booth, and plans to open this booth in the mall in January, 2016. Her goal is to hire her family members to work for her. The plan is that the booth would encompass both the printing and jewellery aspects of her business.

[27] When asked during cross-examination if her business will take up most of her time, she replied that her youngest children will be at school or in after-school activities, and that she would be home by 6 or 7 pm. She was unsure what time she would leave for work in the morning, but said that she expects she would start at 10 am.

[28] She was very uncertain if her business would continue to run from the home, or if she would end up working at the mall, when it becomes more successful. She could not say with any certainty what time she would be home at night, notwithstanding her testimony noted above in paragraph 27, except that she was certain she would be home by 10 pm.

Cecil Leriche

[29] Mr. Alexander's friend, Mr. Cecil Leriche, also testified that he was willing to be a surety for him.

[30] He said that he heard from Mr. Alexander a few days ago that he had been charged with robbery, and that he needs his help.

[31] When asked if he felt uncomfortable helping him, knowing that someone was stabbed during the robbery, he said that he felt good helping him, and was not uncomfortable, because they are friends.

[32] The plan is that if Mr. Alexander is released, he would live with Mr. Leriche. Mr. Leriche lives with two other female friends in Toronto, and said that none of them had a record. None of his roommates attended this bail hearing.

[33] Mr. Leriche makes approximately $4000 per month, and is willing to pledge $5000 as a surety. He works from 8 am to 5:30 pm, and leaves home for work at 6:45 am. He said that he returns home at 6:10 pm. Since he is at work for 11 or 12 hours per day, he would expect that Geraldine Alexander would watch over him.

[34] He testified that he does not have any alcohol or marijuana at his residence, since he has a daughter at home, who is five years old.

[35] The plan is to have Mr. Alexander live in the basement, which does not have a separate entrance, and not permit him to have a cell phone. He said that if he needs to call his child's mother or aunt, he could borrow his cell phone to do so. He also said he is prepared to install a landline telephone.

[36] He understands what house arrest means, and said that he would not allow certain people entry into the home, including Mr. Alexander's brother, "Jojo." He also knows William, but not Nick, and would not let them in, either.

[37] In terms of the house arrest, however, Mr. Alexander would not go with him to his work, but would be left alone in the house all day. He envisions the other sureties supervising him until he returns home from work. He is willing to bring Mr. Alexander to court for his appearances.

[38] Mr. Leriche seemed quite positive about Ms. Alexander as a surety, but hesitant about Lisa Arundell being named as a surety.

[39] Although he purports to be a good friend, and says that they have about five other mutual friends, he does not know what Mr. Alexander does for a living. He also did not know that Mr. Alexander had a criminal record for several robberies, or that he had been on EJS prior to that time.

[40] During Mr. Leriche's cross-examination, he was asked if he had ever been charged or arrested. He replied that when he first came to Canada in 2008, he was accused of money-laundering, but that he was not arrested. He said that he appeared in court and that the charged was dismissed the same day. The whole matter was resolved in one court appearance.

[41] When he was repeatedly asked if he had ever been charged with possession of marijuana in October, 2015, he denied it. He was specifically asked if late on October 2, or early on October 3, 2015, "two Fridays ago", if he had been arrested or stopped by the police, for possession of marijuana? He said that he was stopped for "speeding" in the Jane and Wilson area.

[42] He denied that he was ever charged with possession of marijuana, or that they even discussed it with him. Crown counsel cautioned him about perjury and explained that lying under oath is an offence. Even after this advisement, he insisted that he had never had such a conversation on or about October 2, 2015.

Lisa Arundell

[43] Ms. Lisa Arundell also testified that she was willing to act as a surety for Mr. Alexander, and could pledge $1000. She is 21 years old, and she has known them since they both lived in St. Lucia, and she is currently in a relationship with his brother, Kevin Alexander.

[44] Ms. Arundell testified that for the last year, she has worked full-time at a position at The East Mall, in Etobicoke, on two different shifts. While she normally works from 11 pm until 7 am, sometimes she also works from 3 pm to 11 pm.

[45] Her plan, if approved as a surety, is to watch over Devyn Alexander at either his house or the other surety's house, so that Cecil Leriche could go to work. She said that she would take the bus and stay at Mr. Leriche's residence until he returned, which is approximately 5 pm. When he returns, she said that she would then head to work.

[46] When she was asked if Kevin Alexander had a criminal record, at first, she shrugged and said, "I don't know." However, when pressed during cross-examination, she admitted that , "I only know about one charge." When asked if that meant she was lying in her testimony, she replied, "okay, if you say so." When pressed further, she finally admitted she was lying about whether or not she knew that her boyfriend has a criminal record.

Crown Asks to Call Officer-in-Charge Who Has Had Dealings with Cecil Leriche

[47] After defence counsel was finished calling his proposed sureties, Crown counsel asked if he could call the Officer-in-Charge ("OIC"), who has had dealings with Cecil Leriche. Defence counsel objected, and argued that it would offend the collateral fact rule. I ruled against the objection, and held that the collateral fact rule was not engaged. Crown counsel was within his purview in seeking to impeach the proposed surety's credibility, particularly since he had repeated the questions and cautioned him.

Detective Constable Juan Carlos Valencia

[48] Detective Constable Valencia, testified that he works for the TPS, in 31 Division, and that he has been an officer for 7 years.

[49] On consent of defence counsel, and after reviewing his notes, Detective Constable Valencia sought and obtained permission to use his handwritten notes to refresh his memory.

[50] On October 2, 2015, he conducted a vehicle stop at 40 Beverly Hills Drive, and had an interaction with Cecil Leriche as a result.

[51] While driving southbound, in an unmarked car, on Jane Street at Chalkfarm Drive, on October 2, 2015, at approximately 11:50 pm, a vehicle caught his attention, because the validation sticker on the licence plate was a temporary one. Detective Constable Valencia ran the licence plate through dispatch, and was advised that it was unattached to a vehicle.

[52] He proceeded to follow this vehicle and asked the TPS for a marked police car to assist him. He followed the vehicle, without losing sight of it, into a parking lot at 40 Beverly Hills Drive, Toronto, which belonged to a night club. He angled his unmarked car, and flashed his lights on the interior of the vehicle.

[53] He observed the driver roll down the driver's window and extend his hand outside of the window to discard something. He said that it looked like a butt of a rolled cigarette. When he picked it up, it was still warm, and smelled of marijuana. He had his flash light out, and advised the driver to stop because of the issue with the validation sticker. When the driver rolled down the window, Detective Constable Valencia could smell the fresh smell of burned marijuana. He also observed that the driver's eyes were very red and bloodshot.

[54] The driver provided the officer with two Ontario driver's licences, both in his name, and bearing his photo likeness. They were of Cecil Leriche, with identical dates of birth, and different addresses. The officer was satisfied with the validity of the identification. He took copies of both Ontario driver's licences and put them in his notes, which he showed to me at this hearing. The photographs bear Mr. Leriche's likeness. He also pointed out Mr. Leriche in court at this bail hearing.

[55] Detective Constable Valencia also advised him of the charge of possession of marijuana, and arrested both Mr. Leriche and his passenger for this offence. During the course of this arrest, Mr. Leriche was also found to be in possession of a small quantity of marijuana in a "dime baggie", decorated with Playboy bunnies, which was inside of his vest pocket.

[56] Mr. Leriche was advised of his rights, and cautioned by the officer. Detective Constable Valencia was satisfied that Mr. Leriche understood the charge. He issued him a Form 9, Promise to Appear in Court, and read it to him. It indicates that he has been charged with "Possession of Schedule II controlled substance, CDSA, s. 4(1)." He must return to Old City Hall on November 23, 2015 at 9 am in 114 court. Both the officer the Mr. Leriche signed this Form 9 (Exhibit 1). The commissioned affidavit of service of the Form 9 was also shown to the court (Exhibit 2).

FINAL SUBMISSIONS

Crown Counsel's Submissions

[57] Crown counsel respectfully submitted that he had met the onus to detain on both the secondary and tertiary grounds.

[58] He described the plan of release as completely inadequate, given his serious and troubling record of robberies and armed robberies. He argued that the Crown has a strong case, with the evidence indicating that the accused visited the premises to purchase marijuana, and was identified by the complainant as the person who had the knife, and was also a party to whomever possessed the firearm. The charges before the court are similar to his criminal record, and there is more than a substantial risk that he will re-offend if released.

[59] While his aunt is well-meaning, she has been unable to stop him from committing more crimes, and was a surety for her own son, who was found guilty of breaching his recognizance while under her supervision.

[60] Mr. Leriche was described by Crown counsel as "completely unsuitable", particularly since he lied while under oath about whether he had ever been charged or arrested, or even had a discussion with an officer, regarding possession of marijuana. As a result, Crown counsel urged me not to trust anything he said with respect to his willingness to supervise the accused.

[61] Ms. Arundell also lied during her testimony, and admitted to it. In his submission, the court cannot trust her to fulfill her role as surety, either.

[62] In terms of the tertiary ground, he submitted that a reasonable member of the public would be shocked and appalled if he were to be released under such a weak plan of supervision.

Defence Counsel's Submissions

[63] Defence counsel argued that the robbery occurred at a place in which the accused does not reside. While the accused has a serious youth record, the court should discount it because it is a youth record. He asked me to also consider the accused's very difficult family circumstances, and the fact that he could live with his aunt in Scarborough, who is like a parent to him, far away from Keele and Eglinton area, where he has been living.

[64] He urged me to step away from the unrelated issues of a potential surety, Mr. Leriche, and focus on whether or not Mr. Alexander is manageable with his aunt as his surety. He has not breached any bails that she has signed for him in the past, and she can offer him a residential surety. She knows him well and has chastised him when he engages in criminal behaviour. She has taken him to his probation officer in the past. Defence counsel submits that the real issue is whether or not he would breach his bail, if it were granted, knowing that he is an adult now, and may be facing penitentiary time if convicted. He has spent 40 days at the Toronto South Detention Centre since he was charged, which is undergoing regular periods of lockdown, and asked me to consider this context, saying, "is the only resort to leave him there?" He added that his aunt testified that when she opens a booth at the Malvern Mall, he could work for her there.

[65] Finally, he argued that the credibility of the complainant will be a serious triable issue, since there is another witness, who will testify that he knows Mr. Alexander, and that Mr. Alexander assisted the complainant in leaving the apartment and escape further injury. He finds it implausible that anyone would stab someone, and then help them escape. There is a risk that Mr. Alexander may end up in custody longer than any sentence would have been, if convicted.

[66] In terms of the tertiary ground, defence counsel argued that he is not facing a firearm charge, and that none of the allegations fall at the highest level of gravity. He was clearly not the mastermind of any robbery, and even at its highest, appears to have been a swarming while he was in the apartment. He does not have an adult record. While a gun was involved in the robbery, allegedly, it was not fired, nor were any guns or ammunition recovered by the TPS.

[67] Defence counsel submits that a reasonable person would not lose confidence in the administration of justice if Mr. Alexander's aunt were named as his surety. He asked me to consider Mr. Justice Trotter's recent bail decision in R. v. Dang, 2015 ONSC 4254, and another decision, which he referred to as "Healy" from about 2010, and described it as also being a bail review decision. In Dang, on bail review, the determination to release was upheld, but an electronic ankle bracelet was added as a condition. He submits that the court should look at what has been offered to it as a plan, and then fashion something workable from it. Similarly, in the other matter, on bail review, the judge fashioned a different plan of release than what was originally proposed. Subsequent to hearing final submissions, based on research, I believe that the other decision that counsel referred me to is R. v. JT, 2011 ONSC 54, by Madame Justice Healey. In that matter, Madame Justice Healey, in a bail review hearing, rejected the release plan as proposed on the secondary ground finding that it failed to address the substantial risk of the applicant committing another offence if released. She did, however, set a plan of release that she was prepared to approve, noting at paragraph 41, that the proposed sureties were under no obligation to sign it.

[68] He urged me to order a strict bail, under the supervision of his aunt, and in the east end of the city, stressing that detention should be the last resort.

Reply

[69] Crown counsel replied that the witness who believes that the accused assisted with the escape of the complainant was not in the room when he was stabbed, and so his evidence is not going to be determinative at trial.

[70] Finally, the test on the secondary ground is whether there is a substantial risk, and moving the accused to the east end of the city does not negate that risk.

ANALYSIS

The Right to Bail

[71] The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982, c.11, which came into force on April 17, 1982 (the "Charter"), provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, as per section 11(d); and not to be denied reasonable bail without just cause, as per section 11(e).

[72] Moreover, in R. v. Pearson, [1982] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections 11(d) and 11(e) of the Charter are "parallel rights". More recently, the Ontario Court of Appeal held in R. v. A.A.C., 2015 ONCA 483, at paragraph 41 as follows:

All accused, including those charged with serious crimes are constitutionally entitled under s.11(e) of the Charter of Rights and Freedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule and detention is the exception. A claim for detention of an accused under s.515(10(c) must be approached in this context.

Grounds for Detention

[73] Section 515(10) of the Criminal Code provides that detention is only justified when one or more of three separate grounds have been established. Crown counsel is seeking Mr. Alexander's detention on the secondary and tertiary grounds, which are set out under subsections 515(10)(b) and (c) of the Criminal Code.

[74] Crown counsel did not rely upon the primary ground, and I cut off defence counsel when he sought to address it in his final submissions, since I found it was not relevant at this hearing. For the sake of the record only, I made that determination since the accused has lived in Canada since he was a young child, and has ties in this community, because of his young daughter and his aunt, even though he is a refugee claimant.

Secondary Ground

Mr. Alexander was Present at this Violent Robbery

[75] It is clear from all of the evidence that I have heard at this bail hearing that Mr. Alexander was present in the apartment, when the complainant was robbed and stabbed. The stab wound to his liver caused him to be transferred from Etobicoke General, which he attended by taxi, to Sunnybrook Hospital, where he was treated in the Intensive Care Unit ("ICU"). The complainant only came to the attention of the TPS when one of the hospitals alerted them to the state of his injuries. It is odd that someone who has been robbed and suffered grave stab wounds would not seek an ambulance or contact the police himself, and defence counsel has repeatedly stated that the complainant's own credibility will be an issue at the trial. Nevertheless, the complainant has advised police that Mr. Alexander stabbed him in the forearm. The complainant has also advised police that there was a tussle over a firearm, and that a bullet dropped to the apartment floor as a result of this struggle. The surveillance footage for this apartment put Mr. Alexander there at the relevant time, and the key witness for the defence will testify at the trial that he knows Mr. Alexander, and that he was in the apartment unit, and assisted the complainant in his escape. However, this key defence witness was in a different room in the apartment at the time of the stabbings. Thus, I expect that both the complainant and the key defence witness will have credibility issues at the trial. For the purpose of this bail hearing, defence counsel and Crown counsel are really only at odds about whether or not someone who was at the very least a party to a robbery at knife-point and at gun-point would then assist the victim in making his escape, in order to save his life.

Mr. Alexander Has a Serious Youth Record for Similar Offences

[76] Mr. Alexander has been convicted of two armed robberies, and three robberies, as a youth, and a prior charge of robbery was withdrawn, upon his successful completion of EJS. He has recently served 13.5 months in custody, after he pleaded guilty to those charges, and had only been released from custody for about 6 weeks, when he was charged with respect to these allegations.

There is No Significant Plan of Release

[77] Given that I find, for the purpose of this bail hearing, that Mr. Alexander was at the very least, present at this violent robbery, if not actually involved in the stabbing incidents, and that he has a recent youth record for similar offences, so a significant plan of release is needed.

[78] Despite defence counsel's able efforts, once the credibility of two of the three proposed sureties was damaged because they lied under oath about their knowledge of criminal charges and convictions of themselves or others, there was no discernable plan before me that could fashion a secure house arrest. While deception may not amount to automatic grounds for disqualification as a surety, see: R. v. Gessic, 2014 ONSC 7438 and R. v. Sotomayor, 2014 ONSC 500; to be clear, I was not impressed with either of these two sureties, neither of whom possesses a particularly strong relationship with Mr. Alexander. They appear unaware of whether or not he works, the fact that he has a criminal record, and they were each vague about the details of how they would assist the other sureties in his supervision. I was left with the clear sense that each of them would be unsuitable sureties if named. Moreover, both Mr. Leriche and Ms. Arundell live in other parts of Toronto, far from Ms. Alexander, who resides in Scarborough. Ms. Arundell works two different shifts at The East Mall in Etobicoke, and would have to travel to Scarborough by TTC to assist Ms. Alexander. I anticipate there would be frequent gaps in his supervision even if I were prepared to name all three of them.

[79] Defence counsel urged me to craft a different plan, and rely entirely on Mr. Alexander's aunt, with whom he can reside in Scarborough.

[80] While his aunt has done her utmost to be a parent-figure to Mr. Alexander, it was clear throughout her testimony that she has not succeeded in controlling him. She has chastised him repeatedly, and I accept her testimony that she is not quick to bail him out when he is re-arrested. She has tried prayer, tough love, guilt that he needs to try harder to take care of his 2-year old daughter, and repeated admonishment to stay away from troubled friends, to no avail. At one point during her testimony, she admitted that while she wants to help him out, she needs to maintain her own sanity. Given the number of times she has visited him in jail, taken him to probation, and bailed him out, I understand that sentiment completely.

[81] This is a Crown onus bail hearing, and it is incumbent on the Crown to show, on a balance of probabilities, why his detention is necessary on the secondary ground.

Recent Jurisprudence

[82] Defence counsel referred to Mr. Justice Trotter's recent decision, on bail review, in R. v. Dang, 2015 ONSC 4254. In that decision, he upheld a release granted on the secondary ground and on the tertiary ground, that involved three sureties, a substantial pledge, and added the electronic monitoring of the accused, even in a matter of shocking violence, where there were weaknesses with the Crown's evidence. The matter before me is easily distinguishable from that decision, since there is no significant plan of release for Mr. Alexander.

[83] Defence counsel referred to another decision, as well, from about 2010, which I believe was R. v. JT, 2011 ONSC 54, by Madame Justice Healey. However, in that matter, Her Honour fashioned a different plan than the one proposed. In this case, I only have one reasonable surety left, and I have found that she cannot control him.

[84] Given the totality of the issues, and the weaknesses of the plan as proposed, I find that the Crown has more than met its onus on the secondary ground. I find that there is a substantial risk to the safety of the complainant in this matter, as well as the protection of the public, if Mr. Alexander were to be released on this plan or any plan where all the responsibility rests on his aunt alone.

Tertiary Grounds

[85] In R. v. St. Cloud, 2015 SCC 27, the Supreme Court of Canada expanded its interpretation of the tertiary ground. Four key considerations emerge from St. Cloud, which are addressed below, see: R. v. A.A.C., paragraphs 46-52.

[86] First, the tertiary ground is not to be applied sparingly or interpreted narrowly. It is not limited to exceptional circumstances, to unexplainable cases, to the most heinous of crimes, or to certain classes of crimes.

[87] Secondly, the Crown may rely upon the tertiary ground to seek detention for any type of crime, except subsection 515(6) of the Criminal Code, so long as the Crown proves that detention is justified to maintain the confidence in the administration of justice. In other words, even if detention would only be justified on the tertiary ground alone, that reasoning is not a proper consideration.

[88] Thirdly, each of the four factors enumerated under the tertiary ground and their combined effect are to be considered, along with all other relevant circumstances.

[89] Finally, even when all four factors are present, detention is not automatic. The court must conduct an inquiry that balances the listed factors, together with any other relevant factors, to determine whether detention of the accused is necessary to achieve the purpose of maintaining confidence in the administration of justice. See: paragraphs 55 and 69 of St. Cloud.

[90] In R. v. Brahaney, 2015 ONSC 5877, [2015] O.J. No. 4894, Madame Justice Warkentin found at paragraph 29 that, "...these are offences that approach the extreme end of the criminal law spectrum in that they possess all of the following factors: serious injury to the complainants; the presence of weapons and violence; likelihood upon conviction of a substantial jail term; and the Crown's case is strong."

[91] Subsection 515(10)(c) of the Criminal Code provides for four enumerated factors for detention. I will deal with each of these factors below in order.

[92] First, the Crown has a strong case against Mr. Alexander. The complainant identified him as being one of his attackers. The allegations made by the complainant are corroborated by the video surveillance of the building, which puts Mr. Alexander in the location, and by his defence witness, who puts him in the apartment at the time of the robbery, albeit in a heroic role. No matter how I look at this case, Mr. Alexander was in the apartment at the time of the robbery, and so he was at least, a party to it, if not a violent participant.

[93] In terms of the gravity of the offence, St. Cloud directs the court to consider this factor objectively. The matter before me is serious, and of a violent nature. The complainant was seriously wounded, and robbed of $300.

[94] The circumstances of this case are violent, and involve a fight and the use of a knife or knives, as well as a tussle over control of a firearm. The firearm and ammunition were not recovered, however. The complainant was stabbed, and had to be transferred to the ICU department of Sunnybrook Hospital, because of the lacerations to his liver.

[95] If the accused is convicted, given his related youth record, he could be facing a sentence of several years in custody.

[96] As Mr. Justice Trotter noted in Dang, at paragraph 58:

An accused person's release plan may be relevant to whether public confidence in the administration of justice is capable of being maintained: see R. v. B.(A.), 204 C.C.C. (3d) 490. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c.1) to s.29(2)(c) of the YCJA. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put into place to monitor the accused. The plan goes to the core of s.515(10)(b), but it may also impact on the application of s.515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s.515(10(c).

[97] Given that the recent expansion of the application of the tertiary ground, I find that a reasonable person, properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of this case, who was advised of the plan of release, would lose confidence in the administration of justice, if I were to release Mr. Alexander.

ORDER

[98] For the above-noted reasons, Mr. Alexander is detained on the secondary and tertiary grounds.

Dated at Toronto, the 20th day of October, 2015.

Mary A. Ross Hendriks, J.P.