Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

J. Battersby, for the Crown

— And —

Andrew Hunt

M. Worsoff, for the accused

Heard: December 10, 11, 2015

FELDMAN J.:

Introduction

[1] At this Show Cause hearing, Andrew Hunt is seeking release on the following charges: Forcible Entry, Carry Concealed Weapon, Possession of a Weapon Dangerous to the Public Peace, Possession of Prohibited Weapon without License, Point Firearm, Use Firearm in a Careless Manner, Assault with a Weapon x 2, Aggravated Assault, Forcible Confinement, Fail to Comply (Recognizance) and Fail to Comply (Probation).

[2] The onus is on the accused to satisfy the court that he should be released on account of his having previously been granted bail in Peel Region on 3 counts of Drive Disqualified and one of Fail to Comply with the terms of that earlier release. The fact he is on probation for a domestic assault that occurred last year is an aggravating circumstance. There is as well a bench warrant for his arrest on a Fail to Appear charge in Brampton.

[3] Mr. Hunt has prior criminal convictions. They include Operation Impaired in 2005, Fail to Comply (Recognizance) and Possession of a Schedule 1 substance in 2006 and an Assault last year.

The Allegations

[4] The allegations are quite serious. They involve the defendant and his cousin, Wilson Hunt, confining and brutalizing the victim, Mehrdad Bahman, in his own home and subjecting him to an egregious assault that resulted in significant injuries to his head and face, including fractures.

[5] In the Crown synopsis Mr. Bahman says that during the evening of October 20, 2015, Wilson Hunt, who lived on the floor above him, came into his apartment, pushed him against the wall and told him he had "fucked up" by texting with Andrew's wife. He said Wilson told him that Andrew wanted to kill him with a shotgun.

[6] It is alleged that in the early morning hours of the next day, Wilson and Andrew knocked on Mr. Bahman's door and entered upon it being opened, with Wilson holding the complainant against the wall and punching him. Mr. Bahman says that Andrew then pulled out a handgun and stuck it in his mouth telling him he'll kill him and accusing him of 'fucking' his wife. It is alleged Andrew then struck the complainant repeatedly on the head and face.

[7] Mr. Bahman told the police that Wilson joined in the assault by striking him about the head with the flat portion of a machete. He said Andrew then pulled out a kitchen knife and stabbed him on the head after which he held the knife to the complainant's throat and stomach threatening to gut him. It is alleged that the accused also head-butted Mr. Bahman during this sequence. When he attempted to hold Andrew's hands, he was cut on his left hand.

[8] Photographs indicate that the complainant suffered a badly swollen and bloody face, including eyes swollen shut, a 6-inch cut on the top of his head and a circular cut on the left side of the head requiring stitches, a cut to the back of his left hand, scratches to his neck, chest and stomach and bruising inside his mouth. Additionally, there were multiple facial fractures. At this stage, the evidence tends to render the allegations trustworthy and credible.

[9] Mr. Bahman said Wilson left the apartment while Andrew was still assaulting him. Andrew is seen on surveillance cameras leaving the apartment building alone at 2:56 a.m.

[10] The knife allegedly used by Andrew was found by police inside the victim's apartment. The machete was discovered outside the building on the grass. The handgun was not recovered.

The Defence Evidence

[11] While unusual, the Applicant testified. He told the court he did not know Mr. Bahman and was not an active participant in the assault. He says he had no weapons with him. He claims not to have seen Wilson cause injury to the complainant. He said he left alone to return to Brampton by taxi in order to work in Shelbourne the next morning. He did not stay with his cousin that night as he had planned to do.

[12] The Applicant explained that on October 20, his wife brought him to Scarborough around 7 p.m. to stay with Wilson for a couple of days. He was permitted by his bail conditions to live either with his wife in Brampton or with his cousin, Wilson, in Scarborough. Contrary to the terms of his release he visited his uncle that evening without his surety before going to Wilson's apartment, not arriving there until 2 a.m. He said in chief that he walked there, later indicating he drove.

[13] Andrew testified that although he had to get up early in the morning to do masonry work he agreed, rather than going sleep, to go with his cousin down one floor at 2:45 a.m. to the complainant's apartment, although he did not ask nor was he told why. Given the hour and the indication of Wilson's earlier threat to the complainant that concerned the Applicant's wife, his evidence of ignorance or indifference stretches credulity.

[14] Mr. Hunt said that upon his entering Mr. Bahman's apartment the complainant stabbed him in his finger for no apparent reason. He said he punched the complainant 2-3 times so he could get away and noted that while his cousin was fighting with Mr. Bahman, Wilson was mostly pushing the complainant off in self-defence. He denies seeing Wilson throw any punches or kicks at the complainant or be in possession of a machete and would not venture a guess as to how Mr. Bahman sustained such serious injuries, a self-serving response in the circumstances. In fact, when he left, he says he saw the complainant without injury sitting at a table in the kitchen. I view his evidence in this regard as improbable.

[15] Although he was bleeding a lot, the Applicant did not go to the hospital nor did he report the incident to the police. Rather, he left on his own and took a taxi home to Brampton to be closer to his work later that morning in Mississauga. This is the behaviour of someone with something to hide.

[16] A few days later he heard his cousin had been arrested but did nothing. Although he had court appearances in Brampton and no lack of work in this jurisdiction, he left for Calgary after a couple of weeks because he says he heard through his wife that the complainant, associated with the Hell's Angels, wanted to kill him. It was likely he understood his arrest was forthcoming.

[17] In testifying, the Applicant leaves open questions of his own credibility and reliability. He was an unimpressive witness. He distanced himself from the middle of the night onslaught that left the complainant brutalized, suggesting, despite evidence he had a motive and was the main perpetrator, that he went to the apartment for no good reason in ignorance, was himself a victim and left in short order, implausibly seeing nothing that might incriminate the only other protagonist. In fact, he claimed to be unsure if he or Wilson left first.

[18] It was telling that Andrew did not sleep that night where he intended, nor did he attend to his injuries or contact the police despite his purported fears then and later. Given the corroborative nature of the photographs, I view his evidence as both self-serving and unworthy of credit.

The Sureties

[19] Andrew's mother lives in Newfoundland. His aunt, Corinna Hunt, who lives in Welland, and with whom the Applicant has a good relationship, considers him like a son. She views Wilson as a 'bad boy' whom she would keep apart from Andrew.

[20] Ms. Hunt is prepared to have Andrew live with her and has offered a substantial surety. She does seasonal work in a fish plant. She says that should Andrew be released she is prepared to stay home in order to monitor him.

[21] I found Ms. Hunt to be a straightforward witness and consider that she would be a reliable surety who would responsibly monitor her nephew.

[22] Delroy Harris is a 55-year old self-employed man who lives in Brampton. Andrew has worked for him since the age of 15. Mr. Harris has acted as a surety for Andrew in the past and also considers him like a son.

[23] He says the Applicant could live with him. He offers a substantial surety.

[24] Mr. Harris has more than one conviction for driving without a license and dated convictions for obstruct justice and personation. He seems to have a flexible view of the law as it applies to him. Although he is somewhat of an apologist for Andrew, I believe he would undertake any surety obligations responsibly.

Positions of the Parties

Position of the Applicant

[25] Mr. Worsoff, for the Applicant, submits that there are defences to the breaches and the substantive offences made apparent in Andrew's testimony. He says the alternative plans of release, both of which would take his client out of Toronto, provide an answer to the secondary ground concerns.

[26] He suggests that with regard to the tertiary ground the case in R. v. St-Cloud, 2015 SCC 27 was stronger and the facts more serious. He submits he has met his reverse onus and that the public would not lose confidence in the administration of justice should this court fashion a stringent release.

Position of the Crown

[27] Ms. Battersby, for the prosecution, submits that the Applicant has not met his onus on any ground. In relation to the primary ground, she says that the following factors, including the Applicant's history of not abiding by court orders, the outstanding Fail to Appear charge, his flight to Alberta and reluctance to return and the fact that upon conviction he is possibly facing a penitentiary term collectively permit the inference that he would be motivated to avoid trial.

[28] While there is merit in this submission, Mr. Hunt has both work and roots in Ontario. It is doubtful he would choose the life of a fugitive. It is my view that should the Applicant reside outside Toronto Region, a substantial surety and monitoring by responsible family members or friends would answer any primary ground concerns.

[29] The Crown also submits that the Applicant has failed to satisfy his onus on the secondary ground. She says that while on bail, as well as on probation for assault, Mr. Hunt was the main perpetrator in a joint and egregious assault of a person he did not know that resulted in serious injuries to the victim and involved the use of a knife and firearm. She says he had motive and demonstrated a capacity for excessive violence. She points out that he fled this jurisdiction purportedly in fear, but not for a couple of weeks after the events. She suggests his own testimony, rife with inconsistency, places him at the scene.

[30] Ms. Battersby submits that the Applicant has displayed open disregard of court orders so that it is unlikely a surety would be able to control him leaving the complainant at risk of harm or subject to interference.

[31] With regard to the tertiary ground, set out in Code s. 515(1)(c), the Crown submits that Mr. Hunt's detention is necessary to maintain public confidence in the administration of justice. She says this was a violent crime that involved use of weapons in which a victim was attacked in his own home and seriously injured by an individual who has shown disregard for prior terms of release. She points to the strength of the prosecution's case and the likelihood of a substantial sentence upon conviction and submits that the Applicant has not met his onus on this separate and distinct ground for detention.

Has the Applicant Met his Onus on the Secondary Ground?

[32] Mr. Hunt must satisfy the court, as set out in s. 515(1)(b), that in all the circumstances, including the proposed plan of release, it is not substantially likely that if released he will commit a criminal offence or interfere with the administration of justice. More particularly, will his release threaten the safety of the complainant or undermine his testimonial compliance?

[33] In relation to this ground, I am persuaded that were the Applicant to live in Welland with his aunt as surety, she would responsibly monitor and control his behaviour. He would not be permitted to leave her home except in the company of his sureties or Ms. Hunt's spouse. He could not to be in the city of Toronto. Any recognizance of release would be substantial. In these circumstances, I am satisfied that the likelihood of re-offence would be less than substantial and the public protected. I am persuaded that the Applicant has met his onus on the secondary ground.

Has the Applicant Met his Onus on the Tertiary Ground?

[34] In St-Cloud, the Supreme Court has made clear that the application of this ground is no longer residual to the other two grounds nor is it limited to exceptional or rare circumstances, the most heinous of crimes or certain classes of crimes.

[35] The focus, as articulated by Wagner J. at paras. 55-68, is on whether detention is necessary to maintain public confidence in the administration of justice in the context of four factors, including the apparent strength of the prosecution's case, taking account of any defence raised; the objective gravity of the offence; circumstances surrounding the commission of the offence, including whether a firearm was used and the extent to which the accused participated in it; and the fact the accused is liable for a potentially lengthy term of imprisonment, which is to be assessed subjectively. This list is not exhaustive.

[36] The 'public', defined at para. 74, may be viewed as reasonable members of the community who are properly informed about the "philosophy of the legislative provisions, Charter values and the actual circumstances of the case".

[37] More specifically, Justice Wagner indicates, at para. 79, that the court is to assume such a person is "undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution". Of relevance, he reminds us, at para. 70, that the release of accused persons is the cardinal rule and detention the exception.

[38] The offence here is serious and involves violence and alleged use of a firearm for intimidation purposes. The injuries are significant and the circumstances for the complainant traumatic. The case, given the Applicant's admissions and in light of the photographic evidence, is reasonably strong. The strength of the case was not significantly diminished by the Applicant's questionable testimonial reliability. At the same time, he has challenged the theory that he was a knowing participant in the crime and its main perpetrator, facts in issue that will be litigated.

[39] Mr. Hunt's application for release is not assisted by his prior antecedents that include disregard of court orders and a recent domestic assault. It did not assist him to have left the jurisdiction. It is aggravating that he is on probation.

[40] Mr. Hunt has employment and family support. He can live outside this jurisdiction and be responsibly monitored. While this is a close case, I am persuaded that a reasonable, informed member of the community would accept that in these circumstances and given the plan of release, any risk to the complainant or public safety would be contained. I am satisfied that on a balancing of all the circumstances set out in St-Cloud it is not necessary in order to maintain public confidence in the administration of justice that Mr. Hunt be detained on the tertiary ground.

Order

[41] Mr. Hunt will be released on a Recognizance in the sum of $50,000 with both Corinna Hunt and Delroy Harris as sureties carrying joint and several liability.

[42] He is to reside with Ms. Hunt at her home in Welland and follow the rules and discipline of her home. He is not to leave that home except in the direct and continuous company of one of his sureties or Ms. Hunt's spouse, Herbert Harrington, who I am advised consents to that responsibility. The exception to this is that he may be at his place of employment with an adult designated by one of his sureties. The designate must have no criminal or youth court record. Both the adult designate and the accused must carry the dated, written designation of the sureties on their persons. At the end of each workday his tools will be left in the control of one of his sureties.

[43] Mr. Hunt may be employed in any area outside the city of Toronto. He is to be driven to and from work by one of his sureties or Ms. Hunt's spouse. He is not to be in the city of Toronto unless travelling directly to, from and while at pre-scheduled court appearances or appointments with counsel.

[44] He is to have no contact directly or indirectly with the complainant. He is to have no contact or communication with his co-accused except in the presence of counsel for the purpose of preparing for trial.

Signed: "Justice L. Feldman"

Released: December 18, 2015