Court File and Parties

Court File No.: 18-9810

Ontario Court of Justice

Her Majesty the Queen

v.

Marcus Gil

Decision on Bail

Before: The Honourable Mr. Justice R. Wadden

Date: April 26th, 2018, at Ottawa, Ontario

Appearances

J. Daller – Counsel for the Crown

N. Calvinho – Counsel for the Accused

Decision

WADDEN J. (orally):

Mr. Marcus Gil is facing very serious charges. He was arrested in January of 2017 on charges of kidnapping, forcible confinement, robbery, break and enter, robbery with a firearm, more counts of forcible confinement, robbery, possession of a firearm, pointing a firearm, possession of a firearm, and breach of a prohibition order. He was released on bail on virtual house arrest with two sureties and GPS monitoring in April of 2017.

Today, he is facing new charges of having, while on release, attempted to obstruct justice and three counts of breaching his release conditions. He has been in jail on the new charges since February of 2018. This is a bail hearing brought by Mr. Gil and, simultaneously, a s. 524(8) hearing application brought by the Crown. As Mr. Gil is alleged to have committed the recent offences while on bail, it is a reverse onus; in other words, Mr. Gil must show cause why he ought to be released.

The Crown opposes release on the tertiary and secondary grounds and seeks to have Mr. Gil's prior release cancelled.

As I have said, the charges, especially the January 2017 charges, are serious. The allegations are that, on the 10th of January of 2017, Mr. Gil and another man forcibly entered an apartment in which there were three occupants. The allegation is that Mr. Gil was carrying a firearm which later turned out to be a loaded firearm, based on the testimony of other witnesses. It is described as a .357 magnum revolver. Mr. Gil and his accomplice began beating the occupants of the apartment, including two females, and a drug-addicted senior citizen. The two accomplices demanded thousands of dollars from Mr. Feorster, the drug addict, demanded that he provide them $20,000 under threat of harm to himself and to his own mother and to the occupants in the apartment.

The allegations are that Mr. Feorster was forcibly taken to the bank to withdraw money, where he withdrew thousands of dollars but not enough to satisfy his assailants. Meanwhile, according to the allegations, Mr. Gil and his accomplice remained in the apartment holding the two women hostage. They inflicted repeated and gratuitous violence on the women and Mr. Feorster, including beating, pistol whipping, and stabbing. It is alleged at one point that the accused and the accomplice took the bullets out of the .357 revolver, put them on the bed, put one bullet in the barrel, and played Russian roulette with one of the females; Ms. Souliere. It is alleged that the gun was pointed at her head and the trigger pulled more than once. It is alleged as well that, shortly before he turned himself in on these charges, Mr. Gil had tried to persuade one of the witnesses, Ms. Souliere, to change her testimony to indicate that Mr. Gil was not in the apartment.

Mr. Gil was arrested on those charges after he turned himself in in January of 2017. He remained in custody until April of 2017, at which time he was released.

The conditions of release included having two sureties sign on his behalf, which are his grandparents, Albert and Jill Gil; a requirement that he remain in his residence at all times, unless in the presence of his sureties or for a medical emergency; a requirement not to contact or communicate in any way with Alfred Feorster or the other witnesses or be within 100 metres of any place where he knew any of those people to be; he was also under condition not to possess or consume any unlawful drugs or substances under the C.D.S.A.; and he was under a condition of electronic monitoring with, I presume, an ankle bracelet.

The more recent charges before me arise, according to the Information, from February of this year, although the facts show that the offences actually go back to the fall of 2017. The allegations are that, while under this strict release, after he had been released in April of 2017, that in the months of September, 2017, to November of 2017, that Mr. Gil met several times with the witness Alfred Feorster. Mr. Feorster apparently contacted Mr. Gil indirectly through someone else for the purpose of buying crack cocaine from him. Mr. Feorster provided a statement that, on approximately 12 occasions, he met with Mr. Gil on the property of his apartment building, that is, Mr. Gil's apartment building, at 270 Somerset Street, and that on those occasions Mr. Feorster would buy crack cocaine in 40-dollar amounts from Mr. Gil. Mr. Feorster told the police that on three of those occasions Mr. Gil tried to convince Mr. Feorster to leave the city and not be available to be subpoenaed for the preliminary inquiry or, presumably, the trial, telling him that if he did so Mr. Feorster might do some short time in jail but that Mr. Gil himself recognized he was facing a long term in jail if convicted.

The charges that were laid in relation to those facts include an allegation, contrary to s. 139 of the Code, of attempting to obstruct justice and three counts of breach of recognizance, being to remain in the residence at all times, to not communicate with Mr. Feorster, and not to possess any drugs.

Although no drug trafficking charge was laid, it appears, on the facts that are before me, that the facts show that Mr. Gil was trafficking in crack cocaine while on release and he was doing so under the nose of his sureties, his grandparents, while they slept. He is alleged to have committed the offences at night. Doing so would have put him out past his curfew, but, as he remained on the property of his grandparents' apartment building, he appears not to have been triggering the GPS alarm that was attached to him. Evidence heard at this bail hearing substantiated that all parties, including the sureties, acknowledge that the GPS monitoring that had been in place was inadequate.

Having reviewed the evidence that has been put before me, I find that there is sufficient evidence that the accused has contravened his recognizance and that there are reasonable grounds to believe that the accused has committed an indictable offence after having been released on the previous charges. Therefore, I find that the requirements of s. 524(8) of the Code have been made out, and the Crown's application to have the previous release cancelled is granted.

In considering the application for bail by Mr. Gil, I find that, for reasons I am going to give in detail, that Mr. Gil has not met the onus on him to show that he should be released on the charges that are before me.

Mr. Gil is 19 years old. He has a youth record that includes convictions for armed robbery, assault, possession of a weapon, and four counts of fail to comply with court orders. He has convictions in the years 2014, 2015, and 2016. The home invasion charges are from January of 2017. Mr. Gil has been in jail or on house arrest since January of 2017.

Tertiary Ground Analysis

I consider first the tertiary grounds. Section 515(10) of the Criminal Code sets out the potential grounds for detention on a bail application. Each ground, according to the Supreme Court decision R. v. St-Cloud is independent of the other, and the order that they are laid out in the Code does not dictate the order in which they may be considered by the court.

The tertiary ground, under s. 515(10)(c) states that detention may be justified:

if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

i. the apparent strength of the prosecution's case,

ii. the gravity of the offence,

iii. the circumstances surrounding the commission of the offence, including whether a firearm was used, and

iv. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Considering the January 2017 charges, all of the criteria of the tertiary ground are met.

Recognizing that there are always triable issues in a case, it appears that the Crown's case, in this situation, is strong. On the evidence before me, it appears that the accused was positively identified in photo line-ups by the three victims. The accused was known, to at least some degree, by those present, and identified in part by name. The evidence of his comments in trying to dissuade the evidence of Ms. Souliere before his initial arrest is corroborative after-the-fact conduct. The contact with Mr. Feorster in the fall of 2017 is corroborative of evidence of identity. The evidence on those charges has been tested at the preliminary inquiry, and the accused was committed to trial. All three witnesses testified, and their sworn testimony and cross-examination is available for the Crown.

The gravity of the offence and the circumstances surrounding its commission are at the extreme end. This was an utterly terrifying home invasion and robbery. The victims were two women and a drug-addicted senior citizen who they tried to rob of his life's savings. The robbers were armed by a loaded firearm. Mr. Gil was identified as carrying the gun into the residence. Gratuitous violence was inflicted on the victims, including stabbing and pistol whipping. The women were then terrorized by being subjected to Russian roulette. The attack was clearly planned and targeted against Mr. Feorster, who had access to a lot of money. The attack was protracted, and the women held hostage while Mr. Feorster was sent to the bank. The robbery netted thousands of dollars.

If convicted, Mr. Gil would be facing a lengthy term of imprisonment. The evidence alleges that Mr. Gil was at the forefront of the use of the loaded gun and conducting and encouraging the violent beatings. Even if his personal role is mitigated somewhat, his continued presence for the duration of these offences would implicate him as a full party to the crimes. The mandatory minimum sentence for use of a firearm in the commission of a robbery is four years' jail. That does not even address the counts of kidnapping, forcible confinement, aggravated assault, and pointing a firearm in the context of terrorizing the women.

Taking into account all of the aggravating factors, if proven, Mr. Gil could be facing a penitentiary sentence of 10 years or more. This case falls within those contemplated by Mr. Justice Wagner in the Supreme Court decision in R. v. St-Cloud, in which he stated, at paragraph 88: "if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered."

Even in light of this dictum by the Supreme Court, Mr. Gil was released in April, 2017, on a recognizance that was as strict as could be imagined. On the ladder of release as set out in s. 515 of the Code and the decision of the Supreme Court in R. v. Antic, this release was at the very high end.

Although the new allegations before me are not as serious as the January 2017 charges and have the most impact on the secondary grounds, they play some role in the tertiary ground consideration. The case on the new charges is reasonably strong. Although I recognize it relies on a vulnerable, drug-addicted witness, it is based on a statement provided by that witness that he voluntarily came forward with. The allegations of an attempt to interfere with a justice system participant constitute a serious offence that would warrant further jail. In considering the overall reach of the tertiary ground, I have to ask if the public confidence in the administration of justice would be maintained if I re-released Mr. Gil, who, having been charged with and released on such serious charges, allegedly breached his release repeatedly by breaking curfew, dealing drugs, and interfering with a witness, all while under the direct supervision of his sureties. On the evidence before me, Mr. Gil had a chance at release and failed. He not only disregarded his court orders, but committed an offence that strikes to the heart of the administration of justice. In my view, this is a case in which detention is overwhelmingly justified on the tertiary grounds.

Secondary Ground Analysis

Turning to the secondary grounds, even if detention were not justified on the tertiary grounds, it would be justified solely on the secondary grounds. The concern with the secondary grounds is the likelihood that the accused will commit a criminal offence or interfere with the administration of justice. The new allegations bring Mr. Gil four square within these categories.

According to the new allegations, he had been dealing drugs while on release. Involvement in the drug world raises the real spectre of violence, especially for someone such as Mr. Gil, charged with violence against a drug addict and who has offences of armed robbery and assault on his record.

More significantly, Mr. Gil is accused of directly trying to interfere with the administration of justice by influencing a witness. There are accusations he previously did this in January of 2017, before he turned himself in. In addition, Mr. Gil faces three charges now of breach of recognizance. It is of note that he has a criminal record for breaching court orders. If Mr. Gil would not abide by the conditions he had been released under, what conditions would he abide by?

I could not impose conditions that are, practically speaking, any more strict than were previously imposed. Mr. Gil was supposedly under house arrest, supervision of sureties, and electronic monitoring, yet that did not deter him from breaching his conditions. Mr. Gil presents a real risk of re-offending, which makes him a real risk under the secondary ground. I can only think that the motivation to interfere with the administration of justice would become more acute as the trial on such a strong case on such serious charges approaches. I therefore find that detention is also justified on the secondary grounds.

Release Plan Analysis

A plan of release has been proposed, but no plan would satisfy this Court's concern on the tertiary and secondary grounds. No matter how good a plan is, no matter how many sureties are provided or how much electronic supervision is proposed, a release depends, first and foremost, on the pledge of the accused to abide by conditions. On the evidence before me, Mr. Gil found ways to get around even the most strict of release conditions and virtually the tightest supervision a court could impose. Mr. Gil's criminal record and the new allegations reveal a disregard for court orders and a willingness to commit offences while under supervision. Mr. Gil has demonstrated that he cannot be trusted to be released and no matter how close the supervision he is under, the risk to the public and the public's confidence in the administration of justice require his detention.

Even though my finding is that there is no plan that would allow for the release of Mr. Gil, I must comment on the plan that was put forward. It is virtually the same plan that Mr. Gil had been released on with some changes that are not, in my view, significant. The same sureties, the grandparents, Mr. and Mrs. Gil, are proposed, with the same living arrangement. In spite of their best intentions, they were not adequate supervisors of Mr. Gil on the last release. Young Mr. Gil apparently had the free run of the apartment building and property based on the evidence I heard, and he was dealing crack cocaine while on those grounds while they slept. Mr. and Mrs. Gil's evidence was inconsistent between them as to where on the property young Mr. Gil slept at night. I did not accept the father's evidence that the accused could not have snuck out at night, given that the father did not even mention that Mr. Gil often slept in the basement of the building while he had apparently had been there for six months. I find that, in spite of the grandparents' best intentions, they have a lack of self-awareness about their own limitations on their ability to supervise young Mr. Gil.

It is proposed that electronic monitoring be supplemented by video cameras in the apartment. Since there is no suggestion that there would be 24-hour monitoring of these cameras, I do not see how this would provide any additional meaningful supervision. Everyone who would be involved in the supervision of Mr. Gil has to sleep some time. I believe that Mr. Gil would find ways around this level of supervision as much as he allegedly did for the previous supervision. A new electronic supervision company is proposed to replace the company that is now recognized to have been inadequate. The principal of the new company, Mr. Ascani, would be the sole person responsible for the electronic supervision. His company is a sole proprietorship. He is the sole employee. He claims that he has a monitoring company that would alert him at night if there was an alarm, but the details on that were slim. Furthermore, there is no evidence of how monitoring would be supervised if Mr. Ascani were ill or were on vacation. This electronic supervision plan seems to be full of holes that the accused could exploit.

More importantly, though, I do not accept Mr. Ascani as a suitable part of this release plan. Mr. Ascani, in his testimony before the Court, could not or would not answer simple, straightforward questions about his own criminal record. The fact that Mr. Ascani has a criminal record does not impugn his credibility in itself, however, his reluctance to admit it and, indeed, his dishonesty in relaying it to the Court are of grave concern. Mr. Ascani first said that he had been convicted of a single D-U-I. He then said that he had a conviction for driving under suspension. He then said that he had spent one weekend in jail. In reality, Mr. Ascani has a criminal record for impaired driving and for two counts of driving disqualified, the latter of which he was sentenced to 90 days in jail. This is not a matter of a confused accused person testifying about their convictions in court. Mr. Ascani is presented to the Court as a professional witness that the court would entrust with the supervision of the accused. If he is unaware of the importance of his criminal convictions for breaching court orders or unaware that he was serving a jail sentence for 90 days, even if he only spent one weekend physically in the jail, then he is not suitable to be part of any supervision plan for the accused. I find that Mr. Ascani was, in fact, being dishonest with the Court in testifying about his record. This leads me to entirely reject his evidence and find that he is not suitable or reliable to be part of the release plan.

Conclusion

I therefore find that, as I have said, Mr. Gil has not met the onus on him to show cause why he ought to be released. He is ordered detained on the tertiary and secondary grounds.

Released: June 3, 2025

Wadden J.

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Gregory Morris, CERTIFY THAT this document is a true and accurate transcript of the recording, to the best of my skill and ability, of R. v. M. Gil in the Ontario Court of Justice held at Ottawa, Ontario, taken from Recording Number 0411CR06 20180426 083221 6 WADDENR.dcr.

Gregory Morris Authorized Court Transcriptionist Date

Note: BE ADVISED: PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED BY THE COURT REPORTER AND ARE NOT AUTHORIZED FOR DISTRIBUTION. ONLY TRANSCRIPTS WITH THE ORIGINAL SIGNATURE ARE CERTIFIED TRUE COPIES AND ARE PERMITTED FOR COURT USE.