Court Information

Ontario Court of Justice Date: 2020-06-25 Toronto Region

Between: Her Majesty the Queen — and — Amari Buchanan

Before: Justice L. Feldman

Heard on: May 11, 12, 26, 29, June 8, 10, 19, 25, 2020

Reasons for Judgment released on: June 25, 2020

Counsel

S. Orlando — counsel for the Crown

M. Salih, C. Rosemond — counsel for the accused Amari Buchanan

Judgment

FELDMAN J.:

Background

[1] Amari Buchanan has commenced a trial before me on charges of human trafficking, living off the avails, cruelty to animals, criminal harassment and fail to comply with probation. He is on a detention order. He has been in custody since his arrest on June 12, 2019. The trial has been delayed by the coronavirus pandemic.

[2] Mr. Buchanan sought review of his detention in the SCO with the assistance of amicus. That court declined jurisdiction because Code s. 523(2)(a) directs that a review be heard before the trial judge. He now brings an application for release in this court.

[3] On July 12, 2019, Mr. Buchanan was detained on the secondary ground by Gilani J.P. The learned Justice of the Peace considered the defendant's criminal antecedents that include 14 convictions for failing to comply with court orders, possession or careless storage of a prohibited or restricted firearm, drug trafficking, escape lawful custody, obstruct peace officer, 3 assaults and utter death threats.

[4] Gilani J.P. took note of allegations indicating that the defendant procured the complainant, J.J., to offer sexual services to men, drove her to certain clients, controlled her earnings and assaulted her regularly. She referred to other allegations that included choking the complainant and cruelty to her dog.

[5] She would have been aware that Mr. Buchanan pled guilty on March 27, 2019, to 4 counts of assault of the complainant, in addition to a breach of a recognizance by possessing a weapon in relation to a different domestic complainant.

[6] The Justice heard evidence from Mr. Buchanan's mother, Yvonne Carol, that the complainant was unstable, has recanted her evidence in the past and vandalized her son's girlfriend's car. She says she feels harassed by her. The proposed surety at the time, a 34-year old male, with whom the defendant was to live, worked during the day.

[7] Gilani J.P. was alive to the possibility that the complainant would be an unpredictable witness whose reluctance would likely weaken the case on these serious charges. She was mindful of these factors but felt Mr. Buchanan was not amenable to supervision. In the result, she was of the view there was a substantial likelihood he would commit other offences or interfere with witnesses. She detained him. She ordered that while in custody, he was not to communicate with Ms. J.

[8] This review of her order does not take the form of a bail de novo, nor does it look to identify error. Rather, in order to discharge the onus of showing cause, the applicant must demonstrate on a balance of probabilities that there has been "a substantial change in circumstances in a respect material to the basis upon which the detention has been ordered", in this case, on the secondary ground[^1].

Positions of the Parties

[9] Mr. Rosemond, for the applicant, submits that the Crown's prospects of conviction in this case are non-existent. He says the complainant is hostile, unstable, unreliable and disruptive to the court process, having threatened the Crown and the officer-in-charge. He notes Ms. J. expresses no fear of the defendant.

[10] He submits the weakness in the case in combination with a plan of release that would include house arrest and electronic monitoring answers any secondary ground concerns. He says that weakness and the risk to the asthmatic accused of the coronavirus lessen the significance of the tertiary ground. He suggests the administration of justice would be brought into disrepute were his client not released.

[11] Ms. Orlando, for the prosecution, submits that the applicant has not met his onus in Prete. She says the complainant's recantation is explained by direct threats of harm from the accused in phone calls from the jail and subtle influence by the proposed surety. She intends to rely on the KGB statement provided by Ms. J. seen in the context of prior admitted assaults at the hand of the applicant.

[12] She says, in addition, that this behaviour, given his prior serial breaches of court orders, permits the inference that the accused is uncontrollable and would interfere with this witness, should he be released, all of which reinforces the secondary ground concerns of the Justice of the Peace. She suggests that Ms. Carol, who has a history as an ineffective surety for her son, cannot be relied on in this regard.

[13] Finally, the Crown says that regarding tertiary ground concerns, the case is not yet undone and with respect to COVID spread, there is insufficient evidence of specific risk to the accused.

The Evidence

[14] Mr. Buchanan began his trial on Feb. 5, 2020. I have heard 3 days of evidence. These are no doubt serious charges. As I am the trial judge, I will make only brief reference to the evidence.

[15] Ms. J. has been an escort since age 21. She has been involved in a relationship with the applicant on-and-off since the summer of 2018. They lived together for 4-5 months, sometimes in her car. As noted, on March 27, 2019, Mr. Buchanan pled guilty to assaulting her. In fact, she testified he assaulted her once every couple of weeks.

[16] In her original police statement, Ms. J. alleged the defendant lived on the avails of her prostitution and criminally harassed her. In her testimony, she recanted and is now hostile. She denies being in fear of the accused and wants the prosecution to end.

[17] The evidence of D.C. Reynolds, the officer-in-charge, permits the inference that Ms. J. is volatile and mentally unstable. She has threatened suicide should the matter continue. She describes the officer and Crown as evil. P.C. Reynolds has left open a line of communication for her and has commendably made effort to direct her to available mental health resources.

[18] It is a significant contextual fact that on Oct 3, Ms. J. emailed the Crown that the defendant had been calling her from the Toronto East Detention Centre (TEDC) threatening to break her neck unless she testified that her original statement was a lie. She provided copies of the incoming calls on her phone.

[19] As well, John Lawson, security manager at the jail, informed D.C. Reynolds about an investigation that included video evidence demonstrating that the defendant also called Ms. J. from his cell block on April 11, 15 and 20.

[20] These were serious breaches of court orders, a pattern of behaviour that is brazen and replete in the criminal history of this man. It indicates the defendant would not hesitate to interfere with witnesses.

[21] It is of a kind with the lack of respect he holds for terms of release that focus on protection of his alleged victims. For example, on April 25, 2018, Mr. Buchanan was charged with assault of Shequilla Cameron, a domestic partner, and released. It only took him until that evening to go to her residence in contravention of his terms of release. Ms. Carol was his surety. Multiple breaches form part of the 46 convictions amassed by this defendant.

[22] Ms. Carol testified that release to her with terms that include house arrest and use of an electronic bracelet means there would no longer be a substantial likelihood of re-offense or interference with witnesses. Ms. Carol is an apologist for her son. As surety, she has not been effective, nor has she always been cooperative with the police.

[23] In 2012, the defendant failed to appear for 7 months on assault charges in Peel Region for which Ms. Carol was surety. She did not contact the police. When police spoke to her, she indicated her son was an adult and she did not control him.

[24] She was his surety in July 2015, when he communicated with his victim on an utter threat charge contrary to his terms of release, as she was when he was found in the company of his co-accused 'baby mother' in Dec. 2016, despite being ordered by a court not to do so.

[25] As well, as noted earlier, she was surety for her son on the Cameron assault allegations. There, the defendant was stabbed during his return to the complainant's home after his release. The police were looking for him because of the breach. Ms. Carol withheld information about the stabbing and his whereabouts.

[26] Ms. Carol has also facilitated calls between her son and the complainant from the jail. More recently, she has communicated with Ms. J. despite warnings from the Crown and officer not to do so, given the complainant's allegation of harassment and the concern of influence over this unstable witness. The Crown did so in open court. I do not accept this witness's evidence that P.C. Reynolds failed to caution her in this regard. Ms. Carol also claimed in an email to have been threatened by Ms. J. but chose not to back it up. I am not confident she has the will or ability to control the applicant.

[27] While the electronic bracelet will reinforce the house arrest, it will not assist in preventing non-compliance. And while I agree that the defendant's asthma places him at some risk should he contract COVID-19, the protocols in place in the jail and the data would appear to put that risk at the lower end. There are no positive cases at the TEDC and only 6 in the province.

Decision

[28] The Justice of the Peace was mindful of the potential weaknesses in the Crown's case. The evidence at this trial suggests the prospects of conviction remain low. It is unknown which J.J. will appear to continue her testimony. I do note that on the last day of trial, after the complainant reviewed her statement, her attitude became less negative towards the Crown.

[29] Four consecutive days are set aside in July to complete this trial. There are material changes in circumstances to consider, including an uncertain case and an unpredictable complainant subject to instability and inconsistency, an offer of house arrest, proposed use of an electronic bracelet and risk of infection.

[30] The test on this review is one of substantial change in circumstances with regards to secondary ground concerns. In my view, on this evidence, despite the material changes, Mr. Buchanan has not met the Prete test, nor has he satisfied his onus that he would comply with terms of release. The application is denied. The matter will continue to completion on July 20.

Released: June 25, 2020

Signed: Justice L. Feldman

Footnotes

[^1] R. v. Prete, [1987] O.J. No. 2480 (Ont. Supreme Ct.), at para. 4