Court File and Parties

Date: August 27, 2020

Court File #: 4814-998-20-45001954

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Gabbiel Ledinek

Before: Justice of the Peace J. Scarfe

Heard on: August 21, 2020

Reasons for Judgment released on: August 27, 2020

Counsel

Velarezo C. — Counsel for the Crown

Monaco A. — Counsel for the accused Gabbiel Ledinek

Reasons for Judgment

Justice of the Peace J. Scarfe:

Introduction

[1] Gabbiel Ledinek comes before the Court seeking an order of Judicial Interim Release.

[2] He is currently facing the following charges:

• Discharge Firearm with Intent to Wound/Endanger life contrary to section 244(1).
• Possession of a Loaded Prohibited or Restricted Firearm with Ammunition contrary to section 95(1).
• Careless use of a Firearm, Weapon, Prohibited Device or Ammunition contrary to section 86(1).
• Unauthorized Possession of a Firearm contrary to section 91(1).
• Possession of a Firearm Knowing its Possession is Unauthorized contrary to section 92(1).
• Fail to Comply with a Recognizance contrary to section 145(5)(a).

[3] The Crown seeks Mr. Ledinek's detention on both the secondary and tertiary grounds.

Background

[4] Mr. Ledinek is currently facing one set of outstanding charges which include one count of Participation in a Criminal Organization and one count of Obstructing Justice. He pled guilty to the Obstruct Justice charge before Justice Malloy of the Superior Court of Justice in February 2020 and is awaiting sentence. I am advised that upon being sentenced on the charge of Obstructing Justice, the single count of Participation in a Criminal Organization will be withdrawn. Mr. Ledinek currently has bail on that charge. The Crown has not brought an application under section 524 to cancel that release.

[5] The Crown filed the Release Order associated with the outstanding charges, dated September 6, 2019, which was still in effect on the date of the shooting. Mr. Ledinek was subject to conditions that he possess no weapons, and that he abide by a curfew from 11:00 p.m. until 6:00 a.m., unless in the "direct and continuous presence" of Ms. McNeil, his surety. Ms. McNeil is one of two proposed sureties at this bail hearing.

[6] Mr. Ledinek bears the onus of justifying his release for two reasons. First, he is charged with firearm offences that are alleged to have been committed while the accused was under a firearms prohibition order pursuant to section 515(6)(a)(viii) of the Criminal Code.

[7] Second, at the time of his arrest on the current charges, he was facing outstanding charges as indicated above.

Allegations

[8] On May 26th, 2020, a young man named Dimarjio Jenkins was murdered on Blue Jays Way in downtown Toronto. Mr. Jenkins was a well-known rapper/musician who went by the name "Hudini." Police allege that his murder resulted from a gunfight between two opposing groups of gang affiliates. Two other people were injured in the gunfight.

[9] On June 9th, 2020, a funeral was held for Mr. Jenkins during the day. Later that evening, there was large gathering of approximately 200 people at Blaxx Caribbean Restaurant & Dive Bar located at 55 Beverley Hills Drive.

[10] Beverley Hills Drive runs east/west, directly to the north of the restaurant. To the south of the restaurant is an open area that borders on the westbound lanes Highway 401, Canada's busiest highway. Highway 401 and the open area are separated by a chain link fence.

[11] The restaurant has two security cameras; one at the front door and the other outside depicting the backdoor area. The rear camera also picks up the open area behind the restaurant.

[12] At approximately 11:21 p.m., there were a large number of patrons outside, at the rear of the restaurant drinking and socializing. Security video from the rear door camera, as well as several still images that appear to be taken from the same camera, show a vehicle come to a stop on the shoulder of the westbound lanes of the 401. The occupants of the vehicle suddenly open fire on the crowd. Many patrons rush into the restaurant, while others take cover behind a large green metal dumpster. Within seconds, as many as ten of the individuals who had taken cover, return fire in the direction of the 401. This goes on for approximately fifteen to twenty seconds and is captured on security video. Police allege the shooting continued long after the car had left the area.

[13] Police allege that Mr. Ledinek was one of the persons who discharged his firearm towards the 401. 23 seconds into the video, Mr. Ledinek, who is wearing what appears to be a black/dark green long sleeve garment with his left forearm exposed, rises up from his position behind the dumpster to a standing position. He appears to point a firearm over the dumpster and discharge it in the direction of the 401.

[14] Within a split second of firing, his left arm lets go of the firearm. At the same time, he appears to lose his balance and suddenly fall to his right. Police allege that this is the moment where he is shot by one of the other males behind him, Mr. Mahoney. Although the projectile is not visible, the manner in which he loses his balance and falls to the right appears consistent with having been shot. Police also allege that after being shot, Mr. Ledinek, along with others, continued to fire his handgun indiscriminately in the direction of Highway 401.

[15] Three still photos or screenshots taken from the security video earlier in the evening show Mr. Ledinek socializing at the party. They are all timestamped 21:49 p.m. In the first two photos, he is depicted wearing a black baseball cap, and a black/dark green tracksuit jacket, partially unzipped at the front, over what appears to be a green t-shirt. There is a logo visible on the front of the t-shirt which is obscured by a large pendant on a thick chain.

[16] In the third photo, perhaps due to the lighting, or a variable related to that particular security camera, the jacket appears to be dark green instead of black. This is most evident from the forearm that is visible as he hugs another person but is also plainly visible in the area of his shoulder. During the video clip depicting the shooting, the jacket appears to be green.

[17] At some point following the shooting, Mr. Ledinek arrives at the nearby Humber River Hospital with a gunshot wound to his abdomen. Police are called and attend the hospital. Mr. Ledinek's clothes are seized, including his black track pants, "camo" style running shoes, blue Tommy Hilfiger boxer shorts with a black elastic band, and a green short sleeved t-shirt with a Nike logo in the centre of the chest. The black/green jacket is not included in the photos of seized clothes, and in the surveillance video of him arriving at the hospital, he is no longer wearing it.

[18] Ms. Monaco, defence counsel to Mr. Ledinek, respectfully submitted that the seizure of Mr. Ledinek's clothes when he was not under arrest constitutes a breach of his Section 8 Charter rights to be free from unreasonable search and seizure. I will address that issue later in this ruling.

[19] In the photo from the hospital, as well as the photos from earlier in the evening, it is apparent that Mr. Ledinek had his hair parted in the centre, and had two "pigtails" in his hair, one on each side. Both the parted hair and the pigtails are visible in the video clip of the shooting, as are the top portion of the Tommy Hilfiger boxer shorts.

[20] He is not arrested at the hospital, presumably because the investigation is still in the early stages, and the video depicting him discharging his firearm likely had not been reviewed. He is discharged from the hospital and goes home. Police call him the next day and ask him to turn himself in. Mr. Ledinek complied. He has now been in custody since the date of his arrest, a period of approximately two and a half months.

[21] As part of its case, the Crown filed two documents of "shooting statistics" which show a consistent increase in gun related incidents in Toronto over the past 6 years. The statistics for 2020 are clearly on track to show a significant increase this year over 2019.

[22] Finally, the Crown filed an "Information Note" which provides current information on the state of the provincial jails with respect to the battle to contain the Covid-19 virus. It outlines the various screening measures and other precautions being employed in Ontario jails, and the number of current and resolved cases of Covid-19 by institution.

[23] As of August 14th, 2020 (the date of the Information Note), there were no current positive cases at the Toronto South Detention Centre where the accused is presently being held. It is quite possible that has changed in the last week and a half.

[24] Since March of 2020, the Toronto South Detention Centre reported a total of eighteen cases, 11 of which were resolved in custody, with the remaining 7 having been released.

[25] Visits have resumed. Extensive screening is being carried out when new inmates are admitted into the institution. Regular testing, although voluntary, is being carried out. Quarantine protocols are in place with respect to suspected positive cases of Covid-19.

The Accused

[26] Gabbiel Ledinek is twenty-four years old. He is the oldest of three siblings.

[27] He was born in Canada. According the recent Pre-Sentence Report prepared for his pending sentencing before Justice Malloy, Mr. Ledinek is the oldest of three siblings. His father left the household when he was just 4 years old and returned to Jamaica. He and Mr. Ledinek appear to have had very little contact since then.

[28] His mother supported the family through social assistance, supplementing her income through odd jobs. She reported that Mr. Ledinek was a bright child and did well in school during his younger years. However, as he entered his teenage years, he began to struggle. His mother attributes this to a negative peer group. By grade ten, he had dropped out of high school. He has been completing credits while in custody, but still has 9 credits to earn before he graduates.

[29] According to the probation officer who prepared the Pre-Sentence Report, Mr. Ledinek reported that his formative years left him with very negative memories. He watched friends be shot and killed, including one friend who he claims was killed by the police. His mother recalled being summoned to the hospital in Hamilton after Mr. Ledinek had been shot.

[30] Mr. Ledinek does not appear to have much of an employment history. There was reference in the Pre-Sentence Report to a job doing renovations in the past, but that employment was never confirmed. There was no evidence indicating that Mr. Ledinek was employed during the period from his release on parole in September of 2019 until his arrest on June 20, 2020, a situation his sureties attribute to his parole restrictions.

[31] Mr. Ledinek has prior convictions both as a youth and an adult.

[32] In September of 2012, when he was approximately sixteen years old, he was found guilty of Robbery X3, Aggravated Assault, Possession of a Firearm Knowing it was Unauthorized X2, Possession of a Firearm contrary to a Prohibition Order, Commission of an Offence for the Benefit of a Criminal Organization, Possession of a Schedule I Substance for the Purpose of Trafficking and Failing to Comply with an Undertaking. He was given credit for 10 months of pre-sentence custody, and sentenced to a further year, with the first eight months to be served in custody and the remaining four months to be served in the community under supervision.

[33] In December of 2012, he was convicted of a simple assault for which he received probation.

[34] In April of 2013, he was convicted of Uttering Threats in Coburg, Ontario and received 30 days in jail, plus probation.

[35] Sometime in 2016 he was arrested in possession of an illegal firearm. He did not apply for bail. He served 966 days of pre-sentence custody, and in February of 2018, he was convicted of Possessing a Loaded Prohibited or Restricted Firearm, and to Possessing a Firearm or Ammunition contrary to a Weapons Prohibition. He was sentenced to a further 25 months and 10 days. In total, he spent approximately 3 years and 7 months in custody before his eventual release on parole in September of 2019.

[36] At the time of the shooting, he was on parole with conditions that he not possess weapons and that he abide by a curfew of 11:00 p.m., except with the written permission of his parole officer. He was also on bail for the outstanding charges of Obstructing Justice and Participation in a Criminal Organization, for which he is awaiting sentencing. The associated Release Order mirrored the conditions of his parole, for the most part, including that he not possess weapons and that he abide by a similar curfew of 11:00 p.m. until 6:00 a.m., except while in the direct and continuous presence of his surety Ms. McNeil (his fiancé).

[37] The Crown filed, as part of their written materials, the Pre-Sentence Report prepared for the upcoming sentencing before Justice Malloy, as well as an assessment prepared by the Correctional Service of Canada completed in anticipation of his statutory release in September of 2019.

[38] The assessment contains some useful historical information. Both his youth and adult convictions for firearms arose out of large-scale police projects directed at gang affiliates in Toronto, those being Project Kronic and Project Marvel. It identifies Mr. Ledinek as being associated to both the Young Blood/Buck Killers (YBK) gang as well as a secondary member of the "Shooters on Site" (SOS) gang, focused on the Jane and Finch area of Toronto.

[39] The Report goes on to assess Mr. Ledinek as "High Static Need/High Dynamic Risk with a Medium reintegration potential". Included as part of the same exhibit were four Misconduct Reports arising from incidents at the Toronto East Detention Centre during the period he was in custody awaiting trial on the adult firearms offences committed in 2016. These misconduct reports paint a picture of Mr. Ledinek as violent, defiant and oppositional while in custody.

[40] On behalf of Mr. Ledinek, affidavits from the sureties, sworn Surety Declaration forms and a letter from Stephen Tan of Recovery Science Corporation confirming his eligibility for GPS Ankle monitoring were filed as exhibits. Two separate affidavits from Mr. Ledinek were also filed. He was not cross-examined on them.

[41] The first affidavit relates to his bail plan. It indicates that Mr. Ledinek will comply with the terms of any proposed Release Order. The second affidavit outlines his stated medical vulnerabilities and the difficulties he is currently experiencing while being held in custody at the Toronto South Detention Centre.

[42] Clearly, Mr. Ledinek is having a difficult time coping with the ongoing quarantines and lockdowns that are prevalent at all the detention facilities in Ontario during the Covid-19 pandemic, particularly at the Toronto South Detention Centre. In addition, he states that he is particularly vulnerable, in a medical sense, due to his specific health conditions.

[43] First, he claims to have had asthma as a child. This, however, is not referenced in either the Pre-Sentence Report or the parole assessment materials.

[44] He also claims that his doctor recently referred him to a respirologist to determine if he has COPD. Paragraph 12 of his affidavit indicates that his counsel will be supplying a letter from his doctor verifying this, however, no letter was provided during the hearing.

[45] Mr. Ledinek says that there is a lot of dust in the jail which irritates his lungs and causes him to wheeze. He states that he has been provided Ventolin and Flovent to keep his bronchial tubes open, but no independent medical evidence confirming this was provided.

[46] Second, he also alleges that he had rectal surgery prior to his reincarceration, which became infected and now requires regular draining. He was prescribed antibiotics for this and claims that if there is any indication of "regrowth", he will require further surgery.

[47] Third, he claims that the gunshot wound he sustained during the shooting "grazed his intestine", and that he was advised he should remain on a liquid diet. Despite this direction, and even though the medical department of the Toronto South Detention Centre is in possession of his hospital discharge documents and recommendations, he claims he is being given solid food which he is having great difficulty digesting.

[48] While I am inclined to accept, for the most part, the claims put forward in Mr. Ledinek's second affidavit, some independent medical records would have bolstered this aspect of his evidence substantially. In the absence of any independent corroborating medical evidence or cross-examination, it is difficult to accurately assess both the legitimacy of his claims or the severity of his medical vulnerabilities.

The Sureties and the Plan of Release

[49] Mr. Ledinek proposes he be released on a house arrest bail, with two sureties and a GPS ankle monitor. The only exceptions to the house arrest proposed are when he is in the company of his sureties, or for a medical emergency.

[50] The primary surety is Shanoah McNeil, Mr. Ledinek's fiancé. She is 26 years old and has no criminal record. She resides in Newmarket, with her stepsister, her mother, and her 9-year-old daughter. She has been in a relationship with Mr. Ledinek for the last six years and hopes to marry him.

[51] Ms. McNeil works as an esthetician, having graduated from the Canadian Beauty College in 2019 with a certificate as a laser technician. She previously graduated with a certificate as an Eyelash Extension technician. She indicated that after graduating, she started her own business as an esthetician. She works out of the basement of her home.

[52] Ms. McNeil was Mr. Ledinek's sole surety from September 2019 until his arrest on June 10, 2020. She is familiar with the duties of a surety and promises to keep a close eye on Mr. Ledinek should he be released. She is familiar with the essential details of his criminal antecedents.

[53] If released, she proposes to supervise him along with her mother, who is proposed as a second surety. Ms. McNeil is prepared to sign for $60,000.00. Her mother, Ms. Kimberley Richardson is prepared to sign for $10,000.00. Ms. McNeil will also cover the cost of electronic ankle monitoring.

[54] Ms. Richardson is 51 years old and works as a virtual support trainer for Cogeco. She lives with Ms. McNeil and they split the rent on the home which is $2350.00 per month. She, like her daughter, is currently working from home.

[55] She is in favour of the plan to for GPS electronic monitoring and is confident in she and her daughter's collective ability to properly supervise the accused. She indicates she has no hesitation in calling the police should he violate any of the terms of his bail. She indicates that the $10,000.00 pledge she is making represents the entirety of her savings, which she simply cannot afford to lose.

[56] In cross-examination, she conceded that most everything she knows about Mr. Ledinek's criminal antecedents she has learned from her daughter Ms. McNeil. She has never actually discussed Mr. Ledinek's history with him directly but plans to. She also admitted that she has never met any of his friends, and stated at one point, "I'm not his Mom." In fairness, she qualified this by saying that in the past, she wasn't his surety, but if released into her custody, things will be different.

[57] She described her daughter as "very strict." Listening to her evidence, I came to conclude that she was really proposing to act as a secondary surety, with her daughter as the primary surety who would make all the decisions with respect to mechanics of supervising Mr. Ledinek.

[58] Both Ms. Richardson and Ms. McNeil spoke about Mr. Ledinek's lack of employment after his release on parole. Both seemed to accept that, although Mr. Ledinek had a job set up when he was released in September, due to the parole restrictions he was subject to, he was not able to follow through. As a result, he stayed at home but according to both proposed sureties he turned out to be extremely helpful with respect to caring for Ms. McNeil's daughter.

[59] Both explained that the plan was for Mr. Ledinek to work in construction for someone named "Robbie". But when they learned of the restrictions related to his release on parole, they concluded that those restrictions prevented him from engaging in this employment.

[60] I have difficulty with this proposition, as I see nothing in the five conditions that would prevent him from working, unless of course "Robbie" was a gang affiliate. One of the main purposes of parole is to assist the offender to reintegrate into society. Part of that reintegration is encouraging the offender to find employment. It is unclear to me what real efforts, if any, were made to find gainful employment for Mr. Ledinek.

[61] While I find Ms. Richardson well-intentioned, she presents as somewhat naïve with respect to the role she is offering to play in supervising Mr. Ledinek.

[62] Ms. McNeil's credibility was called into question during cross-examination. First, it was her contention that she was with Mr. Ledinek at both the funeral, as well as the celebration later that evening at the restaurant where the shooting occurred. She was asked whether Mr. Ledinek was wearing a green t-shirt and claimed not to know because he had his black tracksuit top zipped up all the way up, so she couldn't see what he had on underneath.

[63] Video stills captured earlier in the evening do not show Ms. McNeil in Mr. Ledinek's company but do show that the zipper on his jacket was unzipped such that both his t-shirt and his chain and pendant were clearly visible over the green t-shirt. This leads me to suspect that either Ms. McNeil did not attend the celebration where the shooting occurred as she claims, or she was being less than forthright about the fact he was wearing a green t-shirt under his tracksuit. Either way, she was not being forthright with the Court. This reflected badly on her credibility.

[64] Ms. McNeil acknowledged that she was not in Mr. Ledinek's direct and continuous presence when the shooting broke out. She claims to have been on the other side of the parking lot, but in a position where she could see him.

[65] When the shooting began, she claims to have run to her car, which was parked in a lot next to the restaurant and left the scene without him. While this was obviously a very scary situation for everyone, and her leaving was completely understandable given the gunfire, it also quite conveniently explains why she was not the one to take him to the hospital, as opposed to a random stranger, as she claims. I am skeptical as to whether she was ever at the celebration at all.

[66] I also find her claim to have saved $80,000 over the years somewhat suspicious. She is a single mother of a nine-year-old child. She has worked in the past as a part-time personal trainer, and only started her business as an esthetician after she graduated. She has experienced a significant slowdown in clients due to Covid-19. She has also moved three times in the last 5 years. With all those challenges, it strikes me as unlikely that she was able to save such a significant amount of money when so many single mothers are struggling to make ends meet each month.

[67] Finally, Ms. McNeil, if she did attend the celebration where the shooting occurred, did so understanding Mr. Ledinek was subject to both bail conditions and parole conditions. He was not to associate with a list of persons that was so long, it had to be attached to as an appendix to his Release Order. There were approximately seventy names on that list. It appears from her cross-examination that she may have been less than attentive to this condition by allowing him to attend the celebration. Aggravating things further, she did not remain in his presence as required by the Release Order, and she let him stay after curfew contrary to the parole order. It also appears she was unaware he may have been carrying a loaded handgun, or that he was the subject of a firearms prohibition.

[68] Part of the proposed plan includes GPS electronic monitoring, which is a significant enhancement. Ms. McNeil indicates she will bear the cost of this.

[69] While I agree that the plan proposed is, in the words of Ms. Monaco, "very tight", after hearing from Ms. McNeil and Ms. Robertson, and given the credibility issues pertaining to Ms. McNeil, as well the sense of blind loyalty that permeated her testimony, I am forced to conclude that their ability to execute the plan effectively is somewhat lacking.

Issues

[70] There are five issues before the Court on this Bail Hearing:

1. What is the proper evidential use to be made of Pre-Sentence Reports and parole assessments at bail hearings?

2. Did the seizure of Mr. Ledinek's clothes constitute a breach of his Section 8 rights to be free from unreasonable search and seizure?

3. Covid-19 considerations specific to Mr. Ledinek.

4. Is Mr. Ledinek's detention necessary for the safety and protection of the public, having regard to all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit further criminal offences or interfere with the administration of justice?

5. Is Mr. Ledinek's detention necessary in order to maintain public confidence in the administration of justice?

General Principles

[71] Section 11(d) of the Charter of Rights and Freedoms provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair trial.

[72] Section 11(e) of the Charter guarantees both the right not to be denied reasonable bail without just cause and the right to bail on reasonable terms.

[73] The right not to be denied reasonable bail is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons. R v Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 at para. 1.

[74] In R v Antic, supra, the Court set out a new approach to bail, specifically with respect to the ladder principle and the use of cash bails. After reviewing the history and development of the law of bail, the Court set out the foundational principles going forward at paragraphs 64-66:

D. Proper Approach to Bail Moving Forward

64 Settling the proper interpretation of s. 515(2)(e) and the scheme governing the forms of release does not resolve one concern that underlies this case. The bail review judge's errors appear to be symptomatic of a widespread inconsistency in the law of bail. One commentator, Kent Roach, observes an element of incongruity in the bail system: "[a]lthough the Charter speaks directly to bail, the bottom line so far has been that remand populations and denial of bail have increased dramatically in the Charter era": K. Roach, "A Charter Reality Check: How Relevant Is the Charter to the Justness of Our Criminal Justice System?" (2008), 40 S.C.L.R. (2d) 717, at p. 727.

65 Despite the fact that the Code applies uniformly across the country some have suggested that courts are applying the pre-trial forms of release differently in different provinces and territories. For instance, Rosenberg J.A., writing for a unanimous five-judge panel of the Court of Appeal for Ontario, recognized that "[t]here may now be an over reliance on sureties" in that province: Mirza, at para. 47; see also Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention, by A. Deshman and N. Myers (2014) (online), at p. 36 ("CCLA Report"); M. L. Friedland, "The Bail Reform Act Revisited" (2012), 16 Can. Crim. L.R. 315, at p. 321; R v Rowan, 2011 ONSC 7362 (Ont. S.C.J.), at para. 16. Surety release may also be relied on heavily in Yukon: CCLA Report, at pp. 35-36. In Alberta, some judges and justices are improperly imposing cash bail without seeking the consent of the Crown even though doing so is prohibited by the Code: R v Folkes, 2007 ABQB 624, 430 A.R. 266 (Alta. Q.B.), at paras. 2 and 13; Brost, at para. 32; N. L. Irving, Alberta Bail Review: Endorsing a Call for Change (2016) (online), at p. 20. These examples suggest a divergence in the law of bail across this country.

66 It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less. Pre-trial custody "affects the mental, social, and physical life of the accused and his family" and may also have a "substantial impact on the result of the trial itself": Friedland, Detention before Trial, at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857 (S.C.C.), at para. 24; see also Hall, at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, "a hallowed principle lying at the very heart of criminal law... [that] confirms our faith in humankind": R v Oakes, [1986] 1 S.C.R. 103 (S.C.C.), at pp. 119-20.

[75] In R v St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 70, Wagner J. (as he then was) explained why detention is exceptional:

...it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception...This entitlement rests...on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter ...These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case. [Citations omitted]

However, pre-trial detention is sometimes necessary and appropriate. (emphasis added)

See also: R v Antic, 2017 SCC 27, [2017] 1 SCR 509, at para. 50; R v Myers, 2019 SCC 18, at para. 25.

Issue 1: Proper Evidential Use of Pre-Sentence Reports and Parole Assessments at Bail Hearings

[76] Defence Counsel Ms. Monaco made two objections to the admissibility of certain excerpts, one in the Pre-Sentence Report, and the other in the Correctional Service of Canada's parole assessment that was completed in anticipation of Mr. Ledinek's statutory release date in September of 2019.

[77] First, Ms. Monaco objects to the passage in the Pre-Sentence Report where the writer states "Guns would play a major factor in the subject's first adult offence when he was convicted of possessing a restricted firearm".

[78] She cites a number of sentencing cases which outline the types of things that are appropriate to include in a pre-sentence report, and those that are objectional, including R v Bartkow, [1978] N.S.J. No. 35 at para 10, and R v Howe [2018] N.S.J. No. 470 at para 56.

[79] Broad sweeping generalizations about an accused's antecedents, or opinions which are not backed up with facts do not properly form part of this evidentiary record. Perhaps the comment by the writer was unhelpful. It would have been useful to know more about what facts the Court was relying on when it convicted Mr. Ledinek of that charge. Nevertheless, I find the comment quite benign when put in context. Either way, I put no weight on it in my determination as to whether Mr. Ledinek is releasable.

[80] Turning to the parole assessment, Ms. Monaco objects to the admissibility of the portion of the parole assessment that states: "Mr. Ledinek has been assessed as being a High Static Needs/High Dynamic Risk case with a Medium reintegration potential."

[81] She cites R v E.B. 2020 ONSC 4383, a decision of Justice A. Schreck of the Superior Court of Ontario for the proposition that risk assessments of this type are unreliable, and do not account for cultural bias. At paragraph 56, His Honour writes:

56 To be clear, I make no finding that the actuarial assessments in this case are invalid. However, in my view, s. 493.2 requires that I take into account the possibility that the types of actuarial assessments the Crown is relying on to meet its onus on the secondary ground may be affected by cultural bias. In this case, I was provided with the results of the risk assessments without any explanation as to how those results are to be interpreted. I do not say this to be critical of counsel. Calling expert evidence of this nature is inconsistent with the expeditious nature of bail hearings. However, its absence necessarily limits the extent to which this type of evidence may be properly relied upon. As was noted in Hon. G. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2020), at sec. 1.4(e), it is very difficult to predict future dangerousness accurately and "the problem of prediction ought to be a troubling concern in the area of bail."

[82] Section 493.2 reads as follows:

Aboriginal accused or vulnerable populations

493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of

• (a) Aboriginal accused; and
• (b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

[83] Ms. Velarezo, on behalf of the Crown, submits that the types of assessment tools Justice Schreck was referring to in R v E.B., supra, were different than the one's used to generate the conclusion in Mr. Ledinek's parole assessment. In her submission, Justice Schreck was taking issue with randomized psychological testing, as opposed to the tool used to generate the medium risk rating for Mr. Ledinek. The parole assessment does not explain what methodology was used, or whether that methodology accounts for cultural bias.

[84] Section 493.2 was enacted to ensure, at least in this context, that these types of assessments, whether actuarial or not, are not used to paint all offenders with the same brush. Aboriginal offenders, and offenders from vulnerable populations that are overrepresented in the criminal justice system and are disadvantaged in obtaining release, require an inclusive approach that particularizes the unique challenges they face.

[85] This is especially true in Mr. Ledinek's case. Like many young men, he found himself attracted to the gang lifestyle, and likely saw it as a way out a life of poverty. This is a systemic issue that is rooted in generations of oppression.

[86] Whether actuarial or not, assessments that "rate" all individuals on the same scale with respect to their needs or reintegration potential, may not have much value when dealing with vulnerable communities.

[87] As Justice Trotter states in section 1.4(e) of his textbook "The Law of Bail in Canada":

Perhaps the more serious problem with respect to prediction-related issues is the assessment of dangerousness. While the issue is generally discussed in the context of the dispositional stage of proceedings, it is also of great importance to the law of bail. 328 As the discussion in Chapter 3 reveals, the secondary ground for detention in s. 515(10)(b) is largely consumed by this issue.

[88] Justice Durno's addressed a somewhat analogous issue in the decision of R v Downey (2018) O.J. No. 6133. The issue pertained to occurrence reports for which the accused was never charged. The Crown sought to introduce these at Mr. Downey's Bail Review. As His Honour stated:

10 I appreciate that as a result of the need for expeditious determinations of bail issues, that the rules of evidence are relaxed. However, they are not abdicated. In cell phone cases, we hear and read of tower dumps. Bail hearings should not become police file dumps of everything in a police file or computer with the accused's name anywhere in it. Just because a police officer has recorded something someone has told him or her in an occurrence report, does not mean it is admissible at a bail hearing or anywhere else. It is impossible to determine if any of the uncharged incidents were "credible" or "trustworthy". There is no way to test it. No sources are given, no reasons are given why no charges were laid. The references to police being involved with him, without more, are irrelevant.

11 In his text, The Law of Bail in Canada, Justice Trotter notes that the meaning of credible or trustworthy has proven somewhat elusive. It has been suggested that credible applies to direct evidence, while trustworthy refers to hearsay evidence. The author notes the phrase might best be considered as a measure by which the court can determine the weight to be assigned to proffered evidence. This issue is traditionally evaluated by the availability of effective means of testing dependable evidence. There were no means of testing these comments.

12 Many years ago, in the well-known bail case of R v Powers (1972), 9 C.C.C. (2d) 533 (Ont. H.C.). Justice Lerner addressed the issue as follows:

...the stricter application of the rules of evidence in the trial process are not necessarily applicable as long as each party has a fair opportunity of correcting or contradicting any statement or evidence he considers prejudicial to his position on such application.

13 Bearing in mind here, it was the defence position that none of these uncharged events were relevant. Further, Justice Trotter says that in the absence of an opportunity to cross-examine, it is not a barrier to admissibility, but in considering what weight to assign to hearsay evidence, a court may evaluate the circumstances in which the evidence was obtained, as well as the reliability of the ultimate source.

14 For these occurrence reports, he could do neither. Since it is impossible to evaluate the circumstances in which this evidence was obtained, or the credibility or reliability of the person who provided the information, they simply cannot be assessed.

15 To say that it is a matter of weight is problematic on these occurrence reports. It is readily apparent that they were introduced to sow the seeds that the applicant had committed numerous other assaults. Otherwise, why introduce them? What is the relevance that someone said he did something else? What is the relevance of "present at the scene of a shooting" or in a car, or that he was investigated with respect to assaults without knowing anything more? It provides no link to the allegations before the court and the issues the justice of the peace had to determine. If a piece of evidence has no weight, other than to simply pile it on to the accused, it is inadmissible.

[89] In Mr. Ledinek's case, little is known about what factors weighed into the conclusion that Mr. Ledinek "has been assessed as being a High Static Needs/High Dynamic Risk case with a Medium reintegration potential" or whether the methodology accounted for cultural bias. While I realize that uncharged occurrences and parole evaluations are different, the fact remains that Ms. Monaco has objected to the admission of this statement, and in fairness, she has not had an opportunity to cross-examine the writer as to the basis for these conclusions.

[90] Therefore, while I admitted the document that contained the parole assessment, I have assigned the rating no weight in my overall consideration. The same is true of the misconduct reports, which are one-sided, and irrelevant to the issues before me.

Issue 2: Seizure of Clothes and Section 8 Charter Rights

[91] In her submissions as to the strength of the crown's case, an important consideration on both the secondary and tertiary grounds, Ms. Monaco submits that Mr. Ledinek's clothes were seized even though he was not under arrest, and that seizure constituted a breach of his section 8 rights under the Canadian Charter of Rights and Freedoms.

[92] In response, Ms. Velarezo submits that it was very early in the investigation when the police attended the hospital and seized Mr. Ledinek's clothes. At that point, they were there treating him as a victim of a gunshot wound, and nothing more. She adds that he may very have consented to providing his clothes, especially given the context.

[93] The task of weighing the strength of the Crown's case, necessarily involves consideration of any possible defences and/or charter applications that could lead to key evidence being excluded. This is not a trial, and much of the information needed to determine these issues is simply not before the Court. If in fact, Mr. Ledinek's clothes were seized before he became a suspect, then a determination will have to be made as to whether he consented to the seizure.

[94] The circumstances were clearly exigent in that those clothes would likely not have been available later. They would have appeared, at least in the early stages of the investigation, as potentially important evidence. It seems to me that any potential Charter application to exclude evidence would face an uphill battle with respect to the test for exclusion in section 24(2). As a result, I find that the potential exclusion of evidence is but one factor, detracting only minimally, from the strength of the Crown's case.

Issue 3: COVID-19 Considerations Specific to the Accused

[95] Counsel agreed that concerns about Covid-19 in the jails informs the tertiary grounds, but not the secondary grounds.

[96] Concerns over the coronavirus have led many jurists to take judicial notice of the obvious problems in containing the virus in an institutional setting such as a jail. It goes without saying that inmates live, and move about the institution in close quarters, and physical distancing is difficult.

[97] In Ontario there has been a 26% reduction in the provincial jail population since the beginning of the pandemic in mid March. Except for the breakout at the Ontario Correctional Institute, the remaining provincial jails have done exceptionally well in containing the spread.

[98] Mr. Ledinek, through his affidavit, suggested that he is medically vulnerable for several reasons. One of these is asthma, which he is concerned may have developed into COPD. Covid-19 is a respiratory virus which, if contracted, can have long term effects on a person's respiratory system.

[99] In R v Flemming (an unreported decision from the Ontario Court of Justice, released June 20, 2020), Justice Breen points out that the Toronto South Detention Centre has been very successful in preventing outbreaks, and that for the most part, the numbers of infections in Ontario have been steadily declining. On this basis, he found that the risk of Mr. Flemming contracting the virus "is not significantly greater in the T.S.D.C."

The Crown referred me to the decision of R v Viveros Valdez, (unreported decision of Justice C. Brewer released May 15, 2020), Her Honour found at paragraph 41 that because of Mr. Viveros Valdez's asthma, he was at a heightened risk of contracting the virus. Nevertheless, given her concerns about the accused's conduct and attitude, and given her doubts about the sureties' ability to properly supervise him, she determined that detention was necessary on the secondary ground.

[100] In R v Ho (unreported decision of Speyer J. of the Superior Court of Ontario, released April 23, 2020), Justice Speyer grappled with the fact that the Mr. Ho had been diagnosed with asthma as a child and was at increased risk for contracting the virus. While he still used medication, his counsel stopped short of describing his asthma as "severe". Mr. Ho had been an inmate at the Central East Correctional Centre in Lindsay, Ontario, since November of 2019.

[101] Justice Speyer reviewed the Information Note dated April 7, 2020, setting out the status of Covid-19 in the Ontario jail system, and noted that, at least as of that date, there had been no infections recorded in that institution. Weighing the other factors relevant to the tertiary ground, including Mr. Ho's long record for violence, the Court found that despite the risk to the inmate population posed by Covid-19, a reasonable person, having weighed that vulnerability against Mr. Ho's criminal antecedents, would find that his detention was necessary in order to maintain confidence in the administration of justice.

Issue 4: Secondary Ground

Is Mr. Ledinek's detention necessary for the safety and protection of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit further criminal offences or interfere with the administration of justice?

[102] In weighing the concerns on the secondary ground, the Supreme Court of Canada noted in R v Morales (1992), 3 S.C.R. 711 that it is impossible to make exact predictions about future dangerousness, and that before ordering detention, I must find that there is a "substantial likelihood" that he will commit further offences or interfere with the administration of justice.

[103] In R v Budge (2012) O.J. No. 2538, Justice Durno provided a summary of the factors and the method of analysis that ought to be considered in assessing the secondary ground. His comments are particularly germane in this case. Paragraphs 60-65 read as follows:

60 The factors to be considered on this ground include: whether the applicant has a criminal record and if so, for what offences, the sentence imposed, the dates of the entries. Is the applicant currently subject to any court orders? Are there outstanding charges and, if so, what are the offences? What is the nature of the current charges? What is the strength of the evidence? Does the applicant have legitimate employment to go to? What is the plan for release? Who are the sureties? What are the amounts proposed? Are there concerns based on the accused person's background and/or personality or as Justice Trotter puts it in his text, are there concerns about the stability of the person? Finally, whether there are concerns for interference with the administration of justice.

61 The meaning of the secondary ground was examined by the Supreme Court of Canada in R v Morales, [1992] 3 S.C.R. 711, and bears repeating.

• Danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. In general, our society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime.

62 Chief Justice Lamer indicated that there were two factors which are vital to a determination that there is just cause for detention under s.11(e) of the Charter. Turning to the quotation:

• First, the denial of bail must occur only in a narrow set of circumstances. Secondly, the denial of bail must be necessary to promote the proper functioning of the bail system, it must not be undertaken for any purpose extraneous to the bail system.

• 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. Bail is denied only for 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. Moreover, detention is justified only when it is necessary for the public safety.

63 As indicated to counsel in submissions, R v Whervin (2006) O.J. No. 443 (SCJ), relied upon by the Public Prosecution Service, an oral ruling of Kin J. is the most or certainly one of the most frequently cited bail authorities in this building by prosecutors. I have previously ruled that in some cases it is mis-used, for example when that accused and another are compared or the facts of that case compared to others and the ruling is used almost as a standard for the determination of whether an accused gets bail - Whervin was detained therefore this accused must be detained.

64 What the judgment stands for, and it is clear from His Honour's comments in it, is a two-step analysis on the secondary ground consistent with numerous judgments. As His Honour found, first, is there evidence from which it could be concluded the accused has engaged in an ongoing criminal lifestyle? If the answer to that question is yes, as it unquestionably is here, that does not dictate detention. There is no authority that I am aware of that requires a person who has engaged in ongoing serious criminal activity must be detained in custody on that finding alone. That finding relates to past conduct. The secondary ground involves a prediction of future conduct or more appropriately a risk of future offences or interferences with the administration of justice.

65 There is a second step, the step that Justice Hill found was met in Whervin. Depending on the onus, and I will use the onus on this application, has the applicant established that he probably will not engage in further criminal activity and probably will not interfere with the administration of justice if released? Answering these questions require an examination of the applicant, the sureties, the amount and the plan. If the onus is not met, the applicant is detained. Justice Hill found with respect to that applicant, that there was a substantial likelihood he would commit a further offence. That's the finding on the second step and the essential one.

[104] In Mr. Ledinek's case, his criminal record is a strong indicator as to his future dangerousness and the likelihood that he will fail to comply with the terms of his release.

[105] The current allegations are extremely concerning. He is caught on video discharging a handgun in the direction of Highway 401. He could have remained behind the dumpster or fled the scene through the backdoor of the restaurant, like so many unarmed people were forced to do. Instead, he chose to engage in a gunfight without any regard for who he was shooting at, or the general public travelling on the highway.

[106] He clearly learned little from the two long jail sentences he served for firearms offences, the first as a youth, and the second as an adult. He appears to have little regard for his weapons prohibition.

[107] While a strict plan of release like the plan proposed can go a long way to ameliorating concerns for public safety, in Mr. Ledinek's case, his past conduct suggests he will find a way to arm himself with a firearm soon after he is released.

[108] Yes, it is a "tight plan", in theory, but both sureties failed to convince me through their testimony that I can rely on them to enforce the strict terms they are proposing. Ms. Richardson says "Shanoah is very strict", but clearly, she is not. She accompanied him to a party without any regard for the long list of people who he was not to have contact with. She did not stay in his direct or continuous presence as required by this Release Order. She let him remain there well after 11:00 p.m. in contravention of his parole conditions. She cannot be relied upon to ensure that Mr. Ledinek follows court orders.

[109] Ms. Monaco submits that electronic monitoring is a significant factor adding strength to the proposed plan, as it has proven to be a significant deterrent to accused persons who consider leaving their home to commit crimes.

[110] Ms. Monaco referred this court to the following passage of Justice Malloy in the very recent case of R v F.D. 2020 ONSC 3054 where, in the process of releasing an accused at a Bail Review, she stated:

The entire plan is backed up with high-level digital electronic monitoring with G.P.S., paid for by Mr. and Mrs. Petrucci. I realize that electronic monitoring was part of the original plan as well, and I also recognize that electronic monitoring cannot prevent breaches; it merely detects breaches immediately. However, there is a deterrent effect because the accused knows any breach will not go undetected, and it is a valuable addition where the primary level of supervision is a strong one. Under the proposed plan, F.D. will be under strict house arrest, with a surety present in the home at all times, and with his ability to go outside the house being limited to the backyard, or for medical emergencies, or visits to his lawyer, bail supervisor, or the like, all in the presence of a surety. This is an extremely tight plan, supervised by people I feel I can trust absolutely and who will put their obligations to the court ahead of feeling sorry for the accused. It is particularly important that this home is in a quiet neighbourhood far from the circles in which F.D. travelled previously and without any ability for him to simply step out and find his previous associates. In my view, this is a plan that will likely be successful in preventing any breaches by F.D. and provides adequate protection for the public.

[111] The difference here is that the success of electronic monitoring is conditional on having very reliable sureties, "who will put their obligations to the court ahead of feeling sorry for the accused". I do not believe that is the case here.

[112] Ms. Monaco also relied on the case of R v B.M.D. 2020 ONSC 2671, a very recent decision from Justice Monaghan where he states:

ii. The Deterrent Effect of GPS Electronic Monitoring

56 In considering whether and how GPS electronic monitoring might meaningfully contribute to a plan of release, it is important to recognize the role and function of electronic monitoring. Generally, electronic monitoring does not seek to prevent a person who intends to commit a criminal offence from carrying out that intention but, rather, to deter a person from forming that intention in the first place.

57 It is now well established that the certainty, severity and swiftness of criminal sanctions are key factors in deterring crime. 15 GPS electronic monitoring, because it provides continuous oversight of an individual, increases the certainty that police will detect a violation of release conditions, and also makes such detection immediate. In addition, the location data obtained by GPS satellites allows police to track the location of the individual and increases the likelihood that he or she will be apprehended quickly should they flee and/or commit further crimes. It also provides a record of the individual's location, which may assist in the prosecution of any crimes committed while on release.

58 As such, other things being equal, one would expect electronic monitoring to have a significant deterrent effect on those individuals who are subject to such monitoring, thereby inducing increased compliance with their conditions of release. As Nordheimer J. (as he then was) observed in R. v. Doucette, the individual being monitored knows that, "in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area." 16 Nordheimer J. noted that this greatly reduces the window of opportunity for the commission of an offence.

59 To be sure, electronic monitoring will not eliminate the possibility of breaching certain release conditions. There will be a certain proportion of individuals who may calculate that, notwithstanding the continuous monitoring, they will nevertheless be successful in fleeing and evading police apprehension. There will also be those determined or resolved to commit certain crimes regardless of whether they are subsequently apprehended. Nevertheless, one would expect the presence of electronic monitoring to contribute materially to greater compliance with release conditions. 17

[113] While I accept that the presence of electronic monitoring will act as a real deterrent to Mr. Ledinek leaving the home, I am more concerned about what he may do while at home. While the presence of a GPS ankle bracelet essentially prevents him from going to the trouble, only the sureties can prevent trouble from coming to him. As we have all learned from the pandemic, much of what we all do can be done remotely.

[114] The presence of electronic monitoring won't have any effect on Mr. Ledinek if he chooses to acquire a gun or engage in illegal activities while at home. It does not detect the presence of illegal substances, nor will it detect unauthorized telephone use. As Justice Malloy pointed out, the success of the plan is dependent on attentive sureties who are committed to ensuring compliance with the terms of any proposed release.

[115] Another important factor respecting the safety of the public is that the firearm Mr. Ledinek was seen using on June 9 has not been recovered. If released, Mr. Ledinek may or may not have access to it. This is a minor factor in the sense that he has demonstrated over the years that he can easily access firearms when he wants to.

[116] The transcripts of the phone calls underlying the charge of Obstruct Justice cause additional concern. On the intercepts, Mr. Ledinek is heard going to great lengths to pressure his co-accused into pleading guilty. He makes it clear he is prepared to offer him $10,000.00 to do so. This willingness to obstruct and subvert the legal process detracts from any confidence this court has that Mr. Ledinek will comply with the conditions imposed, should he be released.

[117] Turning to the strength of the crown's case, an important factor on the secondary ground, Ms. Monaco submits that identification is a major issue in this case, and that the video is inconclusive, depicting little but mayhem and chaos. I reviewed the video numerous times, cross-referencing it to the still photos. I also watched the video in slow motion.

[118] As previously indicated, and with great respect to Ms. Monaco, I am satisfied that the video depicts Mr. Ledinek discharging a firearm. While I disagree with the Crown that he is wearing a short-sleeved t-shirt at the time of the shooting, it certainly appears to be him. The strength of the Crown's case is significantly bolstered by the fact that Mr. Ledinek arrives at a nearby hospital with a gunshot wound soon after the shooting.

[119] Ms. Monaco also points out that over two and a half months after the shooting, there is no Gun Shot Residue (GSR) report in respect of the clothes Mr. Ledinek was wearing. While I appreciate that this may appear as a hole in the Crown's case, it is still early in the process, and such a report may still be forthcoming. Given how many persons were clustered together discharging firearms, I am left wondering what value the report would added to the prosecution's case? Anyone standing near that dumpster would be covered in gunshot residue, whether they were firing a gun or not.

[120] As previously mentioned, section 493.2 requires me to consider the fact that Mr. Ledinek is a member of a vulnerable community that is overrepresented in the criminal justice system. He is black. Black persons traditionally have a harder time getting bail and are therefore overrepresented in the remand population as well. This is wholly undesirable.

[121] Gangs represent a widespread cultural challenge, which has existed for a long time. Mr. Ledinek has most likely experienced systemic racism, poverty and all the other disadvantages that come with being in a marginalized group that has experienced multi-generational trauma.

[122] How does one reconcile this with concerns for public safety? Justice Schreck in R v E.B. stated at para 42:

42 While s. 493.2 requires the court to consider the circumstances of Indigenous accused and members of vulnerable groups, it does not supersede s. 515(10). What this means is that regardless of the accused's circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released. If there is a substantial likelihood that the accused will commit further offences if released and thereby compromise public safety, the fact that systemic or background factors contributed to that substantial likelihood does not change the result. A dangerous person is no less dangerous because he or she is a member of a vulnerable group: R v Sim (2005), 78 O.R. (3d) 183 (Ont. C.A.), at para. 18.

[123] When I engage in the balancing exercise contemplated by Justice Hill in the second prong of the test in Whervin, supra, I find that the seriousness of the current allegations combined with his criminal record for guns, violence and non-compliance with court orders, as well as the shortcomings inherent in the proposed plan, necessarily leads to the conclusion that there is a substantial likelihood that, if released, he would most likely reoffend. I have little doubt, given his propensity for possessing guns, that if released, within a short time he will have armed himself with a firearm.

[124] In the final analysis, I find that Mr. Ledinek's has failed to discharge his onus on the secondary ground, and that his detention is necessary for the protection and safety of the public.

Issue 5: Tertiary Ground

Is Mr. Ledinek's detention necessary in order to maintain public confidence in the administration of justice?

[125] The general principles governing the proper application of the tertiary grounds were summarized by the Supreme Court of Canada in the decision of R v St-Cloud, 2015 SCC 27 at paragraph 87:

87 I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

• Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.

• Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

• The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.

• A court must not order detention automatically even where the four listed circumstances support such a result.

• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

• The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis.

• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

• To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

• This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

88 In conclusion, 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.

[126] Turning first to the assessment of the strength of the crown's case, the evidence is strong, perhaps even overwhelming. He is captured on video surveillance discharging a firearm towards Highway 401. He attends at the hospital with a gunshot wound a short time later. The possibility that a court would exclude his clothing from evidence seems remote, especially when one considers the necessary analysis that must be undertaken pursuant to section 24(2) of the Charter.

[127] With respect to the gravity of the offence, the offence of Discharging a Firearm carries a mandatory minimum sentence of five years for a second offence. When the accused is on a weapons prohibition, an additional year, consecutive, is often added.

[128] Turning to the third consideration, the circumstances surrounding the commission of the offence, indiscriminately firing a gun in the direction of Canada's busiest highway is an extremely aggravating factor. The fact that he is violating a weapons prohibition, a Release Order and the conditions of his parole, all at the same time, are also extremely aggravating factors favouring detention.

[129] There is ample reference in recent cases to the grave nature of offences involving loaded firearms, and their toxic effect on society. Courts continue to speak regularly to the serious epidemic of gun violence in Toronto and the serious threat to public safety that results. The problem is not improving; in fact, it is getting worse each year. While I am mindful that Mr. Ledinek is not alleged to be trafficking in firearms, the fact remains that he was using one as opposed to simply carrying it.

[130] The fourth enumerated factor involves a consideration of whether the accused faces a lengthy period of incarceration if found guilty. Mr. Ledinek, if found guilty, would face a 5-year mandatory minimum sentence (for a second offence) plus one year for violating the weapons prohibition, consecutive.

[131] Having considered the four enumerated factors set out in s. 515(10)(c), I must also consider any other circumstances as part of the tertiary ground assessment. His relatively young age is factor in his favour. By the same token, he is almost 25.

[132] I find that Mr. Ledinek's criminal record for violent offences is a significant consideration favouring detention. He failed to learn from his two previous convictions and lengthy jail sentences that possessing or using guns is unacceptable. The commission of violent offences while using a weapon is a significant factor in the mind of any reasonable member of the public. His disrespect for the various orders he was subject to is also a factor in favour of detention.

[133] As previously indicated, the proposed plan is a very strict one. Electronic monitoring is a significant enhancement to the plan favouring release. Nevertheless, when I consider the ultimate question, I find that even the most liberal-minded, educated member of society, who is fully cognizant of the presumption of innocence, the right to reasonable bail, and fully on board with the objectives of our enlightened and progressive bail system, would still lose confidence in our system of justice if they were to learn that Mr. Ledinek had once again been released into the community.

[134] To be clear, even where all four enumerated factors are at maximum force, detention is not automatic. However, in R v E.W.M. (2006), O.J. No. 3654, Justice Jurianz wrote at paragraph 32:

Section 515(10)(c) is designed so that a consideration of all the circumstances with special regard to the four key factors will result in a determination that maintains the public's confidence in the administration of justice. For example, where each of the four factors is assessed as having maximum force, a determination that refusal of bail is necessary to maintain public confidence in the administration of justice is entirely to be expected.

[135] While I consider the stringent plan of release proposed, the electronic monitoring, and the presence of two sureties, I find the plan of release is insufficient to tip the balance in favour of release on the tertiary ground.

[136] Therefore, I find that Mr. Ledinek's detention is necessary in order to maintain public confidence in the administration of justice.

Disposition

[137] A detention order will issue on both the secondary and tertiary grounds.

Released: August 27, 2020

Justice of the Peace J. Scarfe