ONTARIO COURT OF JUSTICE
CITATION: R. v. Whitlow, 2021 ONCJ 564
DATE: November 8, 2021
COURT FILE No.: 2911 998 21 185
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
FOREST WHITLOW
Before Justice Glen Donald
Heard on September 15, 2021
Reasons for Judgment released on November 8, 2021
Nancy Komsa...................................................................................... counsel for the Crown
Jaime Stephenson......................................... counsel for the defendant Forest Whitlow
DONALD J.:
[1] On Saturday February 7, 2021 Mr. Whitlow drove a stolen motor vehicle to Mr. Kirk Carter’s jobsite where he exited it and began to rummage through Mr. Carter’s parked vehicle. Seeing this, Mr. Carter notified the police before attending to his vehicle. In response to being verbally confronted by Mr. Carter, Forest Whitlow said “wrong move, wrong choice” and fired a handgun four times at Mr. Carter who was struck twice in the arm suffering serious, life altering injuries as a result.
[2] In the chaos that followed Mr. Whitlow finished transferring items from the stolen vehicle in which he arrived into Mr. Carter’s vehicle and then fled the scene driving it.
[3] A short time later, Mr. Whitlow failed to stop for a stop sign and collided with another motor vehicle. The collision was such that several passing motorists stopped their respective vehicles to help. Seizing upon this opportunity Mr. Whitlow attended the driver’s side of one of these vehicles and entered the recently vacated driver’s seat. As he did so he brandished his handgun and pointed it at the vehicle’s remaining occupant whom he ordered out of the vehicle upon oral threat of being shot. Mr. Whitlow drove away when the female passenger obeyed his command. This third stolen vehicle was subsequently abandoned and set ablaze by Mr. Whitlow.
[4] The firearm(s) used in the commission of these offences was not recovered.
[5] Mr. Whitlow was arrested peacefully the next day while in the company of his mother. There is nothing to suggest that his mother was aware of the significant events from the day earlier.
[6] On September 15, 2021, Mr. Forest Whitlow pleaded guilty to aggravated assault, robbery with a firearm x2, possession of stolen property, fail to stop at an accident (under the Criminal Code) and arson arising from the above events.
[7] After registering findings of guilt defence counsel made a fresh application for bail. The proposal was for a two-week release with a residential surety, his mother Paula Whitlow, coupled with 24 hour a day electronic monitoring. The proposed two week window of time was to allow him to get “his affairs in order” and also to facilitate easier communication with his counsel in preparation for his upcoming sentencing hearing. Defence counsel acknowledged that, regardless of where I land in the range of sentences yet to be proposed, Mr. Whitlow will receive a “lengthy” period of custody for the above offences.
[8] The Crown opposed his release on each of the three grounds for detention under s. 515(10) of the Code.
[9] It is common ground that the onus was on Mr. Whitlow to show that his detention was not justified.
[10] Having heard the evidence and submissions on the bail application defence advised that time was of the essence for me to provide a decision. As a result, I provided brief reasons ordering Mr. Whitlow’s detention but promising more thorough reasons to follow. These are those reasons.
Circumstances of the Offender
[11] Mr. Whitlow turned twenty-eight on September 24, 2021. Had I released him he would have celebrated his birthday in the community under the supervision of his mother, the proposed surety. For a myriad of reasons, he had an extremely difficult upbringing. He attended Woodview Mental Health and Autism Centre between the ages of 8 and 11. During the same time frame he was diagnosed with “oppositional defiant disorder, possible obsessive compulsive disorder, elements of post-traumatic stress disorder and developmental language disorder”. He was prescribed medications to assist him with those diagnoses. In the same time frame a clinician at the CPRI observed that he struggled with “low self-esteem, anxiety, and difficulty with social skills and a lack of motivation when he felt discouraged”.
[12] At the age of 12, while attending the St. Leonard Society in Brantford (because the school on Six Nations lacked the resources necessary to deal with in operational disorder), Mr. Whitlow began running away from school. On this point he told his Gladue Report writer[^1]:
By then I started to realize if I just run away I can leave these places they’re not going to hold me down and hog tie me like when I was a kid , so I started going AWOL, and eventually got myself kicked out of those places, they wouldn’t take me back because I was a flight risk. [Emphasis Added]
[13] The Gladue report evidences a difficult relationship between himself and his mother during his adolescent years. This report speaks to Mr. Whitlow’s unfortunate resistance to the efforts by his mother designed to assist her son in overcoming those obstacles.
[14] When he was 13 or 14 he ran away from home to live with his paternal grandmother.
[15] Things appear to have stabilized somewhat for Mr. Whitlow by the age of 18 as he found himself attending Tollgate Technical School and also engaged in a form of alternate education that left him one credit shy of his OSSD.
[16] However, instability returned in the summer of 2015 as Mr. Whitlow’s maternal grandmother lost her battle to cancer. Already struggling with an addiction to opioids stemming from injuries sustained during a motor vehicle accident in 2012, Mr. Whitlow located and accessed the prescription pain medication his grandmother had stockpiled during her treatments and remarked “it got pretty bad, the heroin started after my grandmother passed away”. In the throes of his addiction, and to feed it, Mr. Whitlow sold everything of value in his grandmother’s home although it had been left to his mother.
[17] Mr. Whitlow was living in his grandmother’s property when he burned down in 2018. He then lived with his girlfriend in Brantford but was “kicked out” by her and made homeless. To cope with his homelessness, he again turned to drugs.
[18] When Ms. Whitlow learned of her son’s plight, she wanted to assist by having him return to live with her. This could only be accomplished if she evicted her common law partner of 20 years and so she made that sacrifice to help her son.
[19] The evidence at the bail hearing makes clear that the despite his mother’s tremendous efforts Mr. Whitlow’s life did not subsequently stabilize.