WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
- ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD — (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
( a ) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
( b ) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
(2) FAILURE TO COMPLY — Every person who fails, without lawful excuse, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: September 28, 2021 Court File No.: 19-50000324-0000
BETWEEN:
HIS MAJESTY THE KING
— AND —
BARRINGTON BROOKS
JUDICIAL INTERIM RELEASE HEARING
Before: Justice of the Peace Robert Brain Heard on: September 17 and 28, 2021 Reasons for Judgment released on: September 28, 2021
Counsel: M. Coristine, counsel for the Crown M. Chernovsky, counsel for the Mr. Brooks
Brain, R., J.P. (Orally):
[1] We have completed a contested bail hearing for Mr. Brooks today, and I am prepared to give my decision. I wish to remind everyone that the publication bans previously ordered pursuant to sections 486.4 and 517(1) of the Criminal Code, with respect to the evidence and identity of the victims in these matters, remain in effect.
[2] This is not a trial, this is a hearing to determine whether Mr. Brooks is eligible to be released on the proposed plan, as opposed to being held in custody until his matter before the court is completed. This is not a court of punishment or finality. At some other time, a different court will ultimately decide the case.
[3] The Crown is recommending Mr. Brooks detention on the secondary and tertiary ground concerns. The primary grounds have not been raised as a concern.
[4] This is a Crown onus situation, which means that the Crown bears the onus in this instance of demonstrating why Mr. Brooks should be detained on a balance of probabilities.
[5] I remind myself that the default position is always release, and that Mr. Brooks is presumed innocent and entitled to reasonable bail at the earliest opportunity and under the least onerous form and conditions of release.
[6] Any bail decision is an exercise in risk management, whereby I as the presiding jurist, must balance these concepts and rights against the protection of the public and the interests of justice.
[7] I have considered the ladder principle as outlined in the Supreme Court decision of R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509. I have also considered the Supreme Court bail decisions in R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 and R. v. Morales, [1992] 3 SCR 711.
[8] I am mindful of the principles of judicial restraint as outlined in s. 493.1 of the Criminal Code.
[9] I will not repeat the allegations or evidence in great detail as it is all part of the record.
The Proposed Plan of Release
[10] Defence counsel proposes that Mr. Brooks participate in the Toronto Bail Program and agree to be electronically monitored with an ankle bracelet.
Secondary Grounds
[11] Regarding the secondary ground concerns raised in accordance with s.515(10)(b) of the Criminal Code, I must consider whether Mr. Brooks’ detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that Mr. Brooks will, if released from custody, commit a criminal offence or interfere with the administration of justice.
[12] The specific factors I considered under the secondary grounds are the criminal record and compliance with previous court orders, the nature of the offence and apparent strength of the Crown’s case, the stability of the accused, his alleged interference with the administration of justice and the appropriateness of the plan of release.
The Criminal Record and Compliance with Previous Court Orders
[13] Mr. Brooks has a very lengthy criminal record, which includes many serious offences such as bank robbery, use of a firearm in the commission of an offence, assaulting a peace officer, uttering threats, possession of stolen property, theft, trafficking in a narcotic, possession of a narcotic, carrying a concealed weapon, dangerous operation of a motor vehicle, obstruction of a peace officer, procure to have illicit sexual intercourse, possession of a weapon, carrying a concealed weapon, being unlawfully at large, criminal harassment and assault.
[14] Mr. Brooks has also spent a significant amount of time in custody, stemming from a conviction for bank robbery, in which he served his entire 16-year sentence. The Crown also provided evidence of non-compliance by Mr. Brooks, while he was previously in custody. In total, Mr. Brooks’ criminal record dates back about 38 years. Mr. Brooks has also been in custody since his most recent arrest in 2018.
[15] It is worth noting that the original criminal record offered to the court in these proceedings contained entries of withdrawn and acquittal matters for Mr. Brooks. This matter was discussed with the parties and an appropriately redacted and updated copy of Mr. Brooks criminal record was provided to this court. Accordingly, I have only considered Mr. Brooks convictions for the purposes of this hearing.
[16] At the time of the alleged stabbing incident, Mr. Brooks was also subject to two separate three-year probation orders, stemming from unrelated matters he was convicted for on September 29 and December 18, 2017, respectively. Both orders contained similar terms of keep the peace and be of good behaviour and do not possess any weapons as defined by the Criminal Code.
[17] The Crown has stated that it will be making an application to have Mr. Brooks designated as a dangerous offender.
The Nature of the Offence and Apparent Strength of the Crown’s Case
[18] Defence counsel raised the issue of identity during the hearing, indicating that the Crown had no prima facie case on this issue. However, there is strong circumstantial evidence and at least two witnesses who identified Mr. Brooks. Therefore, I am satisfied that the Crown has proven identity in this matter. In any event, triable issues will be dealt with at trial and at this stage inform my risk assessment analysis under the secondary grounds at the bail stage.
[19] The allegations are that the main stabbing incident, was a violent, unprovoked, attack on an innocent unarmed person, in broad daylight, in front of countless witnesses, which was also captured on high-definition video, from many angles. The video shows Mr. Brooks calmly walk into the barber shop, then take out a kitchen knife and attack the victim. Mr. Brooks allegedly lunged towards the victim and swung the knife towards the victim’s head. The victim fell to the ground, and Mr. Brooks continued to attack him and ultimately stabbed the victim three times, which caused a collapsed lung and other injuries. The most disturbing part of the incident was how the attack appeared deliberate and planned, based on the calmness of the approach, the concealment of the knife and the sudden viciousness of the attack. Mr. Brooks’ attack would likely have killed the victim, had it not been for a Good Samaritan who interrupted the attack, which allowed the victim to escape. The video also showed Mr. Brooks being confronted by the customers of the barbershop, all while he continued to brandish his knife, when he was briefly prevented from leaving the barbershop. Upon leaving the barbershop however, it is alleged that Mr. Brooks gave short chase to the victim, but eventually walked away. Many people were present in the barbershop during the attack, including children. Mr. Brooks was also subject to the two probation orders at the time. The complainant in this incident has stated that he is fearful of Mr. Brooks.
[20] With respect to the separate allegations of criminal harassment, the Crown alleges that Mr. Brooks attempted to contact and harass the two young female complainants, over a period of approximately 4 years. In addition, the Crown introduced evidence of Mr. Brooks’ previous conviction for assaulting the two female complainants. Based on the available evidence, they fear for their safety should Mr. Brooks be released. Moreover, I am satisfied that the witnesses involved in the stabbing incident and the community at large would also be concerned.
The Stability of the Accused
[21] There was no current evidence proffered to indicate that Mr. Brooks suffered from any mental health or substance abuse issues. However, there were reports, albeit dated, provided by the Crown, from the Parole Board of Canada and a Psychological Assessment of Mr. Brooks, which indicated that Mr. Brooks was a high risk for violent recidivism.
Interference with the Administration of Justice
[22] Given Mr. Brooks conviction for the assaults and the current allegations of criminal harassment involving the same complainants, which has occurred over a lengthy period of time, I have significant concerns regarding the potential that Mr. Brooks may attempt to continue to harass or influence the young female complainants. I am equally concerned that the victims and other witnesses may be influenced or intimidated by Mr. Brooks, given the level of open public violence used in the alleged knife attack and his complete disregard for his probation orders.
Appropriateness of the Plan of Release
[23] Defence counsel has offered a release plan for Mr. Brooks that includes participation in the Toronto Bail Program and electronic ankle monitoring. With respect to the Toronto Bail program, the program acknowledges that the majority of work will be left up to Mr. Brooks. In their support letter, the Bail Program even acknowledges that their decision to support Mr. Brooks, is based on the “primary grounds”, which are not a concerned raised in this matter. The letter goes further to state in the final sentence, “Our program, however, is not taking a position concerning the secondary grounds”. This means that the Toronto Bail Program will have limited involvement and supervision of Mr. Brooks.
[24] Turning to the issue of electronic ankle monitoring, the Crown and defence counsel offered caselaw related to this issue and I have carefully reviewed it. From the caselaw, I note that reliance at the bail stage on ankle bracelets is based on overall deterrence and not prevention of re-offence. While courts are supportive of ankle bracelet use, it is primarily used when combined with other conditions. Of course, that is not to say that a plan of release must ever be perfect, but it must address and mitigate the core concerns.
[25] In my view, the allegations of this matter and the criminal history of Mr. Brooks requires, at a minimum, a plan that must include a high level of supervision and support. The Toronto Bail Program and ankle monitoring being offered as Mr. Brooks plan, would only have limited deterrent value. Also, Mr. Brooks has demonstrated that he is unable to follow his two previous probation orders. Overall, the plan lacks adequate supervision and support from family, friends, and the community at large.
[26] Based on the strength of the allegations before me, and the highly foreseeable gaps in his plan of supervision, I find that there is a substantial likelihood of Mr. Brooks committing a criminal offence, and endangering the safety of the public, particularly the complainants in this matter, if he were to be released on the plan as proposed.
[27] For these reasons, I find that the Crown has met its onus on the secondary ground concerns.
Tertiary Grounds
[28] Regarding the tertiary ground concerns raised in accordance with s.515(10)(c) of the Criminal Code, I must consider whether Mr. Brooks detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances of the offence, and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.
[29] The factors I considered under the tertiary grounds include all of the circumstances, in addition to the following four enumerated grounds: the strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the offence and the potential for a lengthy term of imprisonment.
The Strength of the Prosecution’s Case
[30] I acknowledge that Mr. Brooks is presumed innocent, until proven guilty and that the strength of the Crown’s case is the strongest at this stage and that may change prior to trial. However, the case against Mr. Brooks is compelling, given the strong Crown case and numerous witnesses in these matters.
The Gravity of the Offence
[31] As previously stated within the secondary ground analysis, the main stabbing incident, was a violent, unprovoked, attack on an innocent unarmed person, in broad daylight, in front of countless witnesses, which was also captured on high-definition video. This was a particularly heinous act of violence. In addition, the lengths Mr. Brooks allegedly went to in tracking down and criminally harassing the female complainants, whom Mr. Brooks had previously been convicted for assaulting, is very alarming. There are many aggravating factors in this matter, such as the vulnerability of the complainants, the nature of the attack on an innocent unarmed man, in the presence of the public, and Mr. Brooks complete disregard for the law and his probation orders.
The Circumstances Surrounding the Offence
[32] The allegations all appear to revolve around the previous sexual exploitation and sexual assault of the female victims, culminating in the knife attack on the male victim at the barber shop. The alleged criminal harassment and eventual knife attack all appear deliberate and calculated by Mr. Brooks.
The Potential for a Lengthy Term of Imprisonment
[33] The charge of attempted murder carries a potential sentence of life imprisonment. During the bail hearing evidence was led by the parties that indicated that the potential range of sentence for the charges in this matter, would likely range from 14 years to life. As such, there is a potential for a very lengthy term of imprisonment.
Other Relevant Circumstances
[34] As discussed in greater detail within my analysis under the secondary grounds, Mr. Brooks has a lengthy and violent criminal record. He was also subject to two probation orders at the time of the alleged knife attack.
[35] The stabbing victim suffered three stab wounds which required at least two surgeries. I understand that victim has since recovered from his physical wounds and only spent a few days in the hospital. The victim would likely have suffered more serious injuries or perhaps death, had someone not interrupted the attack.
[36] It is also alleged that Mr. Brooks is criminally harassing the two females that he was previously convicted for assaulting, which is very alarming. At least one of the complainants has told police that she fears for her safety.
[37] I should note that I have considered the letter provided by Defence Counsel with respect to Mr. Brooks taking university courses while at the Toronto East Detention Centre. This is certainly encouraging, but unfortunately, this issue is of limited value when considering the totality of the alleged circumstances of the matters and more specifically, the risks associated.
[38] I also heard submissions with respect to COVID being a factor in Mr. Brooks continued incarceration. I take judicial notice that COVID is a serious medical emergency. However, no evidence was offered with respect to Mr. Brooks underlying health concerns, which would increase his risk of getting COVID. I am also mindful of Mr. Brooks’ rights with respect to his bodily integrity. Individuals certainly have the right to decide whether to take a vaccine. However, given the current world crisis regarding COVID and the efforts being undertaken both within and outside the detention centre to manage the risks associated with COVID, not taking a vaccine is a voluntary risk assumed by Mr. Brooks. For these reasons, I again, have put little weight on this issue, when viewing this issue against the totality of the alleged matters before this court.
[39] I also heard submission with respect to the delays in this matter. Based on the parties’ submissions there appear to be significant delays associated with Mr. Brooks’ replacement of counsel, availability of court resources, which were also subject to the COVID-related situation. This is unfortunate, but this is Mr. Brooks’ bail hearing and I am of the belief these issues must be appropriately considered as part of Mr. Brooks’ trial and potential sentencing or possibly a separate application for delay.
[40] Overall, the allegations in these matters are serious. The knife attack was a heinous act, certainly repugnant to the community. The ongoing harassment of the two female victims, who were previously assaulted by Mr. Brooks, is extremely troubling.
[41] Based on the strength of the Crown's case in these matters, and Mr. Brooks' lengthy and violent record, I find that to release him on such a weak plan of release would bring the administration of justice into disrepute, based on the extreme violence involved, and the revictimization of women for whom he has been previously convicted.
[42] For the reasons set out, I find that the Crown has met its onus for the tertiary ground concerns.
Member of a Vulnerable Population (s. 493.2 of the Criminal Code)
[43] Regarding the submissions with respect to Mr. Brooks being a member of a vulnerable population that is over-represented in the criminal justice system and that is disadvantaged in obtaining release in accordance with s.493.2 of the Criminal Code, the parties agreed that Mr. Brooks, being a black male, is a member of a such a vulnerable population. I must also take judicial notice that black males are significantly over-represented within the criminal justice system.
[44] The Crown provided me with caselaw about how s.493.2 should be considered within a s.515(10) of the Criminal Code analysis. The caselaw indicates that s. 493.2 is a consideration under the grounds of concern under s.515(10). If there is a viable alternative to detention, then detention should not be ordered. Conversely, if the just cause concerns enumerated in s. 515(10) cannot be attenuated, then detention is necessary. Section 493.2 of the Criminal Code signals to jurists their obligation to take into consideration systemic barriers to vulnerable populations in securing a release, and the specific and general consequences that flow therefrom. I have taken this obligation very seriously when coming to my decision.
[45] Based on the strength of the Crown’s case, the unprovoked violence involved and Mr. Brooks serious criminal record, noting the overall weakness of the proposed plan, I have grave public safety concerns.
[46] I have considered Mr. Brooks’ membership in a vulnerable group as defined by s. 493.2 of the Criminal Code specifically, and the importance of the issue of overrepresentation of vulnerable populations within the criminal justice system generally. Notwithstanding, after considering the allegations, the evidence, the submissions of the parties, the relevant caselaw, and all of the circumstances before me, I conclude that the Crown has met its onus and Mr. Brooks will be detained in custody on the secondary and tertiary grounds.
[47] I would ask that the clerk of the court sign any related documents on my behalf, pursuant to s.3.1(2) of the Criminal Code.
Released: September 28, 2021 Signed: Justice of the Peace Robert Brain