COURT FILE NO.: CRIM 2164/12

DATE: 2012-10-11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Lennox Tyler RENWICK

Defendant

T. Powell, for the Crown

D. Smith, for the Defendant/Applicant

HEARD: October 5, 2012

REASONS FOR JUDGMENT

Ricchetti, J.

[1] Mr. Renwick brings this application for a detention review.

History

[2] On March 4, 2010 Mr. Renwick was arrested on the following charges:

i. 4 counts of unlawfully confining Francesco Amendola, Stella Amendola, Luana Amendola and Christian Amendola;

ii. 4 counts of unlawfully assaulting with a weapon (a handgun) Francesco Amendola, Stella Amendola, Luana Amendola and Christian Amendola;

iii. 4 counts of pointing a firearm (a handgun) at Francesco Amendola, Stella Amendola, Luana Amendola and Christian Amendola;

iv. Unlawful possession of a weapon (handgun);

v. Endanger life with the discharge of a firearm (handgun);

vi. Use a firearm (handgun) in a careless manner;

vii. Possession of a firearm (handgun) without a license;

viii. Possession of a loaded prohibited firearm without a license;

ix. Entering the Amendola house with intent to commit an indictable offence;

x. Possession of a firearm (handgun) knowing the serial numbers had been removed;

xi. Storing a firearm (handgun) in a careless manner;

xii. Possession of a prohibited firearm with readily accessible ammunition without a license;

xiii. Possession if a firearm (AK47) without a license;

xiv. Storage of a prohibited weapon (AK 47) in a careless manner;

xv. Storage of ammunition in a careless manner;

xvi. Unlawful possession of a controlled substance (heroin);

xvii. Unlawful possession of a controlled substance (cocaine);

xviii. Failing to comply with a Probation Order;

xix. Use a prohibited firearm (handgun) to commit a robbery;

xx. Use a firearm (handgun) through threats and violence to obtain property;

[3] On March 9, 2010, Mr. Renwick consented to his detention.

[4] On April 23, 2010 a bail hearing was held before Justice Wein. Justice Wein ordered the continued detention of Mr. Renwick on the secondary and tertiary grounds.

[5] On December 1, 2010 Mr. Renwick pleaded guilty to the discharge firearm with intent. There was to be a further plea on certain other charges and a withdrawal of certain other charges. The matter was adjourned to January 13, 2011 for plea and sentencing.

[6] On January 13, 2011, Mr. Renwick discharged his counsel and retained new counsel. Mr. Renwick decided to bring an application to strike his plea. Because of scheduling issues, the application to strike was adjourned on numerous occasions and was to be heard on March 22, 2012. The Crown consented to setting aside the guilty plea.

[7] The preliminary inquiry was heard on March 28, 29 and 30 and August 15 and 22, 2012.

[8] Mr. Renwick was committed to stand trial on the above counts.

[9] The trial is scheduled for March 2013.

The Allegations

[10] In February 2010, Mr. Renwick and Mr. Laczko rented space from Mr. Francesco Amendola’s garage/storage unit on Trafalgar Road. A dispute arose between Mr. Renwick and Mr. Amedola regarding the use of Mr. Amendola’s garage/storage facilities. However, Mr. Renwick’s girlfriend’s car remained at Mr. Amendola’s storage facility for some automotive work.

[11] On March 3, 2010, Mr. Renwick asked for his girlfriend’s car. A meeting time was agreed to for 11pm at the garage/storage facilities. Mr. Amendola failed to attend.

[12] At 12:00 am, Mr. Amendola was awoken at his home on Bristol Road West to banging on his door. When the door was opened, Mr. Renwick was there with another masked male. Mr. Amendola and his wife, Stella Amendola were there.

[13] Mr. Renwick had a loaded handgun in his hand. Mr. Renwick entered and started to hit Mr. Amendola with the loaded handgun and started to punch and kick him demanding the return of his girlfriend’s car.

[14] Stella Amendola attempted to leave. However, Mr. Renwick grabbed her and threw her against the wall, holding the handgun against her head.

[15] Mr. Renwick returned to Mr. Amendola who was by then on his knees. Mr. Renwick fired the handgun into the floor next to Mr. Amendola. The bullet went through the floor lodging into a desk in the basement.

[16] Mr. Amendola was badly beaten by Mr. Renwick.

[17] The Amendola’s children, Luana (10 years old) and Christian (8 years old), who had been sleeping upstairs, were awaken. Stella Amendola went upstairs to tell the children to stay in their rooms and be quiet. However, Mr. Renwick followed her upstairs. Mr. Renwick grabbed Luana, held the gun to her and told her to shut up. Mr. Renwick brought Luana downstairs.

[18] Mr. Renwick returned upstairs to get Christian. Mr. Renwick grabbed Christian by the hair and threw Christian down the stairs. A clump of Christian’s hair came out through this violence.

[19] Mr. Renwick refocused his attention on Mr. Amendola and getting his girlfriend's car back. Mr. Renwick asked Mr. Amendola whether he wanted Mr. Renwick to kill his children.

[20] Somehow, Mr. Amendola was able to run outside. Mr. Renwick and the masked person ran after him. The police then arrived.

[21] Mr. Renwick ran back to the house, broke the window and got inside.

[22] Fortunately for all concerned, Mr. Renwick left shortly thereafter in his vehicle.

[23] On March 4, 2010 the police went to Mr. Renwick’s home to arrest him. They searched the home and found an AK 47 with ammunition in the ceiling near Mr. Renwick’s bedroom.

[24] The masked person was arrested and took the police to a concealed place in a tree where the police found the handgun Mr. Renwick had used. The handgun is a semi-automatic pistol. It was loaded but had a bullet jammed in the chamber. The serial number had been removed.

[25] The police also found in Mr. Renwick’s vehicle a small quantity of heroin.

[26] There was considerable corroborating evidence including forensic evidence regarding the events described above. The masked person was apprehended and identified Mr. Renwick.

[27] Mr. Renwick has a prior 2008 conviction for unauthorized possession of a prohibited or restricted weapon.

The Defence Position

[28] The Defence acknowledges this is a reverse onus detention review.

[29] The Defence submits the material change is that Mr. Renwick has been in custody for approximately 2 ½ years.

[30] The Defence also submits that Justice Wein erred in principle in detaining Mr. Renwick on the secondary and tertiary grounds.

The Defence Plan of Release

[31] Mr. Renwick has a supportive family. His mother, father and sister have pledged $325,000 to secure his release on essentially house arrest.

Analysis

[32] In R. v. Reid, [2000] O.J. No. 4138, Justice Hill stated the following at para. 7:

A detention review pursuant to s. 520 of the Code is not a de novo hearing. The applicant for review must establish an error in principle in the reasoning of the show cause justice and/or a material change in circumstances since the original proceedings. I am satisfied in this case that the applicant has established, on balance, both error and changed circumstances.

[33] Therefore, the onus is on Mr. Renwick to establish either:

a)There has been a material change in circumstances since the hearing before Justice Wein, or

b) Justice Wein committed an error in principle.

Part 1 - Material Change

[34] It is not every change which entitles the Defence to a fresh re-consideration of bail.

[35] In The Law of Bail in Canada, at page 8, Justice Trotter stated that the change in circumstances must be “of such magnitude that the order of the lower court can no longer stand”.

[36] The Defence relies on the extensive time Mr. Renwick has remained in custody as the material change. The Defence submitted no authorities to support the submission that delay in custody, by itself, may constitute material change. I do note that there are a number of authorities which comment that delay while an accused is in custody is a factor to be taken into account on a detention review. See R. v. Raza, [2007] O.J. No. 2436 (Sup. Ct.), R. v. Mohamed, S.C.J. Ont. (unreported) December 20, 2007, R. v. Kerschner, [2006] O. J. No. 4528 (S.C.J.) .

[37] The difficulty the Defence finds itself is that an accused cannot be the cause or even a significant cause of the delay and later rely on the delay to establish a material change on a detention review. The extent and circumstances of the delay must be carefully reviewed to determine how significant, if at all, this is a factor in the court's determination whether continued detention is justified.

[38] A review of the history in this matter shows that a considerable amount of the delay is attributable to Mr. Renwick. After his guilty plea in December 2010 the matter came back before the court on January 13, 2011. Mr. Renwick chose to discharge his counsel. The matter was adjourned to February 3, 2011. Mr. Renwick’s new counsel brought an application to strike Mr. Renwick’s guilty plea. Given scheduling issues (including those of Mr. Renwick's new counsel) the application to strike was adjourned to June 20, 2011. On June 20, 2011, the application couldn’t proceed because the Defence had not filed an affidavit from previous counsel. The application to strike was adjourned to November 2, 2011. On November 2, 2011 the matter couldn’t proceed as legal issues arose regarding privilege and scope of cross examination. The application to strike was re-scheduled for March 22, 2011 just days before the scheduled preliminary inquiry on the remaining charges. Justice McLeod encouraged a resolution of the application to strike, preferring that all the counts proceed to trial rather than dealing with the application to strike. The Crown then consented to the application and the preliminary inquiry started in March 2012. The preliminary inquiry would have been completed in March 2012, however, Mr. Renwick sought, as is his right, to have Luana and Christian testify at the preliminary inquiry. The Crown had not intended to call the Amendola children at the preliminary inquiry. As a result, the completion of the preliminary inquiry was delayed until August 2012 for that evidence to be heard.

[39] One other factor relating to delay deserves mentioning. This is not a situation where, if the allegations are proven at trial, the time spent in pre-trial custody will exceed any custodial term which the court might impose. If convicted, given the nature of the offences, it is highly likely a custodial term would greatly exceed the 2 ½ or 3 years pre-trial custody.

Conclusion on Material Change

[40] Given that much of the delay in this matter is attributable to Mr. Renwick, I am not persuaded delay, by itself, in getting this matter to trial constitutes a material change in these circumstances.

[41] Let me briefly deal with the proposed plan of release. The Defence did not argue that the proposed plan of release was a material change in circumstances. I agree. The proposed plan before Justice Wein was essentially 24 hour, 7 days a week house arrest with Mr. Renwick always being in the presence of one of his sureties. That is essentially the same plan before this court on this detention review. As a result, I would not have found that the proposed plan of release was a material change.

Part 2 - Error in Principle

[42] Let me now move on to Defence's submission that Justice Wein erred in principle.

[43] While speaking highly of Mr. Renwick’s family support and the plan of supervision, Justice Wein determined that continued detention was necessary on the secondary and tertiary grounds. The onus is on the Defence to demonstrate that Justice Wein committed an error in principle.

i) Secondary Ground

[44] S. 515 (10) (b) of the Code provides as a ground for detention:

(b) where the 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 the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice;

[45] Justice Wein acknowledged that the plan was a “sold proposal for virtual house arrest”. However, Justice Wein expressed serious concerns regarding

a)Mr. Renwick's extensive contact with the police, including previous instances where there was a diversion; and

b) Despite strong family support, Mr. Renwick appeared independent of this support by disregarding their support and advice.

[46] Justice Wein concluded:

In this case, given the seriousness of the offences and the past demonstration by Mr. Renwick that he has not been able to accept direction in mind and control from others who have his best interest, I am not satisfied that the public would be appropriately protected, including the victims, if release were to be ordered notwithstanding the best efforts of the proposed sureties.

[47] I am satisfied the concerns expressed by Justice Wein were a relevant and continue to be a concern to this court.

a)Mr. Renwick’s parents have done their best to ensure that Mr. Renwick avoid any conduct which is or could be perceived as criminal activity. It is clear that his parents’ directions have not had much, if any, impact on Mr. Renwick;

b) Mr. Renwick's parents have had little knowledge of Mr. Renwick’s activities involving violence, firearms or drugs which are at the heart of these allegations. Mr. Renwick's parents continue to have little knowledge of Mr. Renwick's prior activities. Suggesting that the door to his room will be removed will not assist in uncovering the types of activities which are at the heart of these allegations;

c)Mr. Renwick's parents have strong support for him. To some extent they have some distrust for the police as demonstrated by their evidence that perhaps the police have “planted” the evidence or “set him up”. This leads to the question whether they would ever call the police, who may have set up Mr. Renwick, if there was a breach of bail.

[48] These issues combined with the allegations which include;

• the horrific nature of Mr. Renwick’s violent conduct,

• the lack of any provocation or substantive reason for Mr. Renwick’s violent conduct that evening,

• the casual use of a firearm during the course of his violent outburst,

• the access to other firearms, including an AK47 with ammunition,

• the lack of any hesitation to harm and threaten to kill young innocent children who happened to be at home,

• the above behaviour in combination with heroin and cocaine use, and

• the risk to the Amendola family if Mr. Renwick is released after such a violent confrontation,

it was not unreasonable for Justice Wein to conclude that Mr. Renwick’s continued detention was necessary for the protection of the public and the victims.

[49] While there was no direct evidence regarding the safety issues regarding the Amendola family, it is understandable that they would be concerned for their safety regarding Mr. Renwick’s release.

[50] Given the violent actions of Mr. Renwick to the entire family including the children, the drugs, the firearms (and the types found), and the very strong Crown case, it was certainly open to Justice Wein in the circumstances of this case to conclude that detention was necessary for “the public interest and protection or the safety of the public”.

[51] The Defence took issue with Justice Wein's description that Mr. Renwick was "out of control". In my view, this was an apt description when the genesis of Mr. Renwick's behaviour was Mr. Amendola failing to make a meeting by one hour or failing to return Mr. Renwick's girlfriend's car. To embark upon Mr. Renwick's violent behaviour that night can only be described as "out of control".

[52] The Defence also submits that Mr. Renwick is now a different person having spent such a considerable time in custody. I am not persuaded there is any independent evidence to support this submission. Such comments by Mr. Renwick's mother and father that, when they speak with him in custody, he appears to be a different person, is not sufficient evidence for this court to conclude the protection and safety of the public and the victims is no longer a serious concern if Mr. Renwick were to be released.

[53] These same concerns remain at this time. Continued detention continues to be justified under the secondary grounds.

ii) Tertiary Ground

[54] S. 515 (10) (c) provides the following ground for detention:

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

i. (i) the apparent strength of the prosecution’s case,

ii. (ii) the gravity of the offence,

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

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

[55] The Defence candidly admits:

• the Crown’s case is very strong;

• the charges are very serious;

• the circumstances of the offences are “horrific”;

• a firearm was used; and ;

• Mr. Renwick, if convicted, will be committed to a lengthy term of imprisonment.

[56] The four enumerated factors in the tertiary ground all appear to favour continued detention.

[57] However, the Defence submits that Justice Wein failed to consider the presumption of innocence and Mr. Renwick’s constitutional right to bail (regardless of the offences with which Mr. Renwick is charged). I am not persuaded that Justice Wein failed to consider these matters. These are matters which are foremost in the minds of all judges in a detention hearing. At this point and before Justice Wein, the allegations are just that – allegations – not proven.

[58] There is no doubt, Mr. Renwick has a constitutional right to bail – in this case, if he can establish that his continued detention is not justified having regard to the provisions of the Code. The Defence does not address (on this ground or the secondary ground) that this was a reverse onus detention review before Justice Wein and remains a reverse onus detention review. It is for Mr. Renwick to establish that his continued detention is not justified under the grounds set out in s. 515 (10).

[59] As stated above, the Defence candidly concedes the enumerated four factors in s. 515 (10) (c) favour continued detention. The Defence places great reliance on the statements by Cronk, J.A. in R. v. LaFramboise, 2005 CanLII 63758 (ON CA), [2005] O.J. No. 5785 (C.A.). There are several statements in LaFramboise which are instructive in this case:

[27] On this review hearing, the issue is whether the appellant has met his burden of demonstrating that his detention pending trial is not necessary in order to maintain confidence in the administration of justice within the meaning of s. 515(10)(c) and the developed jurisprudence. The applicable test was enunciated in Hall as follows (at para. 41):

At the end of the day, the judge can only deny bail if satisfied that in view of these factors [the factors identified in s. 515(10)(c)] and related circumstances a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.

[39] In this case, the “something more” is the circumstances surrounding the commission of the crime. They are egregious. As the bail judge observed, it appears that Bender was “stripped naked, beaten, shot at and left naked in the woods where he froze to death”. But this factor must be considered with what seems to be the appellant’s limited involvement and the question of the strength of the Crown’s case.

(emphasis added)

[60] Like LaFramboise, the allegations in this case are egregious – home invasion, use of a firearm, discharge of a firearm, use of a firearm to threaten children and physical violence against adults and young children. Unlike, LaFramboise, Mr. Renwick’s involvement was not limited - he was the instigator and primary person committing the horrific violence. Unlike, LaFramboise, there is no question regarding the strength of the Crown’s case - there are no known blemishes in the Crown's case.

[61] I agree with Justice Wein this is one of those circumstances where bail should be denied on the basis of maintaining confidence in the administration of justice. Put another way, a reasonable member of the community would be satisfied that:

Where, as here, the crime is horrific, inexplicable and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.

See R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 (S.C.C.).

[62] I am not persuaded that the time Mr. Renwick has spent in custody is a significant countervailing factor in this case given that much of the delay is attributed to him.

[63] In my view, an informed member of the public, aware of all the circumstances of this case including the presumption Mr. Renwick is innocent, his constitutional right to bail, the delay in getting to trial and that trial is 5 months away, would nevertheless lose confidence in the administration of justice if Mr. Renwick were to be released.

[64] Continued detention in these circumstances is justified under the tertiary grounds.

Conclusion on Error in Principle

[65] I am not persuaded that Mr. Renwick has established any error in principle in Justice Wein’s determination that he remain in custody pending trial.

Conclusion on Defence Application

[66] Even if I were to proceed to hear this matter de novo, for the reasons set out above, I am satisfied that Mr. Renwick has not discharged the onus on him to establish that his continued detention is not justified.

[67] The Application is dismissed.

Ricchetti, J.

Released: October 11, 2012

COURT FILE NO.: CRIM 2164/12

DATE: 2012-10-11

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Lennox Tyler RENWICK

REASONS FOR JUDGMENT

Ricchetti J.

Released: October 11, 2012