COURT FILE NO.: DR(P) 2295/12
DATE: 20121210
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Natalie Brown
BEFORE: Baltman J.
COUNSEL: G. Logan for the Applicant, Natalie Brown
S. Caponecchia for the Respondent Crown
E N D O R S E M E N T
[1] The applicant, Natalie Brown, seeks release pending trial. She is currently detained at the Vanier Centre in Milton, Ontario, facing three charges of robbery with a firearm under s. 344. At her bail hearing on July 31st, 2012, Justice of the Peace Budaci ordered her ongoing detention. She now brings an application for review of that order under s. 520 of the Criminal Code. It is undisputed that pursuant to recent amendments to the Code there is a reverse onus on these charges.
[2] After hearing evidence and submissions from counsel, I dismissed the application, with reasons to follow. These are my reasons.
Factual Background
[3] The applicant is 30 years old and resides in Toronto. She is single and has four children (fathered by four different men), aged 12, 10, 6 and 21 months. Her youngest child suffers from a kidney ailment and requires extra care. Before her arrest on these charges she was unemployed and living in an apartment with her children, on social assistance. She has no criminal record.
[4] Since her arrest the two older children have been living with their respective fathers, while the two younger ones are residing with the applicant’s friend, Maria DaCosta, who is also one of the proposed sureties.
[5] The three charges before the court arise from three separate incidents on the night of July 19, 2012. The first complainant on the information was allegedly approached at a bus stop by a black male named Revington Bailey. Bailey is a co-accused on these charges and was romantically involved with Ms. Brown when these events occurred. Bailey allegedly displayed a handgun underneath his sweater and then robbed the victim of his cellphone. Bailey then fled the area to a waiting vehicle.
[6] Approximately one half hour later and 8 km. away, a woman waiting at a bus stop was approached by a black male who demanded her cellphone. She resisted and after a physical struggle the man fired a gun into the ground. She then released her cell phone and he ran off to a waiting vehicle.
[7] The third incident occurred approximately 20 minutes after the second, and 12 km. away. A man walking on the sidewalk and speaking on his cell phone was punched in the head from behind by a stranger. The phone dropped and the two men struggled. The assailant produced a gun, pointed it at the victim, and appeared to pull the trigger (the victim heard a clicking sound), but the gun did not discharge. The victim gave up the struggle, and watched a man alleged to be Bailey run into a vehicle parked nearby. He was able to identify the license plate number and reported it to the police, who later determined that Ms. Brown is the registered owner of the vehicle. Police found the vehicle outside Ms. Brown’s residence, seized it, and had it towed away pending a search warrant.
[8] At approximately 3:00 a.m. on July 20th Peel police left a message on Ms. Brown’s voicemail advising her vehicle had been seized because it was involved in an offence, and asked to speak with her. At approximately 9:00 a.m. she contacted Toronto police and reported that her car had been stolen. Later that day she urged the property manager in her building to conceal from the police any video surveillance from the previous night.
[9] After the police obtained a warrant they searched her vehicle and discovered inside a letter dated July 19th, 2012, from Bailey’s employer, advising he was terminated as of that date. They also found bus tickets similar to the ones reported stolen by the second victim, and were able to trace the serial numbers on them to the location and date of purchase identified by the victim.
[10] The applicant provided a statement to police that was largely exculpatory; however, although she initially maintained that her car was stolen, she eventually advised police that Bailey, her boyfriend at the time, was driving her vehicle on the night of the robberies.
[11] Bailey was arrested on July 27th and detained in custody after his initial bail hearing. Ms. Caponecchia advises that at a subsequent bail review the presiding judge was prepared to release Bailey into a form of “house arrest”, but under very strict conditions; however, his sureties were unable to commit to the necessary level of supervision and backed out. Bailey therefore remains in detention. His trial is set for four days beginning April 29, 2013, and the applicant’s trial, also for four days, is scheduled for April 12, 15, 16 & 17, 2013.
[12] At the initial bail hearing the applicant proposed her friend, Maria DaCosta, as a surety. The plan then was for Ms. DaCosta to provide supervision but not reside with the applicant. In denying bail, J.P. Budaci emphasized both the secondary and tertiary grounds. On the secondary grounds he opined that although Ms. DaCosta was a straightforward witness, her physical ailments and apparent memory loss raised doubts about her ability to be an effective surety. The J.P. also questioned whether she had sufficient influence and control over the applicant to supervise her effectively. He stated that the plan required a “residential component.”
[13] J.P. Budaci further noted that although the tertiary ground should be used in only the rarest of circumstances, in this case because the offences were very serious with a potentially lengthy period of imprisonment, involved a firearm, and the Crown apparently had a strong case, detention was necessary to maintain confidence in the administration of justice.
[14] The applicant now proposes a plan of release whereby she would continue to reside in her home, with her four children, but be supervised not only by Maria DaCosta but also by Ms. Keva Smith. Both women are personal friends of the applicant and testified before me.
[15] Ms. Smith is a single mother living with her three children, ages 10, 8 and 6. Also living with her, on a temporary basis, is her cousin who is visiting from Jamaica. The plan is for Ms. Smith to leave her children in the care of her cousin, in Ms. Smith’s home, and for Ms. Smith to then move into the applicant’s home, and live there with the applicant and her four children. Additional supervision will be provided by Ms. DaCosta.
Analysis
1. Errors in the J.P.’s Reasons
[16] The defence maintains there is no reliable evidence to find that a firearm was used in the commission of the offences, and therefore little if any basis for the J.P. to factor that into the tertiary or secondary grounds. Defence notes in particular the absence of any forensic evidence, such as shell casings.
[17] I disagree. There is certainly, at least at this stage, some strong evidence to suggest a firearm was in fact used. The second victim reported shots being fired; the third observed a gun pointed at him, and heard what he thought was an attempt by the assailant to fire it.
2. Material Change in Circumstances
[18] The major improvement in the proposed surety arrangement is the addition of Ms. Smith, who would presumably live with the applicant and her four children in the applicant’s home.
[19] I sincerely question how knowledgeable and effective a surety Ms. Smith would be. Although she describes herself as a close friend of the applicant, she does not seem to know her well. Ms. Smith did not see the applicant at all during the six months before her arrest; they only spoke on the phone. Beyond knowing that the outstanding charges concern a robbery, she has no idea what the allegations are or the circumstances involved. She has not discussed with DaCosta any details of how they would, as between themselves, organize their responsibilities as sureties. Most importantly, I find it implausible, if not incredible, that she would leave her own children with her cousin – who is visiting only temporarily from Jamaica – in order to move into a friend’s home and look after her children for several months.
[20] The Defence argued that to the extent there are any gaps in Ms. Smith’s ability to supervise full-time, Ms. DaCosta would have it covered. I found Ms. DaCosta to be a sincere and well motivated woman. It appears she has also shown great kindness and care in looking after the applicant’s two youngest children, who are currently residing with her.
[21] However, good intentions do not necessarily make a good surety. Ms. DaCosta also has no idea what the specific allegations are concerning the applicant, beyond knowing they involve an alleged robbery. She appears to believe it is inconceivable that the applicant committed the crime alleged and, out of compassion for the applicant’s children, is prepared to risk her entire life savings of $2,000. From her testimony I gained no sense that she understands the gravity of the allegations against the applicant, nor does she appear to have the stamina or inclination to hold the applicant accountable for her behaviour. While she is undoubtedly a devoted caregiver to the children, I do not believe she can be an effective supervisor of their mother.
[22] I recognize the applicant has no criminal record and is the mother of four children. Fortunately, however, two of those children are now living with their respective fathers and the other two are, to all appearances, being well looked after by Ms. DaCosta. And these charges – involving three separate incidents of robbery with a firearm – are very serious. There is, at least at this stage, some compelling evidence implicating the accused.
[23] Moreover, beyond the commission of these offences, the applicant also allegedly attempted to mislead the police through a false report of a stolen vehicle, and then tried to persuade her building manager to conceal relevant evidence. Those additional factors, if true, suggest interference with the administration of justice. Finally, and most importantly, the proposed surety plan seems utterly unreliable.
[24] For all those reasons the applicant has not demonstrated any error in the J.P.’s reasons or persuaded me that there is a material change in circumstances. I therefore dismissed her application.
Baltman J.
DATE: December 10, 2012
COURT FILE NO.: DR(P) 2295/12
DATE: 20121210
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Natalie Brown
BEFORE: Baltman J.
COUNSEL: G. Logan for the Applicant, Natalie Brown
S. Caponecchia for the Respondent Crown
ENDORSEMENT
Baltman J.
DATE: December 10, 2012