COURT FILE NO.: CR-13-5134-00BR
DATE: 20130626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: )
HER MAJESTY THE QUEEN ) Laurie Gonet and Michaly Iny, for the
) Crown
Respondent )
-and- )
HELENA GONZALVES ) C1n·istopher O'Connor, for the
) Defendant
Defendant/Applicant )
) HEARD: June 20, 2012,
) at Toronto, Ontario
Michael G. Quigley J.
Reasons For Ruling
Re: Judicial Interim Release
[1] Helena Gonzalves is charged with second-degree murder. Her co-accused is Eustache Economou. They are charged with having murdered Kamalall Singh.
[2] On this application, Ms. Gonzalves asked the court under section 522 of the Criminal Code to permit her judicial interim release pending her trial. In this matter, because the charge she faces is one of second-degree murder and is a listed
s. 469 offence, cetiainly one of the few most serious offences known to our law, the onus rests upon her counsel, Mr. O'Connor, to demonstrate to the comi in
bringing this application that her continued detention in custody is not justified. Normally, an accused person is required to be released pending their trial unless the Crown shows that their detention in custody is justified. This case, being a reverse onus case, reverses that burden of persuasion. It is the defence who must persuade the couti that the continued detention of Ms. Gonzalves is not justified.
[3] The murder is alleged to have taken place in the late evening and early morning hours of Tuesday, March 5 and Wednesday, March 6, 2013. All three of these patties had been drinking extensively and excessively. There had been a prior romantic and sexual relationship between Mr. Singh and Ms. Gonzalves going
back some six years, but that relationship was coming to an end. There had been numerous police occurrence repotis arise out of their relationship over the years, and it seems plain that it would not be an overstatement to describe that relationship as abusive. Then Ms. Gonzalves met Mr. Economou on the Thursday of the previous week, Febmary 28. She quickly developed a brief and very new relationship with him that involved sexual relations.
[4] The following Tuesday, Ms. Gonzalves and Mr. Singh were captured on the video cameras at the local LCBO store purchasing alcohol. That night, a great deal of alcohol would appear to have been consumed. There is some evidence that Ms. Gonzalves and Mr. Singh squared off against each other in what might have developed into a knife fight. However, fighting broke out between Mr. Singh and Mr. Economou. It was the injuries sustained by Mr. Singh arising out of that fight that led to his death. The beating of Mr. Singh may have taken place in several sequential instalments, as a fight broke out, he was beaten, fell asleep, and then got up to fight again, and this scenario repeated itself.
[5] Mr. Singh sustained severe injury and trauma to his face and neck as a result of the beating that was can·ied out on him. He evidently died of asphyxiation caused by the swelling up of the tissue around his airway that was caused by the beating. Stated plainly, he was severely beaten to the point of being unconscious, his airway swelled up, he could not breathe, and so it appears that he effectively suffocated as a result of those injuries.
(6] The post-mortem report indicates numerous traumatic injuries, and lacerations and bruises, but it also states that if Mr. Singh had received medical help, relatively soon after the injuries were inflicted, he would have been saveable. The evidence showed that things would have started to go badly for him in terms of his prospects for survival sometime between 30 minutes and three hours after the assault took place.
[7] There is evidence of a very considerable amount of blood in the one room bachelor apartment where these events occurred. Exhibits 1, 2, and 3 are contact sheets of photographs taken by the forensics team in that apartment. They show a lot of blood.
[8] Moreover, other evidence including bed sheets stuffed into garbage bags had been soaked with blood and rinsed out. A sweater in which this accused had been seen and recorded entering a local LCBO outlet to purchase alcohol on the afternoon preceding the assault, was found in the bathroom of the apatiment soaking wet, plainly as a result of having been rinsed, presumably to try and get the blood out of it. There were bloodstains on the jeans that Ms. Gonzalves was wearing and in other locations.
[9] The forensic spray used by the police officers showed that a great deal of blood had been on the floor of that apatiment before being cleaned up presumably in the early moming hours before the police arrived.
[10] The police arrived after being called on 911 by a neighbour at 8 o'clock the next morning. Ms. Gonzalves was first interviewed at about 11:30. It was noted by the police officers that both accused had been drinking. As it turned out, the toxicology report on Mr. Singh showed that he had a blood-alcohol level of about 300 mL per litre of blood, obviously a very high reading.
[11] Over the course of the day, following her initial statement and during two subsequent statements, Ms. Gonzalves changed her story. She went from being somebody they regarded as a witness first thing on Wednesday morning to a person of interest by Wednesday aftemoon, after they had obtained a statement from Mr. Economou, to being arrested and charged as a co-accused with second degree murder at 6 o'clock that evening. There are certainly important variances in the statements she gave as that day progressed, and she effectively went from being a person who was only loosely associated to having a much closer involvement in the events su!1'ounding and after the beating from which he died was inflicted on Mr. Singh.
[12] In his statements to the police, Mr. Economou said that Ms. Gonzalves did not inflict any blows or cause any injuries to Mr. Singh. However, as noted, there was also evidence that Mr. Singh and Ms. Gonzalves may have squared off with each other each holding knives earlier in the evening, both intoxicated, before Mr. Economou intervened and before the blows were stluck to Mr. Singh. It was also relevant to the police and their decision to charge her that Ms. Gonzalves appeared
- 4-
to have been involved in the deliberate clean-up of the scene after Mr. Singh was beaten.
[13] Even though this is a reverse onus application brought under section 522 of the Code, it is still to be determined by reference to the three factors set out in ss. 515(10). Those are colloquially referred to as the primary, secondary and tertiary grounds. The primaty ground arises where the detention is necessary to ensure that the accused person will be in attendance in court in order to be dealt with and according to law. That first factor addresses what is refetTed to as "flight risk". It addresses the risk of the person vanishing into the ether, so to speak, if they are permitted to be released from custody. There is no risk whatsoever in this case on the primary ground, and the Crown acknowledges that the primary ground is not in play.
[14] The secondary ground addresses the circumstance where the continued detention of the accused is necessmy for the protection or safety of the public, having regard to all of 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. I am satisfied that there is no risk on this, the secondary ground, either (i) on the basis that there is no evidence that Ms. Gonzalves is an inherently violent person, or one inclined toward violence, and noting that she has no prior criminal record, or (ii) because the plan of release referred to below which was put forward by her family and which involves her sister Angela Molinaro and her husband Robert, and her sister Marie Ross and her husband Donald being her principal sureties, effectively amounts to house atTest inside her sister Angela's house, and (iii) because the Crown acknowledges as well that the secondmy ground is not in play.
[15] That leaves the tertiary ground. A person will be kept in custody on the tertimy ground in circumstances where that detention is necessary in order to maintain confidence in the administration of justice having regard to all the circumstances, including (1) the apparent strength of the prosecution's case, (2) the gravity of the offence, (3) the circumstances smTOunding the commission of the offence, including whether a firearm was used, and (4) the fact that the accused could be liable, on conviction, for a potentially lengthy term of imprisonment.
[16] There is no evidence of a firearm having been used in these circumstances, and as such that obviously is not a factor that could play into the calculus. The other factors do apply, and they do require consideration.
- 5 -
[17] However, stated succinctly, the Crown's position is that (I) this was a honific crime, (2) that even if it is not second-degree murder relative to Ms. Gonzalves, it is at least manslaughter, and (3) the alleged severity of the post offence conduct of Ms. Gonzalves in allegedly lying about being involved in a cleanup, all are seriously aggravating factors that call for the continued detention of the accused. The Crown argues that reasonable members of the public would lose confidence in the administration of justice, having regard to all the circumstances, if Ms. Gonzalves were to be released.
[18] I do not intend to refer to all of the case law that has been decided relative to the tertiary ground, but it will suffice for the moment to say that the te1tiary ground is not meant to be a panacea and an ever-applicable rationale of universal application to ensure the continued detention of accused persons in circumstances where the primmy and the secondmy grounds are not engaged. This follows because the presumption under our law, subject only to the onus of persuasion discussed above, is that persons who were awaiting trial ought not to be detained in custody except where the circumstances require it.
[19] Under the third ground, to phrase it relative to the manner in which the burden of persuasion arises in this case, it requires that Mr. O'Connor satisfy me that the maintenance of confidence in the administration of justice by members of the public does not require that Ms. Gonzalves continue to be detained. But, that does not alter the fundamental proposition that persons should not be detained in custody without just cause. In the case of s. 469 offences, it simply alters the burden of proof from a presumption of release to one of incarceration.
[20] Let me say first, relative to the plan that has been put forward by the
sureties, as I mentioned above and as I made clear to the parties last Thursday after the hearing, that I am satisfied that the proposed plan, with some tinkering as I discussed with counsel at the end of the hearing, is an appropriate plan that will ensure continued serious and disciplined supervision of Ms. Gonzalves pending her trial. It will ensure that she will constantly be in the company of the family members who are pledging a significant amount of surety to support their promise, and be watched by the numerous members of her fmnily who were in court for the hearing and who have indicated that they have her best interests at heart, but will act first as required by any terms of release imposed, including immediately contacting police authorities should Ms. Gonzalves deviate from the approved plan in any particular.
[21) They are willing to evidence that care and concern by being prepared to operate effectively as her jailers outside of a custodial institution pending her trial, but in circumstances where she will have the resources and suppott of her family and the resources and suppmt of Alcoholics Anonymous and other alcohol or drug treatment programs, which they have looked into and on which they have obtained information on ready availability near their home in Brampton, in order to try to get her tumed around and away from the consumption of alcohol which appears to have dominated much of her life over the past five or six years, and plainly played a big pmt in the circumstances surrounding the death of Mr. Singh.
[22] I am content that a surety of $100,000, without deposit, be taken from the five sureties Angela and Robe1t Molinaro, Marie Ross and Mario and Denise Gonzalves. That surety provides for more than adequate security to be at risk as a foundation for the obligations promised to the comt by the sureties. It is also a sufficiently large and important number to impress the accused, Ms. Gonzalves, with the extent to which her family members are prepared to put themselves out to suppmt her, running the risk of severe financial jeopardy to do so. I am satisfied that will focus her attention carefully on the critical impmtance of her adhering precisely and explicitly and without deviation with eve1y condition the comt would impose upon her as a term for her interim release pending trial.
[23] I am also content, having observed her sister, Angela Molinm·o, and her husband Robert, give their evidence as proposed sureties in this case that they will indeed regard their first obligation as having been made to this comt to enforce the terms upon which Ms. Gonzalves would be released, should that be the disposition decided on by the comt. Frankly, where the charges are so serious, as they are in this case, any deviation from that plan without the approval of the comt or official permission must immediately result in the relinquishment of even the limited supervised freedom that may be accorded to an accused person in such circumstances, if counsel is able to discharge the burden of persuasion.
[24] That brings me to the core of this application. That is the question of whether Mr. O'Connor has succeeded in persuading me that the continued detention of the accused, Elena Gonzalves, pending her trial on these ve1y serious
charges of second-degree murder is required in order to maintain the confidence of the public in the administration of justice.
[25] The Crown opposes this application on the basis that the crime was honific, as she says is evidenced by the blood shown in all the photographs, and that the offence is ve1y grave, certainly a description that is true of any second-degree
murder charge. More importantly, she says the position of this accused is not believable and that her varying statements following her detention on the moming after the death of Mr. Singh and as that day progresses leading to her arrest aggravate her situation. She describes her case as "decent" against this accused, if not for murder then cet1ainly for manslaughter. Whether this is true or not, however, will lie within the province of the jury, taking account of the whole of the evidence when the matter comes to trial, but certainly the existence of such allegations cannot on its own form the foundation to engage the tertiary ground for the continuing detention of this accused.
[26] In R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, the Supreme Com1 concluded that the tet1iary ground standard in subsection 515( 10) (c) provides an intelligible standard for the exercise of judicial discretion given the safeguards that it contains and its requirement that the perspective applied be that of a reasonable member of the community. In R. v. M (B.W.) (2007), 2006 31720 (ON CA), 223 C.C.C. (3d) 407 (O.C.A.), the Com1 of
Appeal concluded that while public fear and concern about safety are relevant
factors on the tet1iary ground, factors I note are not engaged here, they are not the only considerations. It instructed that the factors contained in the subsection as noted above, should be considered together with no single factor being regarded as dispositive.
[27] Even more helpful guidance can be found in R. v. Blind (1999), 1999 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.), where the Saskatchewan Comt of Appeal wrote that the test under subsection 515(10)(c) contemplates circumstances where "the sensibilities of the community are so affected that to have the person free in the community, notwithstanding the presumption of innocence, could lead to real harm to the administration of justice", or indeed to the defendant herself.
[28] This, of course, might be the circumstance ifthere were concern that the release into the community of an accused might engender vigilante action by members of the community which could result in danger to the defendant herself, or, more typically given the generally law abiding nature of our communities, in circumstances where the release of the person into the community would generate repugnance in the minds of reasonable members of the community and offend them having regard to the circumstances as a whole.
[29] However, counsel for Ms. Gonzalves vigorously asset1s that this is not a tet1imy ground case. First of all, he observes tellingly that the Crown does not rely on either the ftrst or the second grounds in support of the need for detention. But looking at the strength of her case, he disputes that it is even "a decent case"
relative to this accused, contends that the Crown's case is not strong, and that at its highest given an alleged absence of evidence that this accused ever touched the deceased, but simply participated in a cleanup of the apatiment after the event, gives rise to evidence that would support a charge of being an accessmy after the fact. Moreover, Mr. O'Connor asseiis that the co-accused, Mr. Economou, is a disreputable witness in respect of whom the jmy would have to be given a Vetrovic warning, so his commentary is of little value. He also emphasizes that the accused has no prior record and that the presumption of innocence, combined with these other factors, called for her release pending trial, albeit on stringent conditions.
[30] In considering the application of the tertimy ground in circumstances where the offence alleged is one of murder, it bears remembering that some murders are worse than others, and the mere fact that the crime charged is one of murder, does not necessarily engaged the tertiary ground. Justice Nordheimer makes this point in
R. v. Modesta, 2009 67002 (S.C.J.).
[31] In circumstances where an accused is a person who was prone to violence or there was a prior histmy of violence, even if the primaty or secondaty grounds are not engaged, it seems more likely that the sensitivities and sensibilities of a reasonable member of the community would more likely be engaged that a circumstance like this, where the only evidence before the court is that the
involvement of Ms. Gonzalves in any kind of offence of this nature is totally out of character, even under the influence of alcohol.
[32] Finally, Mr. O'Connor drew my attention to the reasons for judgment of Chief Justice McEachern of the British Columbia Comi of Appeal inR. v. Nguyen, 1997 10835 (BC CA), 1997 10835, 119 C.C.C.(3d) 269. I found that case to be very helpful here, in pmiicular pm·agraphs 20, 22, and 24-25, paragraphs that bear repeating in this case:
20 While murder is a heinous crime, the circumstances of some murders are much worse than others. The same may be said for other offences. For this reason, release in the less serious cases will not always harm public respect for the administration of justice while the opposite may be tme in the more serious cases. Where is the line to be drawn?
22 Moreover, as a great many offences involve some violence, the fact that there is violence cannot ofitselfbe conclusive against release as there would otherwise be very few cases where a detention order should not be made. An impotiant consideration is whether the violence occmTed in circumstances of
malevolent rather than foolish or spontaneous intent. It is important to consider whether the applicant is a person prone to violence or cruelty or whether she or he became caught up in circumstances where awful things sometimes happen. Without stating any rule which can be applied to evety case, it is my view that detention pending appeal will not always be necessmy for young men or women fighting on a Saturday night, even though awful consequences sometimes result.
24 The only factors that militate against release in this case are the apparent mindless violence of the event, the gravity of the offence (murder), and the fact that the accused faces a minimum of 10 years in prison. In his favour are the fact that he has no previous record, he has a family, the offence seems to have been spontaneous and possibly foolish, and the fact that he had been on bail pending trial and he always appeared as required.
25 Some members of society, of course, will think everyone convicted and sentenced to prison should be detained until their appeal was allowed. The clear language of section 679(3) demonstrates that such is not the law of Canada. Parliament has imposed a positive duty upon the comi, which judges cannot avoid. Experience tells us, as reasonable members of society already know, that
most persons on bail do not commit further crimes or fail to appear, although even one breach is too many. When decisions about bail m·e made with the public in mind, it must be a public which has accurate knowledge of the law, the nature of the risk Parliament anticipated, the actual circumstances of the accused, and the facts of the case.
[33] In that case, the B.C. Court of Appeal determined that public confidence in the administration of justice would not suffer by permitting the accused in that case to be released pending the hearing of his appeal, taking account of the perceptions of an informed public and the circumstances of the case. Of course, that was a different case than this case, because in that case, the accused had already been convicted by the jury of second-degree murder, a murder that arose out of a violent altercation in a club with the number of gunshots being fired and some patrons being injured. Those events had been followed by a further violent disturbance outside the club in the course of which a person was beaten and killed.
[34] As in that case, this was a crime of considerable violence as evidenced by the extent of the bloodstains found throughout the one bedroom apartment where these events took place, and the offence is very grave, a charge of second-degree murder, and the accused if convicted faces a minimum of 10 years in prison. It is also a negative that this victim could possibly have been saved if he had received medical assistance earlier, although the attribution of blame for the failure to call
911 earlier may as easily be pointed at Mr. Economou as to Ms. Gonzalves, or to both of them in a severely intoxicated state.
[35] However, just as in that case, so too in this case, in favour ofthe accused are her absence of a previous record, the presence of her extensive family before this comi, and the possibility which will no doubt be fully explored at trial that the offence arose spontaneously as a consequence of the excessive drinking engaged in between Ms. Gonzalves, Mr. Economou, and Mr. Singh, and that some
commentary or criticisms sparked the beginning of the beating by Mr. Economou that would ultimately lead to Mr. Singh's demise when he suffocated while unconscious.
[36] As in that case, this is a case where this accused has no prior criminal record. It is a case where the evidence before me on this bail hearing is that she was not a person inclined by nature towards violence, and it appears plain that her trial on these charges will necessarily generate evidence relative to whether she was engaged in an abusive relationship with Mr. Singh.
[37] Plainly, she is a person that has a severe alcohol problem, a problem that must be addressed and plainly there are issues relative to what appears to have been some effort on her part to minimize and cover up her involvement. But the question is whether the sensibilities of a reasonable and infmmed member of the public would be disturbed or if such a person would lose confidence in the administration of justice if Ms. Gonzalves were to be released to the community in this case pending her trial, while presumed innocent. In my view, they would not.
[38] I am satisfted, given her absence of criminal antecedents, the possibility or probability that her relationship with Mr. Singh involved her being abused, and the possibility that she may have had no active involvement in the actions that caused his injuries and that led to his death, even if she did display reprehensible post offence conduct, that a reasonable member of the community would not have their sensibilities shocked by her release. Such a person would not lose confidence in the administration of justice. In my view, this is an appropriate case for release on
the stringent terms that I have discussed with counsel and that are being laid before me today, as further refined since last week's hearing.
Released: June 26,2013
Michael G. Quigley J.
DATE: 20130626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and-
Respondent
HELENA GONZALVES
Defendant/Applicant
REASONS FOR RULING
Michael G. Quigley J.
Released: June 26, 2013