Court File and Parties

Court File No.: CR-14-00000148-00BR
Date: 20140730

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Jerry Brienza, for the Crown

Respondent

• and -

ALWAYNE BIGBY

David Bayliss, for the Defendant

Defendant/Applicant

HEARD: July 21-22, 2014,
at Toronto, Ontario

W A R N I N G

An Order restricting publication in this proceeding was made pursuant to section 517 of the Criminal Code.

Michael G. Quigley J.

Reasons for Ruling

Re: s. 522 Application for Judicial Interim Release

1Alwayne Bigby is charged with first-degree murder. His co-accused is Michael Davani. They are charged with having murdered Andrea White on April 12, 2014 in Scarborough.

2On this application, Mr. Bigby asked the court to permit him judicial interim release pending his trial under section 522 of the Criminal Code. In this matter, the onus rests upon his counsel, Mr. Bayliss, to demonstrate to the court in bringing this application that his continued detention in custody is not justified. That follows because the charge he faces is one of first-degree murder and is a listed s. 469 offence, possibly the most serious offence known to our law. 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 court that the continued detention of Mr. Bigby is not justified.

The factual allegations

3The murder is alleged to have taken place in the late evening of Saturday, April 12, 2014. It was pouring rain. After 11:00 pm, the white Land Rover vehicle owned and registered to Mr. Bigby is captured on surveillance cameras heading southbound on Forest Creek Pathway. There is nobody out and about because it is pouring rain. However, Andrea White, her husband and two neighbours and friends of theirs are sitting in the garage at their home socializing that Saturday evening, with the garage door open.

4The surveillance camera records the Land Rover heading southbound on Forest Creek Pathway, driving past the open garage door, continuing down the road a short distance and then doing a U-turn and circling back to drive in a northbound direction. The vehicle can be seen slowing down in front of the open garage door at No. 12. The brake lights come on. The footage shows the passenger wearing a grey hoodie and he appears to have something covering his face. The driver was wearing a white t-shirt.

5Then a number of shots were fired from the passenger side of Mr. Bigby’s vehicle – six or seven. The image of muzzle fire can be seen in the videotapes. Only one of those bullets hit Andrea White, but she fell in the doorway of her garage and died moments later in the arms of her husband while her children watched uncomprehendingly.

6The white Land Rover sped off to the north and then proceeded westbound on Old Finch Road. Numerous neighbours heard the shots and called 911. The incident was posted with the police seconds later. About 10 minutes later an OPP scout car proceeding westbound on Hwy. 401 saw the white Land Rover. The officer called in the plate number. Within seconds the information came back showing that vehicle to be registered to this accused, Alwayne Bigby, with an Ottawa address. It also showed his driver’s licence image. The officer said he could see as he was abreast of the vehicle on the 401 that the driver looked similar to the person in that photo. He called for support. Other cars arrived within seconds and the vehicle was taken down on the shoulder of the westbound 401 just near Avenue Road in a high-risk takedown with guns drawn.

7The driver was ordered to put his hands out the window and he did as he was told, but then pulled his hands back in, the brake lights went on, and the vehicle took off back onto the 401 westbound. It exited at the Bathurst Street ramp and started driving though the Wilson Heights residential area, being pursued by police cars in a high-speed chase. The vehicle hit a curb and then both occupants exited the vehicle while it was still in motion. The driver, Alwayne Bigby, took off on foot. The passenger, Michael Davani, was arrested at the scene. A 9mm semi-automatic handgun was later found on the Hwy. 401 Bathurst Street exit ramp.

8A short time later, at about 3:00 am in the morning, the accused was on a TTC bus near Jane and Wilson, and borrowed a cellphone from a stranger to make a call to his former girlfriend, Ashley Decarvalho, for assistance. She refused. This accused then arrived breathless, soaked from the rain, and dirty at the home of his friend, Tenidayoh Tokunboh, who goes by the name of Tim. He lives in the Thistletown area. They had been playing basketball the evening before at Thistletown Collegiate.

9In the statement he later gave to police, Tim said that Alwayne was in wide-eyed shock when he arrived at his house. He said that he kept holding his head and saying he couldn’t believe what had happened. Mr. Bigby told him that he was out that night with his friend “Classic”, Mr. Davani’s nickname. He told Tim that he and “Classic” went to a complex to meet some girls, but that when they arrived there, Davani rolled down his window and started shooting. He told him that Davani tossed the gun from the vehicle. Tim told him he had to turn himself in. He gave him clean, dry clothes, a new t-shirt and sweat pants. Alwayne’s clothes were washed the next day.

10A short time later, Alwayne called his mother. Tim’s brother, Tosso, drove him to his mother’s apartment building. She met him in the lobby. The video surveillance footage shows them hugging and discussing something. Then his mother drove him to the police station at Eglinton and Allen Road, and he turned himself in. The police there had no connection associating this accused with the Scarborough shooting for about an hour, and so the accused and his mother sat in the police station waiting area for an hour until an officer came out and told Alwayne Bigby that he was charged with first-degree murder in the death of Andrea White.

Crown theory of the case

11The Crown claims that the matter started with the death of one Kwado Mensah a year before on April 26, 2013. He was murdered at the corner of Old Finch Road and Forest Creek Pathway, allegedly by an accused named Scud in a drug deal gone sour. Kwado Mensah’s birthday was April 12, so April 12, 2014 would have been his first birthday following his death, and a date just a few weeks before the first anniversary of his death.

12On April 12, Mensah’s birthday, a memorial was held at his gravesite at about 3:00 in the afternoon and many friends attended. Mr. Bigby’s white Land Rover was captured on surveillance cameras there and Mr. Davani is believed to have gone into the funeral home to ask for the location of Mensah’s grave. The accused’s cellphone was in the area of that cemetery at around 3:00 pm that day.

13As noted, at about 6:00, Mr. Bigby was engaged in a basketball game at Thistletown Collegiate. Tim Tokunboh is seen wearing the same white Adidas sweatshirt and grey sweatpants that he later gives to Alwayne to wear in the middle of the night. Mr. Bigby’s car is seen leaving that area at 9:00, and then he is captured on surveillance video at a gas station on Rexdale Blvd. at about 10:15, about an hour before the shooting.

14Stated simply, the Crown’s theory of the case is that Mr. Davani, and also Mr. Bigby, were childhood friends of Kwado Mensah. They go to his gravesite to mark the grim anniversary and then, that night, head to the neighbourhood where he died, intent on revenge, on killing somebody in that area as retribution for his death. The police say they were not in that area looking for girls. It was pouring rain and nobody was out and about. They were there for retribution. They say Mr. Bigby knew what Mr. Davani was intent on doing, and that he is as equally guilty of the offence as the shooter.

Applicable principles and analysis

15Regardless whether an application for judicial interim release is a reverse onus matter, like this one brought under section 522 of the Code, whether release ought to be granted is still determined under the primary, secondary and tertiary grounds criteria set out in ss. 515(10).

The primary ground

16The primary ground is set out in s. 515(10)(a). It calls for an accused to be detained in custody pending his trial where the detention is necessary to ensure that the accused person will be in attendance in court in order to be dealt with according to law. That first factor addresses what is referred to as “flight risk”. It is focused on the risk of the accused vanishing into the ether, so to speak, if he is released from custody.

17The Crown claims that there is some degree of primary ground risk here, but I reject that claim. The basis of the claim is that Mr. Bigby has connections in the United States from having attended Northeastern University on a basketball scholarship and having played NCAA basketball. It is claimed he could easily take off to the United States. It is claimed that he showed he is a flight risk when he pulled away following the takedown of his vehicle leading to a high-speed chase and the abandonment of the vehicle while it was still moving. And once he abandoned the vehicle, he fled on foot.

18In my view, however, it is unknown why that vehicle left that scene, but it is noteworthy that Mr. Bigby appears to have initially submitted to police authority when the vehicle was stopped, even if only briefly, before pulling his hands in and driving off. However, we do not know what was going on inside that vehicle between the two co-accused. We do not know what may have caused that sudden departure. I do not consider him to be a flight risk because he fled that scene. If he claims to be innocent of these charges, as he does, and was in a state of shock, as Tim told the police, it might not be surprising that he was out of character and fled out of fear for his life.

19Nonetheless, the plain fact is that Mr. Bigby voluntarily turned himself in within a couple of hours. He is a well-known person in the community because of his basketball prowess. He has studied for two university-level degrees. He is a well-educated man. He certainly knows he would not be able to keep below the radar for long if he were to try to disappear. He is not somebody who could or would, in my view, just try to disappear. I do not consider him to be a risk on the primary ground and find it provides no reasonable basis for his detention.

The secondary ground

20The secondary ground addresses the circumstance where the continued detention of the accused is necessary 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.

21Mr. Bigby has no prior criminal record. He has been law-abiding his entire life. He has never committed a criminal offence or interfered with the administration of justice. He was brought up by a single mother. She exercised her strength of character and will to ensure that her children were all law-abiding, God-fearing and church-going people. Mr. Bigby is a person who has overcome the adversity of a youth growing up in tough neighbourhoods, where too many other young men like himself turned early in their teen years to a path of breaking the law and abandoning school and never turned back. They are the lost ones who we see so frequently before our courts.

22Mr. Bigby took a different path. He used his strengths as a basketball player to lead him into a better life. He had dreams to play basketball professionally after a successful college career. After leading his team to win the OFSAA high school championship, Mr. Bigby was offered and accepted a full scholarship to play basketball at Northeastern University in Boston, Massachusetts. But in addition to his sports prowess, he also achieved his academic goals. On August 30, 2012, he was granted a Bachelor of Science degree from Northeastern with a specialization in Criminal Justice, ironic under the circumstances. He pursued a Master’s degree in education.

23His friend Ebenezer Fordjour, also an educated person, who served as Mr. Bigby’s security contact relative to his Humberline Road condominium, spoke in his July 5, 2014 letter of the personal strengths of character that caused the accused to be admired in his community. Mr. Fordjour commented on his character, how he regularly offered a helping hand to anyone who needed it and would assist teammates to improve their skills and would offer advice and share experiences to help his peers through their problems. He said:

This made Mr. Bigby a leader and highly regarded amongst his peers. These same leadership qualities made Mr. Bigby a mentor in the community. He always helped the children and youth in his community and was like a big brother to them. They looked up to him, because he taught them firsthand that regardless of where you come from in life you can achieve your dreams and be who you want to be; with the right attitude, hard work and determination.

24While the Crown suggested in argument that one of the reasons Mr. Bigby needs to be detained is to prevent another senseless drive-by shooting from taking place, I do not find that there is any reasonable foundation for that fear relative to this accused nor do I find that concern that to be supportive of his continuing detention under the secondary ground. Mr. Bigby was not the shooter. It was “Classic”, Michael Davani, who fired the shots that killed Andrea White. The question here is the extent to which Mr. Bigby has knowledge. However, I do not accept the proposition that Mr. Bigby’s release at this time would present any realistic reasonable prospect of another similar or other offence occurring.

25I will discuss the plan of release later in these reasons, but it will suffice for present purposes to say that I am satisfied that there is no risk on this, the secondary ground. I reach that conclusion for these reasons: first (i) on the basis that there is no evidence that Mr. Bigby is an inherently violent person, or one inclined toward violence, and noting that he has no prior criminal record; second (ii) because even though he was present, he was not the principal actor in this killing on any fair construction of the evidence that is presently known, and his culpability appears to be largely wound up in the issue whether he had any knowledge that “Classic” was going to start shooting as they drove by Andrea White’s house; and third (iii), because the plan of release referred to below which was put forward by his family and which involves his mother, Soranto Duhaney, his aunt, Angela Cochrane-Perrin, and his cousin, Tracy-Ann Samuels, being his principal sureties, effectively amounts to house arrest inside his Aunt Angela’s house, subject to accompanying his mother to her hairdressing business every day.

26Here, as well, while Crown counsel does not accept all aspects of that plan of release, he does acknowledge and concede that the secondary ground is not in play. It is the tertiary ground that is principally relied upon by the Crown as the foundation for its request that the accused continue to be detained in custody.

The tertiary ground

27That leaves the tertiary ground. A person will be kept in custody on the tertiary 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 surrounding 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.

28Plainly there was a firearm used in these circumstances. Andrea White was killed by a bullet fired from a firearm that appears on the evidence I have seen to have been in the possession of one of the two occupants of the subject vehicle, either Alwayne Bigby or Michael Davani, although the evidence appears pretty clearly to isolate Michael Davani as the shooter. As such, that obviously is a factor that must figure into the equation, along with the other three factors that do require consideration. In addition, a murder charge is as grave as it gets and if convicted, the accused will be sentenced to life imprisonment with no parole for 25 years.

29The Crown argues that reasonable members of the public would lose confidence in the administration of justice, having regard to all the circumstances, if Mr. Bigby were to be released.

30I will not specifically refer to more than a few of the cases that have been decided relative to the tertiary ground and that have been referred to me in argument. It will suffice for the moment to say that the tertiary ground is not meant to be an ever-applicable excuse for the continued detention of accused persons in circumstances where the primary and the secondary grounds are not engaged. This necessarily follows because the presumption under our law, subject only to the onus of persuasion discussed above, is that persons who are awaiting trial ought not to be detained in custody except where the circumstances require it.

31Under the third ground, Mr. Bayliss must satisfy me that the maintenance of confidence in the administration of justice by members of the public does not require that Mr. Bigby continue to be detained. But, even if that is so, and even though this is a most serious crime, 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 and puts the onus on the accused.

32Relative to the plan that has been put forward by the sureties, I am satisfied that the proposed plan, with some tinkering as I will discuss with counsel at the end of this hearing, is and would be an appropriate plan that would ensure continued serious and disciplined supervision of Mr. Bigby pending his trial. It would ensure that he will remain in the company of family members who are pledging a significant amount of surety to support their promise. It ensures that he will be watched by them and the numerous members of his family who were in court for the hearing. Those sureties all confirmed before me that while they have his best interests at heart, they will quickly and without hesitation act first as the court-appointed “interim jailers” of this accused and as required by any terms of release imposed, including immediately contacting police authorities should Mr. Bigby deviate even slightly from the approved plan of release.

33I am also content that a surety of $100,000, without deposit, if taken from the sureties Soranto Duhaney, Angela Cochrane-Perrin and Tracy-Ann Samuels will meet the purposes that require a significant pledge of financial resources. That amount not only provides an adequate security for the obligations that the sureties have promised to the court under oath or affirmation, but it should also impress the accused, Mr. Bigby, with the extent to which his family members are prepared to run the risk of severe financial jeopardy to support him. I am satisfied that will sharply and carefully focus his attention on the critical importance of him adhering carefully and with discipline to every condition the court would impose upon him as a term for his interim release pending trial. I find it difficult to believe that he would ever willingly jeopardize his family’s assets by violating any terms of release.

34Having observed his Aunt Angela and his cousin Tracy-Ann Samuels give their evidence as proposed sureties in this case, and given that the two of them and his mother, Soranto Duhaney, have discussed this plan of release carefully amongst themselves, I am also content that they will regard their first obligation as having been made to me, and to this court and to our Sovereign Lady the Queen whose arms and authority are displayed on the wall behind me, to enforce the terms upon which Mr. Bigby would be released, should that be the disposition decided on by the court. They were each specifically asked what they would do and each answered firmly and directly that they would pick up the phone and call the police.

35Frankly, this is not a situation of adhering to the spirit of the terms of release or regarding them as mere suggestions. Where the charges are as serious as they are in this case, any deviation from that plan without the approval of the court or official permission must and will 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.

36Before turning to the heart of the tertiary ground, however, I must also address the Crown’s criticisms of Ms. Duhaney, the accused’s mother, as a surety and explain why I do not share his belief that she would not be an acceptable surety, even if I do accept his assessment that she was not a very good witness.

37The key that is claimed to be central here from the Crown’s perspective is that this case involves a drive-by shooting, but that the sureties, in his submission, do not know or understand the circumstances that gave rise to these events. While that may have been true prior to this hearing, it certainly is not the case now. The entire family that was present in court, somewhere between 10 and 20 people, all heard all of the allegations made by the Crown in this case against their son, nephew, brother, or cousin, Mr. Bigby. They all heard the theory of the Crown’s case relative to retribution for the death of Kwado Mensah, and they heard the allegations claimed by the Crown to support inferences of this accused’s knowledge and consequent culpability with his co-accused, Mr. Davani, in the death of Andrea White.

38The Crown claims it is unknown who Mr. Bigby’s associates are and so it is unknown with whom he will be associating if he is released on bail. The Crown suggested that this could result in yet another death taking place, but this was overreaching in my view, without any cogent foundation. The Crown acknowledges that the sureties are good support sureties, but he claims they cannot be relied upon to control, monitor and supervise the accused.

39Relative to Alwayne Bigby’s mother, Ms. Duhaney, counsel for the Crown claims that she was a terrible witness, that she was evasive, and that she was not telling the truth. Ms. Duhaney claimed to be cooperating with the police, but from the Crown’s perspective it did not appear that way. The Crown as much as alleged that Ms. Duhaney herself was responsible for the loss of her handbag that had the three cellphones in it that were found when they went to Alwayne’s apartment to clear it out after his arrest. Counsel for the Crown expresses his belief that he cannot accept that she did not ask anything about what happened that night, and claims to have simply continuously told Alwayne to go to the police to turn himself in, and to tell them what happened, but not her.

40But the evidence is that is exactly what happened. As Mr. Bayliss was quick to emphasize, Ms. Duhaney’s first instinct that she trusted and followed was to go to the police. She told her son that he had to trust in the police and turn himself in. There is no evidence that it would make her a better surety to know what he had done at that early point in the matter instead of putting her trust, and his, in the police. Moreover, she reacted decisively and quickly, and acted with determination and purpose.

41I agree with Mr. Brienza that Ms. Duhaney was far from the best witness I have ever had testify in front of me, although I can say she was not the worst, but she was plainly exceedingly nervous, very concerned about the prospects for her son, and she seemed quite overwhelmed and incredulous with the situation she found herself in of standing in the witness box to testify at a bail hearing for her successful son, but who now finds himself charged with a co-accused for murder. That is certainly an experience that is very unfamiliar for her, and yet she was concerned that she do the right thing.

42She may not be a perfect witness, and she may not be a perfect surety, but she and the other members of her family are regular, ordinary, law-abiding people. Plainly, she has done her best to raise her children in a way that kept them out of harm’s way and away from the attractions of the life of lawlessness that existed in the communities her circumstances required them to live in, the Islington area and the Jane-Finch corridor, at least until she was able to move them to better environments.

43None of these people has ever been in front of a courtroom before. None of them has ever run afoul of the law before. Her inexperience and naïveté is evidenced by the fact that she took her son to turn himself in to the police station on Eglinton Avenue at Allen Road without even first calling a lawyer. This is surely the best evidence of her trust in the Canadian justice system to deal fairly with her son. And equally it is strong evidence of her understanding of what she must do as a surety relative to her son, even if there may have been equivocation or uncertainties in her evidence.

44Moreover, and importantly, Ms. Duhaney will not be the only surety. She is prepared to upset her own life significantly by moving into her sister Angela’s house because there is more room, in order to permit both herself and Angela to serve as the residential sureties for Mr. Bigby. It was plain to me that Angela Cochrane-Perrin is a strong person, a strong and determined woman. There was no indecision or hesitation to her testimony. The same determination was present in Tracy-Ann Samuels’ testimony, even if she will inevitably be a more distant and less frequent supervisor of Mr. Bigby.

45However, underneath the fears and insecurities that she displayed as she gave her evidence before me, I believe Ms. Duhaney is also a strong person. Both she and Ms. Cochrane-Perrin have lived hardworking exemplary lives, and I am not persuaded that they would not honour their pledge to this court as they are required to do as sureties as a condition for the release of this accused on bail pending his trial.

46The Crown expresses concern about the individuals with whom Alwayne Bigby associates, even apart from Mr. Davani, an individual that Mr. Bigby will clearly not be associating with anytime soon since I assume he will likely remain in custody pending trial. But beyond that, the evidence shows that he associates with law-abiding members of the community. Tim Tokunboh, Tosso Tokunboh, Tim’s brother, and Ebenezer Fordjour are the persons he seems to associate with more than the likes of “Classic”, Michael Davani. He appears to be the exception. There is no evidence here of any other association between this accused and any criminal element, and indeed Tim Tokunboh’s statement to the police makes two things plain: first, that he is a close friend of Alwayne Bigby and has been for quite some time, going back to well before Alwayne left for his university education in the United States, and second, that although he had some knowledge of prior association between Mr. Bigby and Michael Davani, albeit infrequent to his knowledge, he knew of no connection between Mr. Bigby and Kwado Mensah that could account for any animus, or that could or would explain his conscious and knowing involvement in the death of Andrea White.

47That brings me to the core of this application. That is the question of whether Mr. Bayliss has succeeded in persuading me that the continued detention of the accused, Alwayne Bigby, pending his trial on this very serious charge of first-degree murder is not required in order to maintain the confidence of the public in the administration of justice.

48The Crown opposes this application. First, counsel for the Crown notes the fact that Mr. Bigby was unquestionably there at the scene of the murder of Ms. White. That is undisputed. What is in dispute is the extent of his prior knowledge of what was going to happen. Counsel for the Crown relies upon the inferences that he says arise from five alleged facts as support for the inferences of knowledge that he would impute, prior knowledge and deliberation to the accused: (i) both the accused and “Classic” were at the Kwado Mensah memorial and that explains why that evening they go to Forest Creek Pathway, where he died, to seek random retribution against anyone they can find who lives there; (ii) the video of the drive-by shooting shows Mr. Bigby’s vehicle slowing down, the brake lights being applied and then the shots are fired. This is claimed to show the deliberate involvement of the driver in the shooting; (iii) the donning of the grey hoodie by Mr. Davani at the gas station shows an intent by him to camouflage himself and conceal his identity, and the accused must have seen that; (iv) it was pouring rain out and there was no evidence of any girls being in the area; and (v) they left their cellphones behind to conceal their actions and to prevent them from being detected.

49Further, the Crown says that I must look at all this evidence in the light that most favours the Crown’s position, and that I must prefer the most favourable inferences that favour the Crown. Thus, since Crown counsel says that the evidence available, when looked at in its best light, favours the Crown’s position, that ought to inform me reaching a conclusion that the Crown’s case against this accused is strong, and assist me in resolving the tertiary ground analysis in favour of the Crown.

50Crown counsel cites authority for that proposition¹, but I do not believe that the analysis is quite that straightforward or that either of those cases exactly support the proposition advanced by Crown counsel. It may well be true that a bail hearing is not the place for a full hearing of the Crown’s case, or a full opportunity for the accused to challenge the weight of the Crown’s case. Nevertheless, neither is any and every inference raised by the Crown to be treated as proven. Where other reasonable inferences may be available, it simply raises the prospect that the inferences advanced may not ultimately be proven to the criminal standard, and in such circumstances, that the evidence may not be regarded as overwhelming and of unbreakable strength in the Crown’s favour.

51It is important to remember the starting point for the analysis of s. 515(10)(c). The presence of the four factors enumerated there does not of itself determine that bail is to be denied. Rather, the section makes plain that I am to consider whether detention is necessary to maintain confidence in the administration of justice, “having regard to all the circumstances, including” the four specified factors. Helpful guidance on the tertiary ground can be found in R. v. Blind², where the Saskatchewan Court 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 himself.

52This, of course, might be the circumstance if there 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 himself, 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 extreme repugnance in the minds of reasonable members of the community, not the people on the fringe, but the reasonable mainstream, and offend them having regard to the circumstances as a whole.

53However, counsel for Mr. Bigby vigorously asserts that this is not a tertiary ground case. First of all, he observed that the Crown advanced a somewhat tenuous and half-hearted reliance on the primary ground, and concedes that the secondary ground is not in play in support of the need for detention. But looking at the strength of the Crown’s case, defence counsel disputes that it is the strong or overwhelming case on the issue of knowledge that is contended by the Crown. He also emphasizes that the accused has no prior record and that the presumption of innocence, combined with these other factors and his blameless and successful life to this point, call for his release pending trial, albeit on stringent conditions.

54In considering the application of the tertiary ground in circumstances where the offence alleged is one of murder, it bears remembering that some murders are worse than others. Plainly, this appears to be a horrific and senseless drive-by shooting, but the mere fact that the crime charged is one of murder does not necessarily engage the tertiary ground. Justice Nordheimer makes this point in R. v. Modesta³. Further, not only may some murders be worse than others, but some modes of participation in murder may be and are plainly worse than others. Indeed, while I make no comment beyond this observation, it does seem possible and perhaps probable, depending on the strength of the particular inferences, that they could be as supportive of a charge against this accused of accessory after the fact to murder, under s. 23 of the Code. It all depends on whether the evidence shows that Mr. Bigby had specific knowledge before the events took place, or only after as he sped away, fled in the vehicle and then on foot, and then later turned himself in to the police. At the moment it is not plain to me that the available inferences strongly support the former rather than the latter.

55All that I see is an apparent independence of action between this accused and Michael Davani, an independence of action that seems not to be suggestive of prior knowledge by this accused. Why does this accused first put his hands out of the window of the vehicle when it is stopped by police, and then seconds later pull those hands in and take off? What transpired inside that vehicle to precipitate that? I do not presently know, but in my view those disparities of action undermine the Crown’s allegation that both accused here had knowledge aforethought, and deliberately planned together to go to that neighbourhood in east Toronto to randomly shoot someone in retribution for the death of Kwado Mensah.

56In circumstances where an accused is a person who was prone to violence or there was a prior history of violence, even if the primary or secondary 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 than in a circumstance like this, where the only evidence before the court is the untested inferences that the Crown seeks to draw from particular aspects of the evidence.

57Nevertheless, it seems incontrovertible that the involvement of Mr. Bigby in any kind of offence of this nature is totally out of character, and that alone, combined with his background leaves a situation which may well require some explanation, but which does not necessarily only lead to the inferences the Crown would seek to draw. It is trite to note that to the extent that more than one reasonable inference may be drawn from a fact or set of facts, that calls into question the strength and certainty of the Crown’s case, at least at this point in the process.

58In R. v. A.⁴, Justice Molloy spoke of the interaction between detention of an accused person on the tertiary ground and circumstances where the individual has voluntarily surrender themselves to the police:

The ultimate consideration under the tertiary ground is whether detention is necessary in order to maintain public confidence in the administration of justice. One aspect of that consideration is the public concern about what is perceived to be an escalating pattern of violence in Toronto, particularly violence involving guns. It is necessary to be mindful of that public concern, while at the same time to apply the law, including the Charter, dispassionately, being careful not to sacrifice the fundamental values of our judicial system to appease shifting popular opinion.

In this case, A has placed his faith in the justice system by surrendering to the police in order to faces trial on these charges. There is a strong public interest in encouraging innocent individuals who are accused of crime to place their trust in the justice system rather than fleeing to avoid trial. There is little incentive for fugitive to turn himself in if he is almost invariably going to be held in custody pending his trial. There is considerable merit to Mr. Sapiano’s point that reciprocating the trust demonstrated by an individual who has voluntarily surrendered himself to the court’s jurisdiction maintains confidence in the administration of justice rather than undermining it.

59I agree entirely with this thinking and consider it to be particularly apropos in the circumstances of this case. We are not dealing here with whether or not the shooter ought to be detained pending trial. In my view, that would be a much easier decision to reach. It is hard for me to conceive that I could fashion a foundation upon which the shooter of an alleged drive-by shooting, an individual with criminal antecedents, unlike this applicant, would be released pending trial.

60But plainly, there are fundamental distinctions between the two co-accused in this case. Mr. Bigby has no criminal antecedents. He is an educated man who had his future in front of him. On the evidence of one of his closest friends, who he went to for support in the early hours of the morning after the shooting took place, he could not believe what had transpired and was in an “eyes wide opened” entire state of shock, totally traumatized by the events he had been part of.

61It is understandable that the police presently regard the circumstantial evidence that was described at the hearing as being supportive of inferences that could result in a jury concluding that Mr. Bigby did have knowledge and thus was complicit in the shooting of Andrea White. Those inferences may be available to them at that time. While there is never any obligation on an accused person to testify, and the accused is always presumed to be innocent under our law, it seems plain that there is some sort of an explanation that is required here, absent which the jury will be entitled to reach whatever conclusions it considers reasonable and proven beyond a reasonable doubt on the evidence heard at trial and the inferences that evidence raises.

62So while those questions continue to loom large, at the end of the day, when he must have known he would be faced with one of, if not the most serious charge known to our law, this accused, Alwayne Bigby, followed his mother’s and one of his best friends’ advice and turned himself in to the Toronto police authorities. He surrendered himself to this court’s jurisdiction. In doing so, as Justice Malloy noted in R. v. A., I accept that he has placed his faith in our justice system and in its ability to get to the bottom of these matters and to determine fairly on the evidence ultimately presented at trial whether it is satisfied beyond a reasonable doubt that Mr. Alwayne Bigby knew what was going to transpire that night outside 12 Forest Creek Pathway in the Scarborough area of Toronto and was complicit in that event, or whether he was an innocent person caught up in events beyond his control.

63But the question is whether, against this background, the sensibilities of a reasonable and informed member of the public would be disturbed or if such a person would lose confidence in the administration of justice if Mr. Bigby were to be released to the community in this case pending his trial, while presumed innocent. In my view, they would not.

64I am satisfied, given his absence of any criminal antecedents, the fact that he turned himself in after the event occurred and thus showed his confidence and reliance upon the Canadian justice system to treat him fairly, and the possibility that he may have had no active involvement in the shooting that caused the death of Andrea White, that a reasonable member of the community would not have their sensibilities shocked by his 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 will be further refined when this matter returns before me in September.

Michael G. Quigley J.

Footnotes

1. 1See R. v. Kevork, [1984] O.J. no. 926 (H.C.J.) at para. 8ff per Ewaschuk J., and R. v. Stephenson, [2006] O.J. No. 5033 (S.C.J.O.), at paras. 21-26.
2. 2(1999), 1999 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.).
3. 32009 67002 (S.C.J.).
4. 4[2006] O.J. No. 1154 (S.C.J.O.), at paras. 50-51.