ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140122

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ANDRES SOTOMAYOR
Applicant

Beverley Richards, for the Crown

W. Glenn Orr, Q.C., for Mr. Sotomayor

HEARD: December 17 and 23, 2013

TROTTER J.

INTRODUCTION

[1] Andres Sotomayor is charged with 6 firearms offences, as well as charges of dangerous driving and failing to stop for a peace officer. On October 13, 2013, he was refused bail after a hearing before His Worship Justice of the Peace I. Chandhoke.

[2] Mr. Sotomayor applies under s. 520 of the Criminal Code for a review of the order of the learned justice of the peace and for an order granting him release on bail while awaiting trial. For the following reasons, the application is dismissed.

FACTUAL BACKGROUND

(a) The Allegations

[3] On July 29, 2013, the police responded to a complaint from the VIP Lounge on Keele Street in Toronto. A group of men, including Mr. Sotomayor, got into an altercation inside the lounge. It is alleged that, when the men came outside, Mr. Sotomayor pointed a shotgun at two people and then fired a shot into the air. The men then left in a white Cadillac Escalade.

[4] Part of this incident was recorded by a security video camera, positioned outside of the club. The Crown alleges that it is Mr. Sotomayor captured on the video. Detective Kranjic of the Toronto Police Service (TPS) reviewed the video and testified that “I am positive it is him in the video.” On behalf of Mr. Sotomayor, Mr. Orr submits that the video is of poor quality and that I should be cautious before reaching any firm conclusion on the issue of identity.

[5] A short while later, the Escalade was located outside a bar called Aquarela on Wilson Avenue. A group of men left the bar and got into the vehicle. The bartender said that he saw Mr. Sotomayor get into the driver’s seat. The police drove up behind the vehicle and activated their emergency equipment. Mr. Sotomayor did not stop the vehicle. Instead, he triggered a very dangerous high speed chase involving many police cars. He crashed through the gate of a construction site and drove around in the parking lot, attempting to evade and almost colliding with the police cars. The car ended up back on the road and the chase continued. It is estimated that, at one point, the car was traveling 150 km/h on city streets. The Escalade went through a red light. The car mounted a curb, came to a stop and three men fled. They were soon apprehended.

[6] The police found a shotgun on the ground, by the passenger’s side door. It had a shotgun casing that had yet to be ejected, along with three live shells in the magazine.

[7] Identification of the person who discharged the shotgun and the driver of the Escalade are live issues in this case. As noted above, the image from the video is not conclusive. Gunshot residue (GSR) testifying also failed to clarify this issue. As part of the investigation, the police obtained a statement from one of the co-accused, Jose Cajina, who said that Mr. Sotomayor was driving. When Mr. Sotomayor was arrested, he was wearing clothing consistent with the description given by the bartender at Aquarela.

[8] Police investigated the history of the Escalade and learned that it belonged to a man by the name of “Gilbert”, who had loaned the vehicle to Mr. Sotomayor.

(b) The Bail Hearing and the Release Plan

[9] When he appeared for his bail hearing, the onus was on Mr. Sotomayor to justify why he should be released. The Crown (not Ms. Richards) advised the justice of the peace that it was a reverse onus “because it involves a firearm.” This was incorrect because none of Mr. Sotomayor’s charges fits into the circumstances described in ss. 515(6)(a)(vi) or (viii) of the Criminal Code. However, the Crown was correct to point out that the onus was on Mr. Sotomayor because he was already at large on indictable offences when he was alleged to have committed the present offences (s. 515(6)(a)(i)). Moreover, as discussed below, Mr. Sotomayor is not “ordinarily resident” in Canada, thereby triggering the reverse onus provision in s. 515(6)(b).

[10] By way of background, Mr. Sotomayor is 31 years old. He was born in Ecuador and is an American Citizen, living in New Jersey.

[11] Mr. Sotomayor was charged with impaired driving and driving while under suspension in 2010. He failed to appear for those charges. When he came back to Canada, he did not deal with the charges until he was arrested on the present charges. I will have more to say about this issue below.

[12] Mr. Sotomayor’s fiancé, Ms. Sayda Valle, was offered as a surety at the bail hearing. Her brother, Jose Cajina, is Mr. Sotomayor’s co-accused. Ms. Valle lives in Hamilton and works at supervising construction projects. She has four children with Mr. Sotomayor. Mr. Sotomayor has two other children from a previous relationship. Ms. Valle offered to pledge $7,000 as a surety.

[13] During her testimony at the bail hearing, Ms. Valle said that Mr. Sotomayor spends most of his time in New Jersey. He comes to Canada in the summer to work in construction with her, even though he is not legally permitted to work in Canada.

[14] During her evidence at the bail hearing, Ms. Valle said she knew of the white Escalade. She said that they were in the process of buying it around the time of Mr. Sotomayor’s most recent alleged offences.

[15] Ms. Valle has been a surety for Mr. Sotomayor in the past. Ms. Valle was aware that Mr. Sotomayor failed to appear on his previous set of charges (for which he was released on a promise to appear). He was in the United States at the time. During cross-examination, she said the following about the matter:

Yeah, I knew about that one because he, um, he was working in the States and he forgot of the date, um, but we had a lawyer….and she’s supposed to represent him that day to reschedule the, the court date but I don’t know what happened after that.

[16] The other proposed surety at the bail hearing was Mr. Sotomayor’s grandmother, Maria Ballesteros. She testified that Mr. Sotomayor could live with her and her husband in Brampton. Ms. Ballesteros was unclear about the amount of equity in their home, but she testified that she was prepared to pledge a substantial sum.

(c) The Decision of the Justice of the Peace

[17] The learned justice of the peace detained Mr. Sotomayor on the primary, secondary and tertiary grounds. He expressed concern about Mr. Sotomayor being a U.S. citizen, the fact that he was working illegally in Canada and that he failed to appear on charges in the past.

(d) The Release Plan on Review

[18] On this review, Mr. Sotomayor has revised his release plan somewhat. He has added his grandfather, German Ballesteros, as a potential surety. Both he and his wife testified on the bail review and offered to supervise Mr. Sotomayor if he is released.

[19] Mr. Sotomayor also proposes that he be subject to electronic monitoring by a company called Recovery Science Corporation. Stephen Tan, the operations manager of that company, testified about the service his company provides, utilizing GPS and RF (radio frequency) technology. He testified that his company currently assists with 34 cases in Ontario, based on release orders made in the Ontario Court of Justice and in the Superior Court. He provided detailed information of the names of the accused involved, along with the judges and justices of the peace who made the orders and the dates on which they were made.

[20] Mr. Tan testified that his company monitors compliance with house arrest conditions. Typically, the accused person is fitted with a monitoring device. Mr. Tan testified that his company is capable of detecting an alert within 10 minutes and is able to report the occurrence within another 10-minute interval.

[21] In cross-examination, Mr. Tan acknowledged that the technology utilized by his company cannot prevent absconding. As the helpful information package outlining Recovery Science Corporation’s services provides:

When a Court determines that there is a risk that an accused individual may be determined to flee or offend despite the consequences, it cannot be assumed that monitoring with active alerts can guarantee a sufficiently timely intervention by police to prevent the accused from fleeing or committing an offence.

And needless to say, it does not monitor poor behaviour on the part of the person fitted with the device.

[22] Mr. Sotomayor testified at the review hearing. He said that he travels from New Jersey to Canada every two months. He testified that, if released, he would remain in Canada and not return to the U.S. until the present charges are dealt with. Mr. Sotomayor also agreed to submit to electronic monitoring.

[23] In his examination-in-chief, Mr. Sotomayor said his criminal record included entries of drive while “over 80” and drive while under suspension. These were the offences for which he failed to appear in December of 2012. He entered pleas to these offences, as well as the added charge of fail to appear, after he had been arrested on the present charges. Mr. Sotomayor testified that he missed his court date in December of 2012 because he wanted to be with his stepfather in New Jersey, who had a heart transplant operation. He said that he attempted to contact his lawyer to have her deal with the matter. However, Mr. Sotomayor said that he was not able to get through and was unable to send her money at the time. This is somewhat at odds with Ms. Valle’s bail hearing testimony, reproduced at paragraph 15 above.

[24] Mr. Orr produced a letter from Mr. Sotomayor’s stepfather, Francisco Lopez, dated December 19, 2013. In this letter, Mr. Lopez said that: “…Andres Sotomayor was present at my house throughout the month of December 2012, supporting my orthotopic heart transplant medical procedure.” Appended to Mr. Lopez’s letter is an undated letter from a nurse practitioner, which confirms that Mr. Lopez was hospitalized for a week in November of 2012. He then was readmitted for a heart transplant in May of 2013.

[25] During his cross-examination, Mr. Sotomayor was shown his official criminal record, which contains two further entries from 2010: obstructing a peace officer and failing to comply with a recognizance. He received 12 days’ imprisonment on each of the charges, to be served concurrently. When confronted with these entries, Mr. Sotomayor was evasive and initially refused to admit to them. He eventually admitted that these entries formed part of his criminal record. I should note that Mr. Orr knew nothing of these convictions. Indeed, it would appear that the Assistant Crown Attorney at the original bail hearing was also unaware of these convictions.

[26] Mr. Sotomayor also admitted that his licence has been suspended since 2003 and that he is still under suspension. He was under suspension when he is alleged to have committed the offences he now faces.

[27] Ms. Valle testified on the bail review hearing. She was able to pledge a greater amount as a surety. Ms. Valle owns a house with her mother and, with her mother’s agreement, could pledge as much as $30,000.

[28] Beyond matters touching on her finances, Ms. Valle confirmed much of her testimony before the justice of the peace. However, it was very different on one important issue. Unlike her testimony at the original bail hearing (when she said that Mr. Sotomayor “forgot” about his court date in December 2012), Ms. Valle confirmed Mr. Sotomayor’s version of why he missed his court date on the outstanding charges (i.e., because of his ailing stepfather). This version of events was not in Ms. Valle’s affidavit and she provided no real explanation for why she changed her evidence on this issue. In cross-examination, she admitted that she was aware of his failure to appear on these charges but did nothing to get him to correct the situation and deal with the matter.

ANALYSIS

[29] I am not persuaded that I should set aside the order made by the learned justice of the peace. There is ample evidence to conclude that release in this case is not appropriate. The evidence that was heard on the bail review reinforces this conclusion.

[30] I start with a few general observations. The charges that Mr. Sotomayor faces are obviously very serious. No authority is needed to support this proposition. The use of guns in large urban centres such as Toronto is a very serious problem. In this case, a loaded shotgun was pointed at others and then discharged into the air. The ensuing chase was also extremely serious. A loaded shotgun was in the Escalade when the police were attempting to bring it to a stop. The chase put members of the public, not to mention the pursuing police officers, in great danger. To top it all off, Mr. Sotomayor was driving while under suspension, and was at large on charges of “over 80”, driving while under suspension and fail to appear.

[31] The case against Mr. Sotomayor appears to be strong. However, caution must be exercised in these circumstances because the Crown’s case may appear artificially strong at a bail hearing. As Jackson J.A. said in R. v. Blind (1999), 1999 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.), at p. 94: “There are many cases where the strength of the Crown’s case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses.” See also R. v. B. (A.) (2006), 2006 2765 (ON SC), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 502. This caution would appear to apply with greater force in cases involving eyewitness identification.

[32] At present, there is a reasonably strong case identifying Mr. Sotomayor as the person who fired the shotgun, and the person behind the wheel during the high-speed chase. Based on the video evidence, Detective Kranjic of the TPS testified that he was certain that it was Mr. Sotomayor who fired the shotgun. In terms of the chase, there would appear to be no doubt that Mr. Sotomayor was in the Escalade. Moreover, his co-accused (and the brother of his fiancé), Jose Cajina, said that Mr. Sotomayor was driving, although I appreciate that this piece of evidence is unlikely to be available to the Crown at the joint trial of the three men that stand charged.

[33] Another important consideration relates to the credibility of Ms. Valle and Mr. Sotomayor. I was unimpressed with the evidence of Ms. Valle. As I have already noted, at the original bail hearing, she said that Mr. Sotomayor simply “forgot” about his court date. This was supplemented with an attempt to blame his defence counsel at the time (not Mr. Orr) for failing to fix the problem. Before me, Ms. Valle pointed to the grave medical condition of Mr. Lopez as the reason that Mr. Sotomayor could not attend to the problem.

[34] I consider Ms. Valle to be an unreliable witness who bordered on being misleading. I am not prepared to entrust her with the important duties and powers of a surety. I have no faith that she would enforce any conditions that I impose on Mr. Sotomayor. I do not believe that she would be able to prevent him from returning to the U.S., a country where he enjoys citizenship.

[35] I also find Mr. Sotomayor’s evidence to be problematic. His responses to Ms. Richards’ questions about his criminal record were evasive and designed to mislead. He admitted these convictions only when it became apparent to him that Ms. Richards was in possession of information that he could not contradict or explain away.

[36] I am dubious of Mr. Sotomayor’s explanation for not appearing in court in December 2012 on his previous charges. I have no doubt that Mr. Lopez suffered a very serious cardiac illness and was the fortunate recipient of a heart transplant. However, Mr. Lopez was initially in the hospital in November of 2012, a month before Mr. Sotomayor failed to appear. Mr. Lopez did not have his operation until May of 2013. Given Mr. Sotomayor’s lack of credibility, I have no way of knowing how long he was in Canada before the date of his most recent arrest and on how many occasions. One thing is clear – he did not deal with his outstanding charges immediately upon his return; he only dealt with them after he was arrested on his present charges.

[37] These credibility problems with Mr. Sotomayor and Ms. Valle are virtually fatal to his bid for bail, especially given that the onus is on Mr. Sotomayor to justify why he should be released. Mr. Orr rightly points out that, in the broader scheme of things, Mr. Sotomayor’s criminal record is relatively minor and that many people with much more serious records are released on bail. But my assessment is not restricted to the four corners of Mr. Sotomayor’s record. My concern is with how his record was incrementally acknowledged and his dubious reasons for not appearing on his previous set of charges.

[38] The primary ground concerns in this case are obvious: s. 515(10)(a). Not only is Mr. Sotomayor a U.S. citizen, he spends the bulk of his time there, easily moving back and forth between the two jurisdictions. As already noted, he is not “ordinarily resident” in Canada for the purposes of s. 515(6)(b): see R. v. Oladipo (2004), 2004 46658 (ON SC), 191 C.C.C. (3d) 237 (Ont. S.C.J.).

[39] Following the review hearing, Mr. Sotomayor’s position on the primary ground has not improved. Mr. Sotomayor’s and Ms. Valle’s testimony before me confirms that the learned justice of the peace made the correct decision on this ground. Adding his grandparents (Mr. & Mrs. Ballesteros) as sureties does not persuade me that Mr. Sotomayor should be released. I am not satisfied that they could exercise the requisite degree of control over Mr. Sotomayor’s behaviour.

[40] Nor am I persuaded that utilizing electronic monitoring would push this case over the line in favour of release. Electronic monitoring is not a primary ground panacea. It does not prevent absconding, it merely notifies the authorities when someone has moved out of the zone in which they are meant to remain (i.e., in a house arrest situation): see U.S.A. v. Khadr (2008), 2008 41310 (ON SC), 234 C.C.C. (3d) 129 (Ont. S.C.J.) and U.S.A. v. Ugoh (2011), 2011 ONSC 1810, 269 C.C.C. (3d) 380 (Ont. S.C.J.).

[41] In R. v. Palijan, [2012] O.J. No. 6549 (S.C.J.), Hourigan J. (as he then was) dealt with a similar proposal for release involving Recovery Science Corporation. As he observed at paragraph 25, the company is focused on “gathering evidence of compliance and not preventing non-compliance.”[^1] When a condition of house arrest is accompanied by exceptions, ones that permit the accused person to be outside of the house in the company of his/her sureties (as is proposed in this case), electronic monitoring becomes more challenging. Given the limitations inherent in electronic monitoring, I am not persuaded that the very risky primary ground concerns in this case will be mitigated by the use of this technology.

[42] These reasons, focused on the primary ground, justify the dismissal of this application. For the sake of completeness, I turn briefly to the secondary and tertiary grounds, upon which Mr. Sotomayor was also detained.

[43] In terms of the secondary ground (s. 515(10)(b)), Mr. Sotomayor’s criminal record is not lengthy and contains no entries for offences of violence. However, he has been convicted of failing to comply with a recognizance, failure to appear, obstructing justice and driving while under suspension, all of which raise red flags when assessing the likelihood of future compliance. Mr. Sotomayor is not permitted to work or drive in Ontario, yet he continues to do both. I note that a number of the offences he currently faces are driving-related offences. I am concerned with Mr. Sotomayor’s inability and/or unwillingness to comply with court orders. I would dismiss the application on the basis of the secondary ground as well.

[44] As for the tertiary ground in s. 515(10)(c), all four factors enumerated in that paragraph are engaged by the alleged facts of this case: see R. v. M. (E.W.) (2006), 2006 31720 (ON CA), 223 C.C.C. (3d) 407 (Ont. C.A.). Combined with Mr. Sotomayor’s personal circumstances, his purported reasons for not appearing on his previous charges and his serious ties to the U.S., confidence in the administration of justice would be undermined by his release on bail.

CONCLUSION

[45] For these reasons, the application for review is dismissed. Mr. Sotomayor will remain detained in custody pending his trial.

TROTTER J.

Released: January 22, 2014

REASONS FOR JUDGMENT

TROTTER J.

Released: January 22, 2014

[^1]: Of course, the suitability of electronic monitoring will turn on the facts of each case. In R. v. Beales, [2013] O.J. No. 3841 (S.C.J.), the same judge was persuaded that electronic monitoring conducted by the same company was appropriate. As referenced in paragraph 19 of these reasons, many other judges and justices of the peace have come to the same conclusion. Other judges take a different view: see R. v. Young, [2013] O.J. No. 3986 (S.C.J.), per Croll J.