R. v. G.C., 2015 ONSC 1134

COURT FILE NO.: CR-14-10000286

DATE: 20150220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. G.C.

BEFORE: Justice Spies

COUNSEL: Warren Thompson and Rebecca Law, for the Respondent/Crown

Donald Powell, for the Applicant/G.C.

HEARD: December 5 and 19, 2014

Decision ON JUDICIAL INTERIM RELEASE APPLICATION

Subject to any further Order by a court of competent jurisdiction, this application and these reasons are subject to publication restrictions under ss. 517 AND 522 of the Criminal Code.

Introduction

[1] The applicant, G.C., sought an order granting him judicial interim release on a recognizance in the total amount of $25,000 without deposit, with two sureties and with appropriate conditions of release including house arrest. Mr. C. has been charged with second degree murder in connection with the death of J.I. on August 30, 2014.

[2] Pursuant to s. 522(2) of the Criminal Code, the onus was on Mr. C. to show cause why his detention in custody was not justified within the meaning of ss. 515(10). Although the Crown was not in a position to consent to the release of Mr. C., after two hearings before me, conditions for his release were worked out with counsel and I was satisfied that Mr. C. be released on those conditions. For the purpose of the record, this is a summary of my reasons in making that order.

The Circumstances of the Alleged Offence

[3] Given the charge, the circumstances of the allege offence obviously warranted careful consideration. Detective Sergeant Browne is the officer in charge and he provided some evidence with respect to the investigation thus far. Mr. C. also testified and he voluntarily gave evidence about what happened at the time Mr. I. died.

[4] Mr. C. was arrested on September 30, 2014 as a result of a description provided by an eyewitness of the two assailants. That description matched video surveillance of Mr. C. and the person he was with when he was using an ATM machine. After his arrest Mr. C. provided a video-taped statement to police which he conceded was given voluntarily and is true when he testified before me. In the course of that statement Mr. C. identified the person who was with him as R.P. and he has now also been charged on a separate indictment. Based on the evidence of the one eyewitness, it is the Crown’s theory that it was Mr. P. who inflicted the first blow, punching Mr. I. in the face causing him to fall backwards onto the cement and who then kicked and stomped on his head.

[5] The eyewitness was close enough that he was able to give very detailed descriptions of the clothing and the blows inflicted by the two assailants. The autopsy report is not yet final but Detective Sergeant Browne understands that there are two distinct areas where there is evidence of two stomps to the victim’s head.

[6] The only factual issue with respect to Mr. C.’s culpability is that the eyewitness told police that the “shorter guy”, a reference to Mr. C., kicked the victim’s ribs with the top of his foot almost like he was trying to wake him up. He said that it would have been painful but not enough to hurt the victim. The eyewitness described it by stating that it was as if Mr. C. thought his buddy was drunk and he was trying to wake him. This is denied by Mr. C. who testified both by way of his statement to police and in evidence before me that he did not touch the victim in any way and that he had no reason to hit him. He said he knew this man and had no issues with him.

[7] On the night of the incident, Mr. C. told police that he had smoked a couple of marijuana cigarettes (about two grams of marijuana) before leaving his apartment at 11:30 p.m. He and Mr. P. went to a nearby bar called X where they consumed four shots of alcohol and four beers. They took four beers with them and left the bar at about 2 a.m. Mr. C. paid the bill with a debit card but the receipt does not provide any detail. Detective Sergeant Browne recalled it was in the $150-$200 range but based on Mr. C.’s account this included food.

[8] Mr. C. testified that after leaving the bar he and Mr. P. ran into Mr. I. The cause of the fight, according to Mr. C., was because after speaking with Mr. I. for about 20 minutes and giving him some of their beer, Mr. I. became somewhat belligerent towards Mr. P. and called him a “faggot” in Spanish. Mr. P. took offence to this and as a result assaulted Mr. I.

[9] Mr. C. candidly admitted that had he not been found by police, he probably would not have come forward. Since his arrest, however, there is no question that he has fully cooperated with police. Detective Sergeant Browne admitted that they had no idea who the second assailant was until Mr. C. advised them of Mr. P. He also confirmed that Mr. C.’s narrative of what occurred on the night of the incident was not spot-on but that save for not admitting any kicks to the victim’s ribs, the rest of Mr. C.’s statement has the ring of truth in terms of what happened that evening. His evidence will be an important part of the Crown’s case against Mr. P. Mr. C. testified that he is prepared to testify against Mr. P. He believes that he has been threatened indirectly by Mr. P. while incarcerated but said that this has made him more inclined to testify.

The Initial Plan for Release

[10] When the application was filed, the plan was that there be two sureties, Mr. C.’s mother in the amount of $5,000 and his father in the amount of $20,000. It was proposed that Mr. C. reside with his mother and be subject to house arrest save for going to work and other limited exceptions.

[11] The material filed in support of the application included an affidavit from the warehouse manager, T.F., where Mr. C. worked from May 22, 2013 until his arrest. Mr. F. described Mr. C. as a “very hard-working, dedicated and focused employee”. In his affidavit Mr. F. said he had canvassed Mr. C.’s co-workers and they all supported his return to work. Several letters from co-workers were filed in support attesting to Mr. C. being well-mannered, kind and hardworking. Mr. F. himself said he was prepared to “keep watch over the applicant during the workday and ensure that he complies with all conditions of his bail.”

[12] It seems that Mr. F. was not aware of Mr. C.’s criminal record when he swore his affidavit. Once he was advised of this, and on the eve of the first day of the hearing, he sent an email to Mr. Powell advising that after speaking with the executive of his company and now knowing of Mr. C.’s “recent past with drugs and incidents of assault and battery”, the company could no longer support him and allow him to come back to work. Mr. F. was clearly devastated and said so in this email as he wanted to support Mr. C. He offered to prepare a letter of recommendation for any job that Mr. C. seeks and based on his evidence I am confident that that letter will be very positive despite the circumstances.

[13] When counsel attended on December 5th, I was advised of a revised plan which would include Mr. C. having the same sureties but living in an apartment near whatever new job he found and wearing an ankle bracelet for electronic monitoring for alcohol and his location. Mr. Powell requested time to put this plan in place. Rather than adjourn the entire hearing it was decided that the witnesses would be called and the hearing would then be adjourned.

The Evidence on the Hearing Concerning the Circumstances of G.C.

[14] Mr. C. provided an affidavit and testified on the hearing. He was born in Guatemala and was adopted when he was eleven months old. His adoptive parents have since separated. Mr. C. is a Canadian citizen and has never returned to Guatemala and has no real connection to that country apart from the fact that he was born there. As such the Crown did not suggest that Mr. C.’s detention was necessary on the primary ground to ensure his attendance in court.

[15] Mr. C. is now 22 and despite his young age he has an extensive criminal record. The record provided by the Crown was entirely in the form of Case Tracking. Mr. C. also disclosed his criminal record in his affidavit. There are some discrepancies I have since noticed which were not addressed at the hearing and Mr. C.’s evidence discloses some convictions not noted by the Crown. I have included these in italics although I only have disposition dates for them:

Conviction

Date of Offence

Disposition

Aggravated Assault, Uttering Threats and Theft Under $5,000 (YCJA

Six months deferred custody and supervision order and 24 months’ probation on each charge concurrent. Disposition date of March 18, 2009.

Aggravated Assault

May 2008

Guilty plea; six months deferred custody and 18 months’ probation. Disposition date of April 29, 2010.

Threatening Bodily Harm

June 2008

Guilty plea; six months deferred custody plus 18 months’ probation. Disposition date of April 29, 2010.

Theft Under

August 2008

Guilty plea; six months deferred custody and 18 months’ probation. Disposition date of April 29, 2010.

Assault and Fail to Comply and

Theft Under $5,000

August 2010

Guilty plea; 54 days’ pre-trial custody and 36 days on each concurrent plus two years’ probation. Disposition date of November 10, 2010.

Fail/Refuse to Comply YCJA

August 2010

Reprimand. Disposition date of November 10, 2010.

Assault with a Weapon and Fail to Comply with Probation

Six month conditional sentence plus 18 months’ probation. Disposition date of June 3, 2011.

Failure to Comply with Recognizance

Suspended sentence with 18 months’ probation, concurrent. Disposition date of June 3, 2011.

Failure to Comply with Probation

February 2012

$100 Fine. Disposition date of April 8, 2013.

[16] As can be seen from the record, Mr. C. was last in trouble with the law in February 2012 and so there has been a two and one-half year gap. Mr. C. attributed his youth record to family and school problems. He was asked why things would be different now given he has a number of convictions for failing to comply with terms of bail. He responded that he has matured a lot and that in previous years he did not have a job. He had been working before his arrest and was excited to go to work every day. While working Mr. C. earned seven different licences for operating forklifts and gained experience as a shipper and receiver as well as in construction. He is pretty confident he can find a job in a warehouse or in building kitchens. I share his confidence given the skills he has acquired and the support he has from Mr. F.

[17] Mr. C. admitted that he does use cocaine sometimes but said that he mostly smokes marijuana. He told police that on weekdays he will do a couple of “bong heads” and on weekends he can go all out. He testified, however, that he is not a drug addict and that he could also do without alcohol. He hasn’t had any cigarettes since September 30,2014. Notwithstanding his use of marijuana and alcohol, Mr. C. maintains that he has turned his life around.

[18] Both of Mr. C.’s parents were present for both hearings as was his father’s new wife. His adoptive father, Mr. W., swore an affidavit and testified at the hearing. He lives in a house with his wife and his wife’s 92 year old mother, whom his wife cares for full-time.

[19] Mr. W. testified that when his son was 16 he was facing a number of charges including a serious assault and he stayed with his father under house arrest terms. He had some difficulty getting his son to agree to stay in the house and his son chose to go live with his mother. After that, Mr. W. saw his son infrequently, mostly at family gatherings. Because of what was happening then Mr. W. was afraid that things would go downhill for his son but in fact since then he has seen the opposite; he has seen his son mature significantly. Mr. W. is impressed that his son held on to a job for a year and a half and with all of the support his fellow employees and boss have given. He said ironically since this arrest he has had more contact with his son and he is also very impressed with the calmness that he has shown and the fact that what he has reported with respect to this incident has been corroborated by the facts as they have come out. In his opinion his son has shown great maturity in a very difficult and frightening situation. Mr. W. was clear that in his mind his son’s arrest related very clearly to his problem with alcohol and drugs.

[20] Mr. W. testified that he was not offering his son a home. He has unfortunately been diagnosed with a serious health issue for which he still needs to receive treatment. He said it was possible for him and his wife to help his son get established in an apartment and help him find a job and that they would be more actively involved to ensure that he abided by the conditions or he could live at his mother’s house. Mr. W. testified, however, that he had some concerns about his son going back to his mother’s and that it would require active supervision and monitoring to ensure that he did not use alcohol or drugs. He stated, however, that his son does not want to go back to prison, that his time there is not productive and that his son has told him he is scared in prison. In cross-examination it came out that Mr. W. believes that his ex-wife is an alcoholic. He believes that it would be easier to control Mr. C.’s alcohol consumption if he were in his own apartment.

[21] Mr. W. stated that he and Mr. C.’s mother would pay the first and last months’ rent for an apartment. It was also proposed that Mr. C. wear an electronic monitoring bracelet which would cost $560 per month. Mr. W. testified that he did not have any fear that his son would abscond. His Canadian passport expired three years ago and he thinks he has it in his possession.

[22] Mr. W. testified that his son’s employment was critical as it had been a huge blow to his son that his former employer reversed their decision about taking him back. He said it would be important to allow his son to actively search for work and that once he got a job it would be better that he lived near that job.

[23] Mr. C’s adoptive mother, Ms. C. also swore an affidavit and testified at the hearing. She is disabled as a result of an accident and receives disability payments. She is home most of the day and seldom away from her home for more than an hour. She is very dependent on her son helping her in the house. In Ms. C.’s opinion as long as her son has a job the chances of further bad behaviour are “slight”.

[24] In cross-examination, the difficulties Ms. C. has had with her son and his compliance with the terms of his bail when he was living with her in October 2008, January 2010, August 2010 and October 2011 were explored. In fact she admitted that her son’s entire criminal record was accumulated while he was living with her, save for the first assault charge. Ms. C. admitted that in the past she revoked her son’s bail once because he was failing to meet with his probation officer at the right time.

[25] Ms. C. testified that she had a problem with alcohol but she completed rehabilitation in 2004 and has not had any problem since. She said that she has, however, consumed alcohol since 2004 and that she started attending Alcoholics Anonymous again a month and a half ago. Ms. C. testified that she never has any alcohol in the house.

The Revised Plan for Release

[26] After hearing the evidence, I suggested to counsel that Mr. C. live for a short period of time with his father and stepmother while he looked for work and that he would then be able to find a place to live that was convenient to his workplace. I was advised by Mr. Powell that Mr. W. and his wife were prepared to do this although they would need time to organize the space. Mr. W. also said the ankle bracelet for electronic monitoring would need to be a condition if he were to agree to this and it was proposed that the bracelet would be one that would determine whether or not Mr. C. was drinking. Although an ankle bracelet could also be used to confine Mr. C. to the perimeter of the house, that would not work if he was looking for a job.

The December 19th Hearing

[27] When the matter returned before me on December 19, 2014, Mr. Thompson maintained his position that Mr. C. be detained and stated that the Crown was not in a position to consent to his release. However, he also advised that he had worked out some terms with Mr. Powell which would be satisfactory if I determined that Mr. C. be released.

[28] Mr. Thompson raised a concern about Ms. C. being a surety due to her own problems. He was concerned that she was an enabler. Counsel suggested that Mr. C. be released with only his father as surety so that his father had complete control. Although I truly hope that Ms. C. has overcome her difficulty with alcohol, given the evidence that I heard I felt it more prudent that Mr. C. live with his father until he found another job and then found an apartment he could afford. I did not restrict visits by Mr. C. to his mother, as suggested by the Crown, leaving that issue to be determined by his father.

[29] Mr. W. and his wife were agreeable to what I suggested; namely that their son live with them until he found another job. However, Mr. W. advised that he was now only able to pledge $15,000. He explained that given his own health issues and the cost he would incur to get his house organized to have his son live with him, he could not afford more. The Crown raised no concern about this reduction. It did not cause me any concern given the obvious strength of Mr. W. as a surety and his strong desire to help his son turn his life around.

[30] Mr. Powell had determined that alcohol monitoring was possible using an electronic bracelet from Recovery Science Corporation. The bracelet tests for alcohol every 30 minutes, 24/7 and it is done without any participation of the wearer. The results are delivered to headquarters and the monitoring is continuous. The Crown can access the information without any court order. Apparently this system is being used in the Provincial and Superior Courts. The Crown was content that that monitor be used.

[31] I was impressed by the fact that by the time of the second hearing Mr. W. had prepared a document headed “Bail Conditions for House Arrest at [#] S. Ave.”. This document set out in very clear terms what Mr. W. expected as “the rules and discipline of the household”. Mr. C. had signed this document accepting these rules and acknowledging his understanding that failure to abide by them would mean that his father would revoke his willingness to be his surety and he would return to detention.

[32] Mr. W. also expressed concern about the fact that he is employed and has his own health issues. After some discussion with counsel it was agreed that in the circumstances Mr. C. should be able to go to job interviews on his own provided it was for a scheduled job interview as verified by Mr. W. It was also agreed that Ms. C. would pay for half of the monitoring and help with the first and last months’ rent once Mr. C. was in a position to get an apartment.

[33] I felt very comfortable with this revised plan for release. My confidence was bolstered by the evidence of Detective Sergeant Browne who was asked by Mr. Powell whether, in his opinion, Mr. C. would represent a threat to the community if certain stringent terms of release were imposed including that Mr. C. be carefully monitored by his parents, wear an electronic bracelet and not consume alcohol or drugs, Although Mr. Thompson pointed out that it is ultimately the Court’s opinion that matters, not the officer’s, he did not strongly object to the officer answering the question and so I permitted it. The officer testified that based on the totality of what he knows of Mr. C.’s background, he seemed to turn his life around and his role in the incident was minimal. In his personal opinion if all of the conditions in question are in place he does not believe that Mr. C. would be a threat to the general public.

Disposition

[34] For these reasons I concluded that Mr. C. had met his onus under s. 522 of the Criminal Code and ordered that he be released on an undertaking with conditions and a recognizance with his adoptive father, Mr. W., as surety in the amount of $15,000. The conditions included that he reside with his father at [#] S. Ave., Toronto under house arrest unless in the accompaniment of his father or an adult approved of by his father. Another exception to house arrest was granted if Mr. C. obtains a job approved of by his father in which case he may attend work and travel to and from work in the absence of his father or his designate. The other conditions imposed require that Mr. C. comply with the rules of his father’s household, as set out in the document he signed, wear the ankle bracelet that will continuously monitor alcohol consumption, keep the peace and be of good behaviour, abstain from communicating directly or indirectly with Mr. P., deposit his passport with Detective Shannon Dawson, not possess any firearm or weapon, and abstain from the consumption and/or possession of alcohol and illegal drugs.

SPIES J.

Date: February 20, 2015