ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

EMMANUEL ANSAH

Applicant

• and -

HER MAJESTY THE QUEEN

Respondent

Sonya Shikhman, for the applicant

Paul Zambonini and Andrea McGillivary, for the Crown

HEARD: February 13, 2015

McCombs J.

RULING

Overview

[1] The applicant applies for bail on a charge of first-degree murder. This is his second attempt to obtain bail. The first application for judicial interim release was heard in this court on December 20, 2013, by Harvison-Young J., who dismissed the application in careful and thoughtful oral reasons delivered the day of the hearing. In her reasons, she concluded that the secondary grounds were sufficient to dismiss the application, but added that the application also fails on the tertiary grounds.

[2] The facts are chilling. It is undisputed that this was an execution-style shooting in broad daylight.

[3] This is a renewed application based on the assertion that there has been a material change in circumstances that support the granting of bail. It is not an appeal.

[4] In denying bail, the motion judge made mention of “some frailties” in the Crown’s case.[^1] At that time the applicant had not yet had his preliminary inquiry. He has now been committed for trial. This means that there is now a judicial determination that a reasonable jury, properly instructed, could convict on the evidence placed before the preliminary hearing judge.

[5] The committal for trial has not been challenged by certiorari.

[6] I accept, as did the application judge at the first hearing, that although there are some frailties in the Crown’s case, the case against the applicant is strong.

[7] The best that can be said of the purported material change in circumstances is that some headway was made in cross-examination of some of the Crown witnesses. However, I am unable to say that this is not a strong case.

[8] It follows that I am not satisfied that there has been a material change in circumstances.

[9] Ms. Shikhman agreed during oral submissions that if the application fails on the tertiary grounds, it is not necessary to address the secondary grounds.

Discussion and Legal Principles Related to the Tertiary Ground

[10] Although this is a de novo application and not an appeal, I will nevertheless address the tertiary grounds in the context of this case.

[11] A person charged with murder must be detained in custody unless he or she shows cause why detention is not justified.

[12] The relevant parts of the tertiary ground set out in s. 515(10) (c) of the Criminal Code are as follows:

• …where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all of the circumstances, including

• the apparent strength of the prosecution’s case,

• the gravity of the nature of the offence,

• the circumstances surrounding its commission, and

• the potential for a lengthy term of imprisonment.

[13] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, 4 C.R. (6th) 197, the Supreme Court of Canada emphasized that the tertiary ground for detention must be used sparingly. In denying bail, courts must not succumb to public opinion. Instead, the bail provisions must be applied with regard to the Charter s. 11(e) entitlement not to be denied bail without just cause.

[14] I have already indicated that I am not persuaded that there has been a material change in circumstances. The Crown’s case remains strong; the offence is extremely grave; the circumstances surrounding the commission of the offence are horrific; and the applicant, if convicted, faces a mandatory life sentence without eligibility for parole for 25 years.

[15] In the circumstances, like the judge in the first application, I conclude that detention is necessary in order to maintain confidence in the administration of justice.

[16] In the result, the application is dismissed.

McCOMBS J.

[^1]: Transcript p. 131, line 20,