Her Majesty the Queen v. Arthavan Rehnu-Vasanthakumar, 2015 ONSC 2663

R. v. ARTHAVAN REHNU-VASANTHAKUMAR, 2015 ONSC 2663

COURT FILE NO.: 15-100000 43-00 BR

DATE: 20150501

ONTARIO

SUPERIOR COURT OF JUSTICE

Publication Ban pursuant to s. 517(1) of the Criminal Code

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

ARTHAVAN REHNU-VASANTHAKUMAR

Respondent

Malcolm Savage, Counsel for the Applicant, Her Majesty The Queen

Joel Hechter, Counsel for the Respondent

HEARD: April 8, 2015

Dunnet J.: (Orally):

REASONS FOR DECISION ON BAIL REVIEW

Overview

1The Crown seeks an order vacating the interim release order made by Justice of the Peace Hunt on February 23, 2015.

2The respondent is charged with armed robbery, wearing a disguise, firearms offences and failing to comply with his recognizance.

3The allegations are that on January 8, 2015 at 2:00 p.m., the applicant entered the Jewellery Exchange at 1921 Eglinton Avenue East in Toronto. The Exchange is a mall housing twenty to twenty-five vendors who operate their own jewellery booths. The applicant’s face was covered with a black balaclava and he was wearing leather gloves.

4He approached the booth operated by the two victims and threw a duffle bag onto the counter. He pointed an automatic handgun loaded with four rounds of ammunition at the victims. One raised his hands and the other dropped to the floor. The applicant pointed the gun at the head of the victim on the floor and demanded that the victims fill the bag with jewellery.

5An armed security guard observed the robbery, confronted the applicant and fired gunshots. The applicant was hit in the elbow, abdomen and thigh. The applicant ran outside, crossed the parking lot and entered a vehicle parked on the street where he was arrested by police and transported to the hospital.

6At the time of the robbery, the applicant had been released on a recognizance of bail for drug offences involving the alleged sale of 42 grams of cocaine to an undercover police officer in August and September 2013 and the seizure of 23 grams of cocaine, a cutting agent and digital scales located in a dresser in the basement of his parents’ home.

7The applicant’s criminal record includes five prior convictions for failing to comply with court orders.

The Reasons of the Justice of the Peace

8The evidence at the bail hearing lasted for three days. Immediately following submissions, the justice said:

Okay, thanks. Okay, I am ready to go with this. I am going to sort of be doing it in two parts. Some of the stuff from the evidence I wrote, like I said, basically on my own time and I will be reading that part and it will go very smoothly and then I will get into some other things which I am a little more likely to wander, but, again, I am not a machine.

9The reasons occupy thirty pages of transcript. Almost half of the reasons reiterate the medical evidence. The final five pages are devoted to a subject entitled: “Grounds.”

10After finding that the primary grounds in s. 515(10)(a) of the Criminal Code were not “the main issue,” the justice dealt with the tertiary grounds in s. 515(10)(c). The primary ground refers to the necessity of pre-trial detention to prevent the accused from absconding before trial, while the tertiary grounds relate to the need “to maintain confidence in the administration of justice”. He stated:

[T]he strength of the Crown’s case is quite significant. The gravity is also very significant as it is an armed robbery in a very public area. Again, near a courthouse, not too far from a police station, and there is a potential for a likely period of incarceration. In terms of circumstances that includes circumstances of the case, the circumstances of the offender and, in this case, we have an individual who got shot during the alleged offence and is suffering some injury which affects his walking and the use of his hand. He is mobile, but he is more limited than would be absolutely normal … .

11The justice remarked that the applicant did not have a record for violence and stated:

This case before this court is unusual. It is different. It involves a firearm, a disguise, and it is very serious and the plan being put forward is one of house arrest with the same sureties as on the drug charge and on – at the time of this offence, he had been put from house arrest where there had been no apparent issues to a curfew where he was back and forth to school and anything else he wanted to do before ten o’clock, and, significantly, when the defendant did not come home at the expected time when he would normally come home, the parents immediately phoned the police. So, they certainly were vigilant as much as they could be … .

12The justice then dealt with the secondary ground in s. 515(10)(b) – whether detention is required to protect the public - and asked whether there was a reasonable plan of release that would also facilitate a treatment plan at home. He remarked that such a plan would be of great benefit, but it was not the determining factor.

13After noting that the present allegations are considerably more serious than the other matters on the applicant’s criminal record, he continued:

Now, also, the court keeps in mind that on the tertiary ground, the test is a reasonably informed individual of the public and not just somebody who goes along with the current trends and, in this case, we have got several factors. The plan that is put forward is a significant bail with sureties who called the police when he didn’t get home at the time they expected him and that, prior to that, when he was on house arrest, he apparently complied with his terms, did not breach and, in this case, he has somewhat limited mobility. He is not crippled, but he is more limited and he is not going to be going to school. So, the primary ground is not much of a concern.

The tertiary ground has to be used in very rare cases. This is not quite one of them, although it is quite close, given the proximity to the court and to the police station of the attempted robbery and so the – on the secondary ground, he complied well with the bail conditions when he was on house arrest the last time. He has now got himself shot. Father pointed that part out. He might have learned something from it and he will – there is less than a substantial likelihood of him committing further offences.

The Positions of the Parties

14The Crown submits that the justice erred in law in finding that the respondent had met his onus on the secondary grounds by:

(a) failing to refer to the respondent’s prior record for breaching judicial interim releases;

(b) referring to irrelevant factors and unsupported assumptions, particularly that the respondent had learned a lesson from being shot; and

(c) failing to address critical issues regarding the suitability of the sureties, particularly their willingness to vary the existing recognizance to a curfew they admitted they did not agree with.

15The Crown submits that the justice erred in law in finding that the respondent had met his onus on the tertiary grounds by:

(a) finding that this was not a case in which the tertiary ground applied;

(b) failing to adequately address all of the relevant circumstances, in particular, the respondent’s past performance on judicial interim release with the same sureties; and

(c) failing to provide adequate reasons.

16The Crown submits further that the justice erred in law and principle by prejudging the outcome – ie., by deciding to release the respondent before hearing all of the evidence and submissions.

17The applicant asserts that a reading of the reasons as a whole demonstrates that the justice dealt appropriately with the secondary and tertiary grounds and found that the plan of supervision was adequate. It is submitted that the justice carefully reviewed the evidence in his reasons, which do not betray that he prejudged the outcome before rendering his decision. Therefore, he made no error in law or principle.

The Evidence at the Bail Hearing

18During her testimony at the bail hearing, the applicant’s mother agreed that her son was a drug addict in 2007. She testified that when she confronted him about using drugs, he denied it and she knew that he was lying. The evidence of the applicant’s father differed. He testified that his son was using drugs only once or twice a month, but otherwise, he was normal. The justice did not address this apparent conflict in their evidence.

19When he was reviewing the parents’ evidence, the justice commented that they had no prior knowledge of drugs or drug activity in their home and did not know how their son would have gained access to a firearm. He appeared to be satisfied that the parents had acted responsibly in calling the police when the applicant failed to return home after school and had also taken steps to install a security system in their home.

20The medical evidence occupied more than two days. Dr. Ken Berger was called by the applicant and qualified by the justice as an expert in trauma and rehabilitation. He did not treat the applicant. Rather, he reviewed the hospital records and undertook a cursory examination of the applicant in court.

21He testified that the gunshot wound to the elbow required open reduction and external fixation. The wound to the abdomen required a small bowel resection and the wound to the thigh produced a hematoma. Dr. Berger recommended rehabilitation for the thigh three times a week for twelve weeks, therapy for the elbow three times a week for six months and hand therapy. He maintained that the applicant will require active rehabilitative treatment for his ulnar nerve injury.

22It was Dr. Berger’s evidence that the hospital records failed to note any injury to the ulnar nerve and also failed to address treatment for the injury. In cross-examination, however, he acknowledged that the hospital records did address the ulnar nerve injury and recommended rehabilitative treatment in the form of passive range of motion exercises. He also acknowledged that the applicant’s orthopedic surgeon would be the best person to determine the extent of further intervention and advise a rehabilitation team of any restrictions.

23Vincent Lee, a registered nurse and Healthcare Manager at the Toronto East Detention Centre (TEDC), was called by the Crown. He testified that following the applicant’s release from Sunnybrook Hospital on January 23, 2015, he was housed in the TEDC medical wing and received medical care as directed by the hospital. Prior to his interim release on February 23, 2015, he was taken to the hospital on two occasions for treatment as directed by Sunnybrook personnel.

24Mr. Lee’s evidence was that if the hospital directed intensive rehabilitation several times a week, the TEDC would be able to fulfill the requirement either in-house or by transporting the applicant to an outpatient facility.

25He also testified that during his time in custody at the TEDC, the applicant refused medication on a number of occasions either because it upset his stomach or because it was unnecessary.

Analysis

26Immediately after the submissions concluded, the justice began to read his reasons. He summarized the evidence at length. However, he failed to engage in any reasoning or analysis or attempt to reconcile the contradictory evidence in chief and on cross-examination. He also failed to resolve conflicts in the medical evidence and made no reference to any health factors that he considered on the tertiary grounds.

27He dismissed the primary grounds because “they are not the main issue”. He then referred to the four factors on the tertiary ground and stated that this case was unusual and different, but did not explain why. Moreover, he did not explain why he said that this is not one of those rare cases where the tertiary ground applies, “although it is quite close.”

28The justice referred to the plan for house arrest naming the parents as sureties and stated that there had been “no apparent issues.” However, he failed to address past breaches of court orders, particularly the discovery of drugs and drug paraphernalia in the parents’ home in 2013.

29The justice then dealt with the secondary ground and whether a treatment plan could be facilitated at home. He reiterated that the Crown’s case was strong, but reached no conclusion on the secondary ground. Instead, he referred to the test of a reasonably informed individual on the tertiary ground, mentioned the plan again, and concluded that the primary ground was “not much of a concern.”

30In my view, a reading of the reasons as a whole leads to the inevitable conclusion that there is no reasoned analysis for his finding that the applicant had met his onus on the secondary and tertiary grounds. The discussion meanders from the secondary to the tertiary to the primary ground and appears to conflate the secondary and tertiary grounds. Therefore, the justice erred in law.

Review de novo

31It is difficult to conclude from his reasons whether or not the justice prejudged the outcome, given his failure to analyze and resolve conflicts in the evidence as noted above. A review de novo is warranted.

32Since the applicant’s release, his mother has been taking her son to the fracture clinic for his hand three times a week and to physiotherapy for his hand and leg once a week. She testified that she wants to make an appointment with the orthopedic surgeon to discuss the applicant’s mobility issues relating to his hand.

33The applicant relies on the transcripts and argues that the proposed plan of supervision adequately addresses any concerns on the secondary and tertiary grounds. It is submitted that when the applicant was released to his parents on house arrest in September 2013, there was no issue for nine months before his bail was varied to a curfew. It is the applicant’s contention that his health issues cannot be disregarded and there is no evidence that the TEDC can fulfill his rehabilitative requirements.

34At the time of these offences, the applicant was on a recognizance for trafficking in large amounts of cocaine. He is alleged to have breached those conditions by taking a loaded handgun into a crowded jewellery mall in broad daylight to commit an armed robbery. There was potential for gunfire and gunfire erupted. The events were captured on videotape.

35The transcripts reveal questions about the credibility of the applicant’s sureties relating to the extent of their son’s drug addiction and his involvement in the drug world. His father asserted that during the past two years, he has had no concerns about the applicant having any difficulties with drugs. He testified, “[H]e’s very fine. He’s good.” He made this assertion, despite the recovery of a significant amount of cocaine in the home where the applicant lived with his parents.

36The medical evidence before the justice was largely irrelevant. Dr. Berger misapprehended the contents of the hospital records with regard to the ulnar nerve injury and the hospital’s recommendation for therapy. The evidence is that Sunnybrook continues to direct the applicant’s care and the TEDC can fulfill his rehabilitative therapy either in-house or at an outpatient facility. There is no suggestion in the evidence that the applicant would not be able to continue with his rehabilitation while in pre-trial detention.

37The applicant has a record of repeatedly disobeying court orders. He has disregarded his sureties’ rules in the past. There is, in my view, a substantial likelihood that he will commit a criminal offence or interfere with the administration of justice unless he is detained.

38Taking into consideration all of the relevant factors, including the apparent strength of the Crown’s case, the gravity of the offences, the circumstances surrounding the commission of the offences, the fact that a firearm was used and the fact that the applicant is liable on conviction to a lengthy term of imprisonment, I find that the applicant’s detention is necessary to maintain confidence in the administration of justice.

Disposition

39Accordingly, the application is allowed and the release order is vacated. The applicant is ordered to be detained in custody on the secondary and tertiary grounds pending a further order of this court.

Dunnet J.

Released: May 1, 2015

CITATION: R. v. ARTHAVAN REHNU-VASANTHAKUMAR, 2015 ONSC 2663

COURT FILE NO.: 15-100000 43-00 BR

DATE: 20150501

ONTARIO

SUPERIOR COURT OF JUSTICE

Publication Ban pursuant to

s. 517(1) of the Criminal Code