R. v. Danicki, 2015 ONSC 3454
DATE: 20150529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MALCOLM DANICKI
Applicant
Beverley Richards and Corie Langdon, for the Crown
Chris Morris, for Mr. Danicki
HEARD: May 12 and 13, 2015
trotter j.
REASONS FOR JUDGMENT
A publication ban has been ordered for this proceeding
under s. 517 of the Criminal Code
1. Introduction
[1] Mr. Danicki, along with Vaughn Shears, is charged with the first-degree murder of Dwayne Goodwin and the attempted murder of Clayton Carter-Webber. Mr. Danicki applies for release under s. 522 of the Criminal Code.
2. The Allegations
[2] The events giving rise to this case occurred at about 5 p.m. on September 8, 2014. Late in the afternoon, Mr. Goodwin and Mr. Carter-Webber paid Mr. Shears a visit at his apartment building. There was a confrontation and Mr. Shears was shoved and pushed around by the two men. It would appear that Mr. Shears owed the men money.
[3] Mr. Goodwin and Mr. Carter-Webber left the building and walked to Danforth Avenue, about a block away. Surveillance footage shows Mr. Shears pacing around the lobby in an agitated state. He was on the phone the entire time. It is the theory of the Crown that Mr. Shears was recruiting associates to help him retaliate for what had just happened.
[4] Mr. Shears left the building and walked up to Danforth Avenue with another man. They entered a sports lounge on Danforth Avenue. Mr. Danicki and his friend, Dylan Howell, attended at the bar as well. Videotape footage shows them standing close to the bar where other patrons were watching baseball on television.
[5] Mr. Goodwin and Mr. Carter-Webber came into the lounge and there was another confrontation. Mr. Shears was pushed over a table. Mr. Danicki and Mr. Howell walked towards the scuffle. At that point, bar staff asked all of the men to leave.
[6] Once outside, Messrs. Goodwin and Carter-Webber found themselves surrounded by 7 men, including Mr. Shears and Mr. Danicki. What happened next was also recorded by security cameras from a number of nearby businesses. A physical confrontation erupted. Mr. Danicki can be seen winding up to punch someone. It is not clear whether he connected or not. Messrs. Goodwin and Carter-Webber tried to run away. They were chased by a number of the men, including Mr. Danicki. During the chase, one of the men, Sean Akkurt, unsheathed a knife with a 7” blade.
[7] Mr. Carter-Webber ended up being cornered at the entrance of a store. Mr. Akkurt stabbed him. Almost simultaneously, Mr. Goodwin ran back towards Mr. Carter-Webber, presumably to help him. He was sucker punched by Mr. Danicki. Mr. Danicki connected on at least one occasion. Mr. Goodwin dropped to the ground. As he got up, and staggered somewhat, Mr. Akkurt stabbed him too.
[8] Mr. Carter-Webber survived the attack. Mr. Goodwin did not. A witness at the scene said that Mr. Goodwin’s “guts” were coming out of his body as he lay on the curb, dying.
[9] Mr. Goodwin had a dog with him that day. When the altercation started, he let go of the leash and the dog ran into traffic. Instead of assisting Mr. Goodwin, who was obviously seriously injured, Mr. Danicki chose to rescue the dog, whose leash had become tangled under car. He was able to get someone in a nearby store to look after it.
[10] Later that night, Mr. Danicki went to the police, offering information about what had happened that day. In his statement, he portrayed himself as being in the wrong place, at the wrong time. He said that he went to the bar to play pool with Dylan Howell, who gave a similar statement. It is the contention of the Crown that Mr. Danicki went to the lounge to assist Mr. Shears. In his statement, Mr. Danicki did not volunteer Mr. Shears’ presence at the scene, but he later said he recognized him in a photo line-up. Moreover, Mr. Danicki did not advise the police that his cousin was one of the 7 attackers. Mr. Danicki said that he saw a knife at some point during the altercation and saw someone swing it at Mr. Goodwin. Fundamentally, he did not tell the police that he was part of the fight. In particular, he did not reveal that he sucker punched Mr. Goodwin seconds before he was fatally stabbed. In short, Mr. Danicki gave a statement in which portrayed himself as the peacekeeper, trying to protect a vulnerable “youth” (i.e., Mr. Shears).
[11] Of course, a bail hearing is not meant to be a mini-trial and I am not in a position to resolve the contentious issues in this case. However, the evidence strongly points to a scenario in which Mr. Shears wanted to retaliate for being roughed up by the victims and enlisted numerous people to assist him. Mr. Danicki was one of his recruits.
3. Mr. Danicki and the Release Plan
[12] Mr. Danicki is 20 years old. He is the father of a very young child. He has no criminal record. While he has been involved in numerous proceedings under the Youth Criminal Justice Act, S.C. 2002, c. 1, since age 13, he has no findings of guilt. He was on bail at the time of this incident.
[13] Mr. Danicki left high school before completing Grade 12. He is attempting to upgrade his education so that he can attend college. He has worked for his mother’s company in the past. Employment at that company is available if he is released.
[14] It is proposed that Mr. Danicki reside with his parents and be subject to house arrest. A significant amount of money can be pledged. Mr. Danicki’s grandmother, who is involved in the real estate business, is prepared to pledge $500,000 or more in support of Mr. Danicki’s release. However, she lives in Mississauga, a considerable distance away from the east end of Toronto, where Mr. Danicki’s parents live.
[15] Mr. Danicki’s mother and stepfather are also prepared to act as sureties. His mother is able to pledge $25,000 and supervise Mr. Danicki at her company’s worksites. His stepfather is prepared to pledge $4,000. He testified that Mr. Danicki could work with him at a property management company.
[16] Mr. Danicki’s mother was a surety on her son’s outstanding bail. When he went to provide his statement to the police shortly after this event, he was in violation of his curfew. Mr. Danicki’s mother said she was aware her son was going to speak to the police, but she did not ask what it was about. When pressed about this in cross-examination, she was rather flippant, saying, “I figured they were there to serve and protect.” She did not ask him about it afterwards. This is very worrying conduct for someone who aspires to be a surety in a murder case.
[17] Mr. Danicki’s sister is also prepared to act as surety in a modest amount. She was a surety for her brother in the past. However, she admitted that she failed to enforce a no-contact condition that prevented Mr. Danicki from associating with Dylan Howell.
4. Analysis
[18] Because Mr. Danicki was on bail at the time of these events, the onus is on him to justify his release on the attempted murder charge: see Criminal Code, s. 515(6)(a)(i). By virtue of s. 522(2), he must discharge the onus on the first-degree murder charge.
(a) The Primary Ground
[19] The Crown does not oppose release on the primary ground. I accept this concession and find that Mr. Danicki has discharged his onus on this basis. He has strong connections to Toronto in all aspects of his life. He is not a flight risk.
(b) The Secondary Ground
[20] Mr. Danicki has not discharged his onus on the secondary ground. While he does not have a criminal record, it is clear that he has constantly been in trouble with the police, resulting in many dealings with the courts extending back to when he was just 13. Mr. Danicki’s parents were not able to effectively control him then. I doubt they will be able to do so now.
[21] While I am impressed by the amount of money that the sureties are prepared to pledge (especially that offered by Mr. Danicki’s grandmother), overall, I am not impressed by the plan of supervision. I have already identified my concerns above.
[22] There is one further factor that causes me concern on this ground, and it relates to the statement that Mr. Danicki gave to the police. Putting aside the use to which it might be put at trial, for the purposes of this bail hearing, the statement represents a brazen attempt to obstruct justice. There can be no doubt that Mr. Danicki made the statement and that it was voluntary. Moreover, given that the incident was caught on video security cameras, I am able to comfortably conclude that the statement is seriously at odds with what happened on the street that afternoon. This failed attempt to deflect responsibility away from himself ended up temporarily diverting the police in their investigation, possibly playing a role in Mr. Akkurt being able to abscond, who is believed to be in Turkey.
[23] In conclusion, Mr. Danicki has not established that there is no substantial likelihood that he will commit offences or interfere with the administration of justice if released on bail.
(c) Tertiary Ground
[24] Mr. Danicki has also failed to discharge his onus under s. 515(10)(c) of the Criminal Code.
[25] In R. v. St-Cloud, 2015 SCC 27 [St-Cloud], the Supreme Court of Canada recently addressed and essentially revived detention on this basis. Appellate courts had interpreted the court’s previous decision in R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 (S.C.C.) [Hall] very narrowly. In Hall, the Chief Justice wrote that detention on the tertiary ground should only occur in “relatively rare” circumstances. Some courts took this to mean that “rareness” should operate as an independent threshold under s. 515(10)(c). Other courts held that detention should only be ordered on this basis when the offence is “inexplicable”, “unexplainable” or unusually “heinous.”
[26] In St-Cloud, the Court held that this is wrong approach to s. 515(10)(c). As Wagner J. said for the unanimous court at paras. 50 and 87:
Furthermore, I agree with the appellant that detention may be justified only in rare cases, but this is simply a consequence of the application of s. 515(10)(c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision.
Section 515(10)(c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
The four circumstances listed in s. 515(10)(c) Cr. C. are not exhaustive.
[27] In this case, the application of the four criteria favours detention. This does not mean that detention is mandatory in these circumstances (as was thought to be the case in light of some of the language in R. v. Mordue (2006), 2006 CanLII 31720 (ON CA), 223 C.C.C. (3d) 407 (Ont. C.A.), at pp. 415-416)): see St-Cloud, at paras. 66 to 71. However, looking at all of the circumstances, I conclude that the release of Mr. Danicki would undermine the public’s confidence in the justice system.
(i) Apparent Strength of the Prosecution’s Case (s. 515(10)(c)(i))
[28] It has long been accepted that the strength of the Crown’s case may appear artificially strong at a bail hearing, owing to the informal nature of the proceedings: see St-Cloud, at para. 57 and R. v. Blind (1999), 1999 CanLII 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.). Most bail hearings proceed on the basis of a written summary of the evidence. However, in more serious cases, and this case is a good example, the prosecution may choose to rely on viva voce and demonstrative evidence to provide a more comprehensive and authentic preview of its case.
[29] In St-Cloud, the court stressed the importance of evaluating the strength of the Crown’s case at the bail stage. As Wagner J. said at para. 58:
…the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his her balancing exercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence.
Judges must also consider potential defences and evidence that casts doubt on the strength of the prosecution case: see R. v. Coates, 2010 QCCA 919 and St-Cloud, at para. 59.
[30] There will no doubt be a serious dispute at trial concerning Mr. Danicki’s level of responsibility in the attack on the two victims. However, the video evidence powerfully demonstrates his integral participation in the incident.
[31] Mr. Morris points to his client’s statement as evidence that his attendance at the scene was merely coincidental and innocent. As Mr. Danicki said, he was at the lounge to play pool. However, given how profoundly misleading the statement is as a whole, I am not prepared to place any weight on it at all at this stage. I do not accept this assertion in any event.
[32] In short, the prosecution evidence is very strong.
(ii) Gravity of the Offence (s. 515(10)(c)(ii)
[33] As the court held in St-Cloud, at para. 60, the gravity of the offence is determined solely by the maximum (and, in some cases, the minimum) sentence available for the offences with which an accused person is charged. In this case, the charge of first-degree murder carries a mandatory term of life imprisonment (without parole for 25 years), while attempted murder carries a discretionary life sentence.
(iii) The Circumstances Surrounding the Commission of the Offence (including the use of a firearm (s. 515(10)(c)(iii))
[34] This factor requires a more qualitative analysis of the allegations. As Justice Wagner explained in St-Cloud, at para. 61:
Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10)(c), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account. [Emphasis added]
[35] There are numerous features of this case that make the offences particularly disturbing. Mr. Danicki was one of 7 men involved in an attack on 2 victims. This concerted conduct makes the offending more serious. Mr. Danicki played an instrumental part in both offences, especially the killing of Mr. Goodwin.
[36] No firearm was used in this case. However, a knife was used to inflict injuries on both victims. Experience in the courts shows that knives are a serious threat to public safety in our community. A knife can be just as lethal as a gun, and far easier to obtain. Indeed, in Hall, the accused used a knife to kill his victim. See also R. v. James, [2010] O.J. No. 2262 (Ont. S.C.J.).
[37] Another disturbing aspect of this case is that the 7 men involved in these serious offences decided to settle their dispute on the sidewalk of a very busy street at 5:00 p.m. The video footage shows many people in the immediate vicinity as the events unfolded. While a firearm was not used, the actions of these men put others in danger and created a frightening situation, which quickly became horrific after Mr. Goodwin was essentially disemboweled: see R. v. Le (2006), 2006 MBCA 68, 240 C.C.C. (3d) 130 (Man. C.A.), at p. 140.
(iv) The Potential for a Lengthy Term of Imprisonment (s. 515(10)(c)(iv))
[38] Little need be said about this factor. It is obvious that, if convicted of the offences charged, Mr. Danicki will be punished severely. Even if he manages to avoid full liability on the murder charge, he will still be subject to a lengthy term of imprisonment.
(v) Balancing the Factors
[39] As I have already said, all four factors point to detention under s. 515(10)(c). As Wagner J. held in St-Cloud, at para. 88:
In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.
[40] That is the situation in this case. The victims of the attack were made vulnerable by the fact that they were outnumbered almost 4 to 1. Reasonable and knowledgeable people in the community would have their confidence in the administration of justice undermined by the release of Mr. Danicki, given the formidable evidence of his involvement in these disturbing offences, committed on a busy city street.
CONCLUSION
[41] The application is dismissed.
Trotter J.
Released: May 29, 2015
R. v. Danicki, 2015 ONSC 3454
DATE: 20150529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MALCOLM DANICKI
Applicant
REASONS FOR JUDGMENT
Trotter J.
Released: May 29 2015