ONTARIO

SUPERIOR COURT OF JUSTICE

OTTAWA COURT FILE NO.: 15-M7867

DATE: September 16, 2015

B E T W E E N:

HER MAJESTY THE QUEEN

Tim Wightman, for the Respondent Her Majesty the Queen

Respondent

• and -

DAVID DUBOIS

Ewan Lyttle and Brett McGarry for the Applicant

Applicant

HEARD: August 10, 11, 12, 13 & 14, 2015

REASONS FOR DECISION

James, J

Overview

1This is a bail hearing for David Dubois who is charged with second degree murder in connection with the death of Connor Stevenson on April 14, 2015.

2For the reasons that follow, I have determined that Mr. Dubois ought to be detained in custody pending trial.

3At the time of his death, Connor Stevenson was an 18 year old secondary school student. The accused, Mr. Dubois, is now 20 years old; he was 19 when he was arrested.

4The victim and the accused were friends. They had known each other for about two years. They both worked part-time at the same donut shop. The prosecution alleges that the accused arranged to meet the deceased to purchase about $100 worth of marijuana. The meeting was set to take place in a stairwell of the apartment building where the deceased lived. The accused attempted to leave without paying. A struggle ensued, during which the deceased was stabbed four times. He died a short time later. The police theory is that the accused lured the deceased to the meeting with the intention of taking the marijuana without paying for it. This theory is based in part on the statement of Kevina Frances who accompanied the accused to the apartment building in question. In her statement to the police Ms. Frances said that the accused told her that he intended to rob Mr. Stevenson. After the attack, another witness, Aaron Villa, a friend of the accused, said that the accused told him that he had just pulled a “lick”, meaning a robbery, and had stabbed someone in the leg. The phone records of the accused show that he set up the meeting with the deceased but made it appear that the purchasers would be two women. There is video evidence from surveillance cameras located at various points around the apartment building. This evidence shows both the accused and Ms. Frances entering the building and later running out of it. Although the picture quality is poor, Crown counsel contends that the video shows that the accused is holding a knife as he and Ms. Frances run out of the building. They entered a waiting car driven by Mr. Villa, who was unaware of what had just happened in the stairwell.

5There are three specified grounds in the Criminal Code for detaining a person in custody prior to trial. Each is to be assessed independently of the others. Detention can be ordered on the basis of any one or more of the enumerated grounds. They were previously referred to as the primary, secondary and tertiary grounds. Although these labels are no longer used in the Criminal Code, they are still commonly used to differentiate the basis upon which a person can be detained. They are as follows:

a) To secure the attendance of the accused at all required court appearances;

b) To protect the public, including a victim or witness to the offence, having regard to all the circumstances, including any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice; and

c) To detain the accused when detention is necessary to maintain confidence in the administration of justice.

6The principles governing interim judicial release before trial include the following considerations:

1. A person who has been charged with a crime is entitled to the presumption of innocence unless and until his or her guilt is proved beyond a reasonable doubt;

2. An accused person has a constitutional right to be granted bail on reasonable terms unless just cause for detention is shown;

3. The release of an accused person pending trial is the norm; pre-trial detention is exceptional; and

4. Where a person is charged with murder, the onus is placed on the accused person to show just cause why he or she should be released. This is different from the usual situation where in less serious charges the onus rests with the prosecution to justify why a person ought to be detained.

The Defence Position and Proposed Sureties

7The position of the defence is that the prosecution case is not strong. An important Crown witness, Kevina Francis, lied to the police and gave differing versions of what happened. The defence points to Ms. Francis as a more likely perpetrator. In support of this contention, the defence referred to Ms. Frances’ relationship with Arnold Kassongo. Mr. Kassongo is well known to the police and has a prior record for robbery. Unlike the accused, Kevina Frances was not friends with the deceased and promptly disappeared after the attack. She was difficult to locate. One witness who was familiar with Kevina Frances said she was known for “setting people up”. Her uncle said that he didn’t know what she was capable of. In her statement to the police Ms. Frances told several different versions of what happened on the day in question and it appears that in the last and supposedly most “truthful” version, she continued to leave out facts that tended to show her in a bad light.

8In addition, defence counsel says that the accused is a good candidate for release pending trial. He is a youthful offender with no criminal record. He has a solid family background and his mother and stepfather, the proposed sureties, are well aware of their duties as sureties. Their evidence is that the accused has not exhibited anti-social or aggressive behaviour in the past. They say that accused is respectful of their parental authority and will be amenable to their supervision while on bail.

9The mother of the accused, Marie-Anne Lundy, is prepared to post a bond of $50,000 and more if required. The stepfather of the accused, Fritzner Elie, is also prepared to post a bond. Both proposed sureties are employed; Ms. Lundy as a personal support worker with an annual income of about $70,000 and Mr. Elie as a school bus driver earning about $15,000 per year. They own their own home. They do not have criminal records. They do not consume alcohol. They attend church regularly. They have a stable home life.

10Mr. Elie said he was prepared to give up his employment if necessary to accommodate full time supervision of the accused at home.

Proposed Release Plan and GPS Monitoring

11Defence counsel proposes that the accused be released under a set of conditions that includes real time GPS monitoring. The main features of the proposed plan are as follows:

1The accused would be under house arrest in his parents’ home;

2His mother and his stepfather would act as sureties;

3The accused would not be able to leave the house except in the company of a surety;

4The accused would surrender his passport and driver’s license;

5The access of the accused to phones and the internet would be controlled;

6The location and movements of the accused would be monitored by a company that specializes in monitoring individuals who are under various types of court orders including orders for interim judicial release;

7The accused would be subject to a non-contact order;

8The accused would be prohibited from going to specific locations;

9The sureties and the accused would post surety bonds as specified by the court.

12A representative of the monitoring company gave evidence respecting how the monitoring system works and the technology that supports it. The main features of the system are contained in an information package that was filed as an exhibit. Briefly stated, the system uses GPS technology to monitor the location of the accused by means of an ankle bracelet. Both inclusion and exclusion zones can be established. This means that an alert will be generated if the accused leaves the zone where he is supposed to be or enters an exclusion zone, that is, a zone where he is not supposed to be. Alerts are verified by contacting the sureties and the verification system is supported by voice recognition technology. There are various timelines for notifications such as a zone infraction, removal of the bracelet, loss of signal, etc.

13Similar technology is widely used in the United States and it is gaining acceptance in Canada as well, particularly in Ontario. There are currently several individuals in Ontario who are being monitored while on release for pending homicide charges. While no system is foolproof, the monitoring technology appears to be quite reliable. Alerts can be set up to provide notice to particular police officers and to the communications centre of a specified police service. The reporting system can be customized to meet requirements on a case by case basis.

14In cross-examination, Crown counsel focused attention on the limitations inherent in the system. For example, GPS signals can be degraded in certain settings such as underground parking garages and subways. More extreme situations could include the removal of the bracelet and if this occurs, the location of the person subject to monitoring cannot be tracked. The bracelet can be easily removed with a pair of scissors but cutting the bracelet triggers an alert. If the bracelet is removed, the person subject to monitoring can flee with a head start of several minutes to as much as a few hours, if you allow for verification and notification protocols to be implemented and police resources to be dispatched.

15Compliance is based in large part on the fact that the person who is being monitored knows that if a breach occurs, the police will become aware of the breach quite quickly. Knowing that a non-compliance event will automatically result in police notification is a powerful disincentive to break the rules.

16Every system has its limits, however, and monitoring cannot stop someone who is prepared to risk the consequences associated with non-compliance. In short, in the words of one of the principals of the monitoring company if minutes matter, then release of an individual, even subject to monitoring, is likely not appropriate.

Primary Ground: Attendance in Court

17I will now refer in greater detail to the various grounds upon which an accused person may be detained pending trial. The first ground of detention is to ensure that he or she will attend court when required. Considerations applicable to this ground include the fact that although the accused has family connections in both Haiti and the United States, he would be required to surrender his passport. Also, he has resided in the City of Ottawa with his family since 2010, having previously lived in Miami from when he was seven until he was about 14 years old. His parents and siblings live here. He has no financial resources to facilitate an inclination to flee. Defence counsel also contends that GPS monitoring would reduce the risk of flight.

18Crown counsel points to the fact that the accused has aunts and uncles and cousins in both Haiti and the United States with whom his family has maintained close connections over the years. His uncles from Haiti have visited in Canada. The mother of the accused travelled to Haiti in July of this year. She said she wanted to see her 93 year old mother and to visit with other family members. The timing of this trip, however, could be seen as unusual, following as it does close on the heels of two significant events: the arrest of the accused a few months before near the end of April and the purchase of a new family residence at around the same time as the trip to Haiti. The prosecution invites the inference that there may have been more to this trip than just a family visit.

19Crown counsel also argues that the usual financial pressures associated with pledging a bond are not present here because the sureties are unable to honour the pledged amounts. The evidence discloses that the sureties have modest financial resources and few assets. Should the bonds be called on for payment, it is uncertain whether the sureties would be able to raise the money necessary to satisfy the obligation.

20While the parents and siblings of the accused live in Ottawa, this is not a case where an accused person has his or her own family such as a spouse, partner or children to exert pull to remain within the jurisdiction. In addition, the accused does not have employment or financial obligations that often operate to reduce the risk of flight. He has no commitments here.

21Finally, monitoring cannot prevent an accused from leaving the jurisdiction if he is determined to do so. Once the bracelet is removed, the movements of the accused cannot be tracked.

Secondary Ground: Public Safety and Administration of Justice

22The second basis for detention has several components but, in my view, the most important components on the facts of this case are the safety of witnesses and a concern for the administration of justice. This relates to the risk that the accused may try to contact or influence Crown witnesses, in particular Kevina Francis or Aaron Villa. There is evidence that the accused contacted Mr. Villa, who was a close friend, before Mr. Villa was interviewed by the police and asked him to provide an alibi. According to Mr. Villa, the accused requested that Mr. Villa tell the police that they had been together for most of the day in question. While it is true they were together after about 5 pm, they were not together at the time that Mr. Stevenson was stabbed.

23In his statement to the police, Mr. Villa initially attempted to mislead investigators in the manner requested by the accused, but when interviewed a second time he disclosed that he was at home until 4:30 p.m. when the accused called and asked Mr. Villa to meet him at the apartment building where the deceased lived on Jasmine Crescent.

24In addition, texts were deleted from the phone of the accused in an effort to mislead police.

25These actions suggest that the accused will do what he can to reduce his jeopardy if he has opportunities to do so. Past behavior is a recognized predictor of future conduct. While bail conditions are designed to reduce the risk of non-compliance, the seriousness of the accused’s predicament is a powerful incentive to do what he can to improve his situation.

26Defence counsel emphasized that the standard for detention pursuant to the secondary grounds is quite high. The court must be satisfied that there is a substantial likelihood the accused will re-offend or interfere with the administration of justice. There must be a specific reason for concern beyond the nature of the charge itself; generic concerns are insufficient to justify detention.

27Mr. Lyttle referred to the decision of Justice Durno in R. v. Lesniak [2012] O.J. No. 6687. There the accused was charged with one count of second degree murder and aggravated assault. The Crown case was relatively strong. The violence was spontaneous; there was no evidence of pre-arrangement. The bond amount was $250,000. Both parents worked. The family income was about $190,000 annually. There was substantial equity in the family home.

28Justice Durno acknowledged that due to the fact the accused had initially fled to New York, detention on the primary ground was a close call. He placed a high level of reliance on the large amount of the sureties and the availability of the equity in the house as security, together with electronic monitoring, in determining detention was not warranted.

29Justice Durno also considered the profile of the accused as was done by the Quebec Court of Appeal in R. c. Rondeau 1996 6516 (QC CA), [1996] J.Q. No. 1090 (QCA). In Rondeau, the accused was granted bail in the first instance. The Crown successfully appealed the order releasing the accused and the Quebec Court of Appeal ordered the accused into custody. In that case, the evidence disclosed that Rondeau had agreed to accompany another person on a mission to kill the victim over the issue of stolen cassettes valued at about $40. The victim was stabbed to death in his sleep. Initially, Rondeau was granted bail based on factors that included the fact he was 19 years old, had no criminal record, came from a balanced family setting and had no psychiatric history. On appeal, the court held that an assessment of the likelihood of dangerousness based solely on past behavior failed to take into account the whole of the circumstances surrounding the commission of the offence and this was especially the case when the burden of proof was on the accused.

30In Rondeau, Proulx, J.A., writing for the court, said that:

It appears to me that the more serious the crime, the more the perpetrator’s participation is characterized by planning and the commission of the most violent acts, the greater the risk for society… It is not a question of frustrating the presumption of innocence and starting the sentence by ordering his immediate detention, but rather to apply the rule of the burden of proof which requires the accused to show cause why his detention is not necessary for the protection or safety of the public.

31In the case before me, the accused is alleged to have been armed with a knife, lured his victim into stairwell to facilitate a robbery, fatally stabbed his friend and co-worker four times over a small amount of marijuana then attempted to get another friend to lie to the police to provide him with an alibi. If the Crown accusations are true, there is reason to be concerned for both the level of danger the accused poses if he is not detained and whether he will comply with court-ordered constraints on his activities.

Tertiary Ground: Confidence in the Administration of Justice

32The third basis for detention, to maintain confidence in the administration of justice, requires an analysis of all the circumstances of the case including the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and whether the accused is facing a lengthy prison sentence if convicted. I will deal with each of these elements.

Apparent Strength of the Prosecution's Case

33Apparent Strength of the Prosecution’s Case— The assessment of the strength of the case against an accused person before the investigation is complete, before a preliminary hearing has been held and before the accused has presented his defence, can be a difficult and uncertain task. The case to be presented against an accused can become much less conclusive closer to trial but the question of whether or not to grant bail requires the court to look at the apparent strength of the case at this stage of the proceeding.

34It is clear that the accused lied to police regarding when he was at 2020 Jasmine Crescent on the day in question. It appears he deleted text messages from his phone before he provided it to the police. There is evidence that he installed software on his phone to disguise the source of messages in order to facilitate a robbery. He is purported to have told Kevina Francis he intended to rob the deceased. He admitted to Aaron Villa that he had just robbed and stabbed someone. He is seen on video entering the building at the relevant time and then later running from the building holding what police say is a knife. He asked Mr. Villa to lie to the police in order to provide him with an alibi.

35In assessing the strength of the case, the court should also look at possible defences. Here the defence suggests that self-defence may be involved as an explanation for what occurred. There is evidence that when Ms. Francis asked the accused why he had stabbed the deceased, the accused intimated that he did it to protect Ms. Francis.

36There is also the defence suggestion that Ms. Francis was the perpetrator.

37At this preliminary stage, however, in my view the prosecution has a reasonably strong case to present, notwithstanding some obvious difficulties with the statement given by Kevina Francis.

Gravity of the Offence and Severity of the Penalty

38The Gravity of the Offence and the Possibility of a Lengthy Prison Sentence—I will deal with these two factors together. The loss of life due to any criminal act is extremely serious. Here the accused must answer to a charge of murder. By definition this is a grave crime. Upon a finding of guilt, this offence is punishable by life imprisonment with no chance of parole for at least ten years.

Circumstances Surrounding the Offence

39The Circumstances Surrounding the Offence— On the facts as alleged by the prosecution, there is evidence which, if accepted, points to planning and preparation for a robbery prior to the attack. The deceased was stabbed in the chest and abdomen three times and once in the back. The level of violence is high. The accused sought to draw a friend into the scheme by asking him to provide an alibi. While the accused denied that Mr. Stevenson was the person who was robbed, Mr. Villa said the accused referred to his victim as some “mucktee”, which Mr. Villa took to mean a person who is stupid or developmentally-delayed. The use of this term, if true, reveals a callous and flippant attitude towards a victim who has just been stabbed.

40In R. v. St. Cloud, 2015 SCC 27, [2015] SCJ No. 27, the Supreme Court of Canada recently provided fresh insights respecting this ground for detention, that is, detention is necessary for the maintenance of confidence in the administration of justice, and the following points are worth reiterating here. The application of this ground of detention is not limited to exceptional circumstances, to unexplainable crimes or to certain classes of crimes. There is no requirement that the provision is to be interpreted narrowly or sparingly applied. The notion of what “public” means in this context consists of someone who is thoughtful, informed of the philosophy of the legislation and Charter values and the circumstances of the case, someone who is not prone to emotional reactions. This person need not be a legal expert but should be aware of the importance of the presumption of innocence and the right to liberty unless just cause be shown for detention.

Conclusion

41Having considered these various factors, I have concluded that the accused ought to be detained on the secondary and tertiary grounds, that is, to protect the public including any witnesses, to prevent the risk of interference with the administration of justice and to maintain confidence in the administration of justice.

42In the result it is unnecessary to decide whether detention is necessary to secure the attendance of the accused at all required court appearances.

43The application to vacate the detention order is dismissed.

Mr. Justice Martin James

DATE RELEASED: September 16, 2015

OTTAWA COURT FILE NO.: 15-M7867