ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-1151/15

DATE: 20150925

BETWEEN:

HER MAJESTY THE QUEEN

Moving Party

– and –

AARON KENNEDY

Defendant/ Respondent

G. Hendry for the Crown

L. Shemesh for the Defendant

HEARD: September 18, 2015

RULING ON CROWN’S BAIL REVIEW APPLICATION

Ricchetti J.:

OVERVIEW

[1] The Crown seeks a bail review of Justice of the Peace Chang-Alloy’s bail hearing wherein he released the Defendant pending trial on certain conditions.

[2] During the bail hearing on August 25, 2015, the presiding justice of the peace ruled that this was a reverse onus situation. However, after discussion with other judges, the presiding justice of the peace decided that this was a Crown onus situation.

[3] On September 4, 2015 Justice of the Peace Chang-Alloy gave reasons and released the Defendant on strict terms of release.

[4] The Crown seeks a bail review of Mr. Kennedy’s release pending trial.

[5] Before this court, both parties agree that this was and is a Crown onus situation.

[6] For the reasons that follow, Justice of the Peace Chang-Alloy’s bail decision is set aside and Mr. Kennedy is remanded into custody pending trial in January, 2016.

THE POSITION OF THE PARTIES

[7] The Crown submits that the presiding justice of the peace erred in that he:

a) failed to consider the preliminary inquiry evidence;

b) granted release when it was clearly inappropriate because:

i. The presiding justice of the peace failed to give insufficient weight to the accused’s criminal record; and

ii. The presiding justice gave excessive weight to the quality of the surety; and

c) failed to give proper reasons.

[8] The Defence submits that the presiding justice of the peace considered all the applicable and appropriate considerations and made a decision, which the Crown has not established is clearly inappropriate.

THE OUTSTANDING CHARGES

[9] Mr. Kennedy is charged with the following offences:

a) on April 22, 2014 he assaulted Valid Aradizadeh, causing bodily harm;

b) on April 22, 2014 he induced Valid Aradizadeh by violence and threats to kill him, to pay monies to or on behalf of Mr. Kennedy;

c) between June 1, 2012 and July 31, 2012 he assaulted Valid Aradizadeh;

d) between September 1, 2012 and October 31, 2012 he assaulted Valid Aradizadeh;

e) on April 22, 2014 he kidnapped Valid Aradizadeh with intent to confine him against his will;

f) on April 22, 2014 he unlawfully confined Valid Aradizadeh;

g) on April 22, 2014 he uttered a threat to kill Valid Aradizadeh and his family;

h) on April 22, 2014, he, while bound by a probation order dated March 25, 2014, failed to comply with such probation order; and

i) between June 14, 2014 and July 16, 2014 he induced Valid Aradizadeh to pay money to and on behalf of Mr. Kennedy.

THE EVIDENCE AT THE BAIL HEARING

[10] Mr. Kennedy was arrested in July or August 2014. When the matter came before the court on August 12, 2014, Mr. Kennedy consented to his detention.

[11] The preliminary hearing was held. Mr. Kennedy was committed to stand trial on the above charges.

[12] Mr. Kennedy brought a bail application which was heard on August 25, 2015 before Justice of the Peace Chang-Alloy.

[13] The following evidence was placed before the presiding justice of the peace:

a) the preliminary inquiry transcripts;

b) the Crown synopsis, including synopsis of the evidence of the complainant and his wife, a taped conversation between the complainant and Mr. Kennedy, and SMS messages between the complainant and Mr. Kennedy.

c) Mr. Kennedy’s criminal record;

d) photographs of Mr. Aradizadeh showing bruising allegedly caused during the unlawful confinement;

e) additional convictions of Mr. Kennedy on July 31, 2015 (utter threats); January 6, 2015 (failing to comply with recognizance); and October 1, 2014 (intimidation, obstructing justice and utter threats).

f) synopsis of Mr. Kennedy’s charges at the Maplehurst Correctional facility which occurred on August 8, 2014 while Mr. Kennedy was on detention on these charges and the disposition of those charges on July 2, 2015;

g) the affidavits of Mr. Kennedy and Mr. Kenneth Hughes Senior.

[14] Essentially, the current charges alleged that Mr. Kennedy and others extorted, kidnapped, forcibly confined, assaulted and threatened Mr. Aradizadeh:

[15] Mr. Kennedy and Mr. Aradizadeh had carried on some business together. Mr. Kennedy alleged that Mr. Aradizadeh owed him money. Mr. Aradizadeh owned a luxury car rental business. Mr. Kennedy sought to take advantage of this for repayment of his loan in money and free use of vehicles.

[16] Over time, Mr. Kennedy allegedly extorted money from Mr. Aradizadeh and had Mr. Aradizadeh provide vehicles to Mr. Kennedy at Mr. Aradizadeh’s expense. The issues between Mr. Kennedy and Mr. Aradizadeh came to a head, when Mr. Aradizadeh couldn’t make payments on a vehicle.

[17] On April 22, 2014, Mr. Kennedy and an accomplice, attended at Mr. Aradizadeh’s mother’s home. Mr. Aradizadeh was ordered into a vehicle with Mr. Kennedy and was driven to a lot in Mississauga.

[18] Mr. Aradizadeh was taken into a shed and beaten for several hours. A third accomplice was later called to help in the beating. During the beating, Mr. Kennedy and an accomplice threatened to rape Mr. Aradizadeh’s wife, harm his family and threatened to kill Mr. Aradizadeh. The photographs show the facial injuries to Mr. Aradizadeh that occurred while confined.

[19] Mr. Aradizadeh was able to negotiate his way out of the confinement.

[20] While Mr. Kennedy was detained in jail, he arranged for a three way call while in jail. He called Mr. Aradizadeh and told him if he did not pay up money Mr. Kennedy alleged was owing to him, it would be Mr. Aradizadeh’s last summer. This conversation was recorded. There are references by Mr. Kennedy to Mr. Aradizadeh not making this a "project" meaning to take care of or deal with someone. The statements made by Kennedy include:

• You Val you Val you think your fucking walking away from this bro cause I’m in jail well go run to the cops or whoever you want there ain’t nobody helping you bro

[21] Mr. Kennedy’s cell phone records put him in the area of the lot at the time of the beating.

[22] There were also text messages from Mr. Kennedy demanding monies owing by Mr. Aradizadeh to Mr. Kennedy and demands that Mr. Aradizdeh provide vehicles for Mr. Kennedy.

[23] Mr. Kennedy’s criminal record is too extensive to repeat here. However, the relevant portions of his criminal record from 1995 to 2015 can be summarized as follows:

• Escape from lawful custody – March 1995; October 2001

• Breach of Recognizance/undertaking/probation – March 1999 (two charges); April 1999; October 2001, September 2004, September 2005, April 2005, September 2014

• Assault/Assaults CBH – March 1995 (two convictions one with a weapon); February 2001 (2 charges); October 2001 (assaulting a peace officer), September 2002 (aggravated assault), September 2005 (two charges one assaulting a peace officer), August 2007, another 2007 assault in a separate incident, June 2008, June 2012, March 2014; September 2014 and July 2015

• Uttering threats – July 1999 (two charges); February 2001 (two charges), September 2005, April 2008; December 2008; March 2010 (two charges)

• Weapon offences - July 1999

[24] The assault conviction on July 2, 2015 (offence date of August 8, 2015) requires some further explanation. Mr. Kennedy was detained at the Maplehurst Correctional Facility on August 8, 2015 on the current charges. During a transport to court, Mr. Kennedy was placed in an area with Mr. Jarrar, someone allegedly involved in a previous shooting of Mr. Kennedy. When Mr. Kennedy saw Mr. Jarrar, Mr. Kennedy immediately attacked Mr. Jarrar, punched him in the face and continued to punch him when Mr. Jarrar was on the ground. Mr. Jarrar suffered a broken nose and three fractures to the skull around his eye. While I agree with Defence counsel that the situation is somewhat mitigated by the fact these two persons should not have been put in the same “bull pen”, the fact remains that it was Mr. Kennedy who was the aggressor and the injuries he caused to Mr. Jarrar were significant. Mr. Kennedy pleaded guilty to assault causing bodily harm.

THE REASONS FOR THE DISCHARGE

[25] The reasons giving by the presiding justice of the peace are not fulsome.

[26] The presiding justice of the peace started by describing the plan of release (pages 3-4): living with a surety on a Native Reserve far from the city, working for the surety and participating in anger management counselling programs recommended by his doctors or surety. There would be “no-contact” conditions and Mr. Kennedy would be under house arrest except for work, medical, counselling, lawyer meetings or court appearances.

[27] The presiding justice of the peace went on to describe the proposed surety, Mr. Kenneth Hughes Sr. Mr. Hughes was willing to pledge $50,000, have Mr. Kennedy live with him and his wife, and employ Mr. Kennedy. Mr. Hughes has known Mr. Kennedy for ten years but did not typically socialize with Mr. Kennedy (pages 4-6).

[28] The presiding justice of the peace turned to the primary, secondary and tertiary grounds. The presiding justice of the peace dealt quickly with the first ground by concluding that the “primary ground is ensured by the $50,000 to be pledged by Mr. Hughes” (page 6).

[29] The presiding justice of the peace turned to the secondary ground. He described Mr. Kennedy’s “extensive horrific violent criminal record”. The presiding justice of the peace dealt with this ground in one paragraph as follows (page 6):

Ms. Shemesh, counsel for the accused, countered by referring specifically to that part of the hearing where she rhetorically asked the question, “Is there a substantial likelihood that Mr. Kennedy will commit further offences?” According to the track record, one may think so. But in this circumstance, with the surety that is being proffered, certainly I think the court has some comfort in know that this is not a possibility with Mr. Hughes on the watch.

[30] The presiding justice of the peace then turned to the tertiary ground. After refusing to permit the preliminary inquiry transcripts to be included as evidence in the bail hearing, the presiding justice of the peace turned to consider Mr. Kennedy’s criminal record. He dealt with this ground as follows:

In Ms. Shemesh’s reply to the tertiary ground as put forward by Mr. Hendry, she points out that even someone with a lengthy, horrible criminal record has the opportunity to get bail, and she reiterated she is putting her confidence in Mr. Hughes, the surety, here again.

Notwithstanding Mr. Hendry’s intelligent and thoughtful analysis of R. v. St. Cloud as it pertains to the tertiary ground in this bail, pursuant to the most recent of examination of judicial interim release by the Supreme Court of Canada, the primacy of release remains. If this cannot happen then the judicial officer must detain.

But I find in this situation, with what I have, that Mr. Aaron Kennedy will be released on conditions. That, of course, is based for the most part on the strength of the surety proffered.

LAW

[31] Section 11(e) of the Charter of Rights and Freedoms provides that every person is entitled to reasonable bail unless there is just cause to order detention.

[32] S. 515(10) of the Criminal Code provides as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[33] The evidence to be considered by the presiding judge at a bail hearing is governed by s. 518 of the Criminal Code which provides:

518. (1) In any proceedings under section 515,

(a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable;

(b) the accused shall not be examined by the justice or any other person except counsel for the accused respecting the offence with which the accused is charged, and no inquiry shall be made of the accused respecting that offence by way of cross-examination unless the accused has testified respecting the offence;

(c) the prosecutor may, in addition to any other relevant evidence, lead evidence

(i) to prove that the accused has previously been convicted of a criminal offence,

(ii) to prove that the accused has been charged with and is awaiting trial for another criminal offence,

(iii) to prove that the accused has previously committed an offence under section 145, or

(iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused;

(d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel;

(d.1) the justice may receive evidence obtained as a result of an interception of a private communication under and within the meaning of Part VI, in writing, orally or in the form of a recording and, for the purposes of this section, subsection 189(5) does not apply to that evidence;

(d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence; and

(e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.

[34] As a result, the evidence on a bail hearing may be on oath or otherwise and be based on evidence considered credible or trustworthy.

[35] The law on judicial interim release, and in particular S. 515(10)(c) of the Criminal Code, was recently canvassed by the Supreme Court in R. v. St. Cloud 2015 SCC 27.

Superior Court Judge’s review of a Justice of the Peace’s interim detention Order under s. 520 or 521

[36] A Superior Court Justice can exercise its detention review jurisdiction in only three situations:

a) where there is admissible new evidence;

b) where the impugned decision contains an error of law; or

c) where the decision is clearly inappropriate. In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene.

See St. Cloud para 6

[37] A detention review is not a hearing de novo. See. St. Cloud para 118.

[38] The Supreme Court in St. Cloud summarized a reviewing judge’s role in a detention review:

[120] On the basis of the wording of ss. 520 and 521 Cr.C., a comparison with other review provisions and with sentence appeals, and the nature of the decision being reviewed, I conclude that these sections do not confer on the reviewing judge an open‑ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must therefore determine whether it is appropriate to exercise this power of review.

[121] It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.

Secondary Ground

[39] The secondary ground requires detention where it is necessary to do so where there is a substantial likelihood the accused will commit a criminal offence.

[40] As set out in R. v. Morales, 1992 53 (SCC):

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

Tertiary Ground

[41] The Supreme Court in St. Cloud set out the proper approach for consideration whether detention is required under the tertiary ground:

[55] Section 515(10)(c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decide whether detention is justified.

[56] It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case or the possibility of a lengthy term of imprisonment.

[71] Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c) Cr.C., I think it will be helpful to give a few examples. Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.

[42] The Supreme Court in St. Cloud summarized the essential principles applicable to s. 515(10)(c) as follows:

[87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

• Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.

• 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.

• A court must not order detention automatically even where the four listed circumstances support such a result.

• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

• The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.

• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

• To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

• This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[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.

ANALYSIS

The failure to consider the Preliminary Inquiry Transcripts

[43] I agree with the Crown that this evidence was admissible evidence at Mr. Kennedy’s bail hearing. The presiding justice of the peace erred in excluding this evidence.

[44] However, during submissions on this detention review, the Crown was asked to specify what was contained in the preliminary inquiry transcripts that would have assisted the presiding justice of the peace to decide what a proper bail decision was in the circumstances of this case.

[45] The Crown responded that the transcripts would have shown that the Crown has a cooperative complainant in this case. In my view, this does not add much, if anything, to the Crown’s case or assist the presiding justice of the peace to determine whether Mr. Kennedy should be detained or released pending trial.

[46] The rest of the evidence relied on by the Crown, including evidence seeking to demonstrate that the Crown has a strong or compelling case is set out in the balance of the Crown’s record at the bail hearing. Most of these documents are credible, objective documents which establish the essence and strength of the Crown’s case against Mr. Kennedy.

[47] In my view, I am not persuaded that the presiding justice of the peace’s decision to exclude the preliminary inquiry transcripts, while an error, caused any prejudice to the Crown or altered the basis of the presiding justice of the peace’s reasons for releasing Mr. Kennedy on bail.

[48] I would not accede to this ground to overturn the bail decision.

The Secondary Ground

[49] In my view, the presiding justice of the peace failed to give appropriate weight to Mr. Kennedy’s criminal record and gave excessive weight to the surety’s ability to ensure compliance with the conditions of release.

The Criminal Record

[50] It is clear that Mr. Kennedy has little or no regard for the criminal justice system and, in particular, court imposed conditions of release, whether conditions contained in a recognizance, an undertaking or a probation order. He has eight convictions for thi