COURT FILE NO.: CR-1151/15 DATE: 20160422 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – AARON KENNEDY Moving Party
Counsel: E. Taylor for the Crown L. Shemesh for the Defendant
HEARD: April 6 and 13, 2016
RULING ON DEFENCE BAIL REVIEW APPLICATION
BACKGROUND
1On September 18, 2015, this court heard a Crown bail review application. By reasons dated September 25, 2015 ("Reasons"), this court ordered that Mr. Kennedy be detained in custody pending trial. The Reasons set out the basis for this court's determination that detention was necessary on the secondary and tertiary grounds at that time.
2On October 26, 2015, the Defence brought a detention review which was heard by Justice Trimble. The Defence alleged that this court had made various errors in law at arriving at its order of September 25, 2015. By written reasons, dated October 18, 2015, Justice Trimble dismissed the Defence application and ordered that Mr. Kennedy remain in custody until trial.
3Mr. Kennedy's trial was scheduled to commence January 11, 2016 before Justice Herold. Before the trial commenced, it appeared that the Crown had not disclosed certain telephone records to the Defence. The Defence needed time to review the late disclosure. Justice Herold ordered that the trial be adjourned until August 2016.
[4] The Defence sought a further bail review on the grounds that: a) the trial had been delayed; and b) allegations that the complainant had contacted the accused's girlfriend offering to withdraw the charges against Mr. Kennedy in return for money. The police had investigated this allegation but had not yet disclosed the results of this investigation to the Defence.
5The Defence alleged these circumstances constituted a material change. However, without the results of the police investigation available to the Defence and a review of the recent disclosure, the Defence's application for a bail review had to be adjourned.
6The Defence's application for a bail review was heard on January 29, 2016 before Justice Sproat. At this bail review application, the Defence called Ms. Boychuk, Mr. Kennedy's girlfriend. The Crown called Officer Shirley.
[7] Essentially, the Defence submitted that the strength of the Crown's case had weakened given: a) the evidence of Ms. Boychuk that the complainant had attempted to extort money from Mr. Kennedy in return for withdrawing the charges; b) the additional phone disclosure appeared to be consistent with the complainant using his cell phone during the time he was allegedly kidnapped and beaten; and c) there also appeared to be some contact by the complainant with Mr. Kennedy after the alleged kidnapping and beating which the Defence submitted demonstrated the complainant was not fearful of reprisals from Mr. Kennedy.
8The Defence presented essentially the same plan of release as had been presented to this court on September 18, 2015.
9At this bail hearing Justice Sproat (at page 3 of the transcript) did not have the results of the police investigation regarding the complainant and Mr. Kennedy's girlfriend's phone records to ascertain whether phone calls were recorded consistent with Mr. Kennedy's girlfriend's allegations. This information could add to or reduce the credibility of Mr. Kennedy's girlfriend's allegations regarding the complainant's attempts to extort money from Mr. Kennedy.
10Justice Sproat dismissed the Defence bail application for oral reasons given on February 3, 2016. Justice Sproat determined that detention continued to be necessary on the secondary and tertiary grounds.
11From Justice Sproat's reasons, it is not entirely clear if he dealt with the bail review on the basis there was a material change in circumstances or whether he dismissed the bail review because there was no material change in circumstances.
12On March 16, 2016, the Defence sought a further bail review before the Court of Appeal. On March 29, 2016, the Court of Appeal declined to exercise its concurrent jurisdiction on bail review and referred the matter back to this court.
13The Defence renewed its application for bail review back before this court. The Defence bail review application was heard on April 6, 2016.
[14] The Defence alleged that: a) Justice Sproat had erred in failing to conduct a proper detention review given the material change in circumstances; and b) there was a material change in circumstance given the new evidence and the new proposed plan of release.
[15] The Defence alleged the following material change in circumstances existed (some of which had been before Justice Sproat) warranted a variation of bail: a) the delay in the trial date; b) the complainant's phone records appeared to show some telephone calls during and after the alleged kidnapping and beating; c) the complainant's phone records appeared to also show that certain phone calls were made to Mr. Kennedy's girlfriend, consistent with her evidence of the attempted extortion by the complainant; d) the Crown agreed that the complainant will be a "Vetrovec" witness at trial; e) photos of the complainant did not appear to show serious or significant injuries given the allegation of a beating over several hours; f) the Defence was proposing regular reporting by Mr. Kennedy to the Peel Police; and g) the Defence was now proposing ankle monitoring technology for Mr. Kennedy.
16Submissions were heard on the issue of whether there was a material change in circumstance.
17This court is not persuaded that Justice Sproat made any error of law or that his detention decision was clearly inappropriate. However, it was clear that Justice Sproat did not have before him neither the results of the police investigation into complainant's telephone records for calls to Mr. Kennedy's girlfriend nor the new detailed plan of release. Further, Justice Sproat did not expressly state whether he determined there had been a material change in circumstance. As a result, this court determined there was a material change in circumstance.
18Ms. Shemesh submitted that subsequent judges hearing Mr. Kennedy's bail review applications in Brampton are reluctant to take different views from the prior judge's determination on the bail review. There is simply no evidence of this before this court. Justice Sproat considered the available evidence before him and determined that detention continued to be required.
19This bail review application was adjourned to April 13, 2016 to permit the Defence to provide evidence relating to the ankle monitoring proposed as part of the new plan of release and submissions.
THE POSITION OF THE PARTIES
20Both parties agreed this is a reverse onus situation requiring the Defence to establish that detention is not required under the enumerated grounds in s. 515(10) of the Criminal Code.
21The Crown conceded that, in light of this court's determination that there was material change in circumstance, the Crown was no seeking detention under the tertiary ground. However, the Crown submitted that detention remained necessary and was justified under the secondary ground.
22The Defence submits that the proposed plan is sufficient to satisfy its onus that detention is no longer required under the secondary ground, that is - there is no substantial likelihood that Mr. Kennedy would commit a further offence if released under the new proposed plan of release.
THE LAW
[23] The law on judicial interim release was recently canvassed by the Supreme Court in R. v. St. Cloud 2015 SCC 27. 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. 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.
24A detention review is not a hearing de novo. See. St. Cloud para 118.
25The Supreme Court in St. Cloud summarized a reviewing judge’s role in a detention review where new evidence is submitted:
121........ 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.
ANALYSIS
THE OUTSTANDING CHARGES
26Let me repeat the background to the charges and Mr. Kennedy's criminal record from this court's September 25, 2015 reasons:
[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.
14Essentially, the current charges allege that Mr. Kennedy and others extorted, kidnapped, forcibly confined, assaulted and threatened Mr. Aradizadeh:
15Mr. 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.
16Over 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.
17On 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.
18Mr. 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.
19Mr. 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
21Mr. Kennedy’s cell phone records put him in the area of the lot at the time of the beating.
22There 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
24The 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 NEW EVIDENCE/PROPOSED PLAN OF RELEASE
[27] The proffered new evidence and circumstances consist of: a) the alleged conduct by the complainant of attempting to extort money from Mr. Kennedy's girlfriend that, if true, seriously undermines his credibility and the reliability of his evidence - the key evidence against Mr. Kennedy. This allegation is consistent with the complainant's phone records and what appeared to be the complainant's voice in a partial phone recording. In a similar manner, the complainant's updated criminal record showing serious crimes, including obstructing justice by threatening a prospective witness in court, will also affect his credibility and reliability of his evidence; b) the timing of phone calls from the complainant's phone during the period of time of the kidnapping/beating and shortly thereafter, raising questions regarding the reliability of the complainant's version of the events. It is clear that the complainant's criminal record is also not an enviable one; and c) the trial was delayed through no fault of Mr. Kennedy and is now scheduled for August 2016.
[28] The proposed plan remains the same as before this court and Justice Trimble (Mr. Hughes as a surety, house arrest up with Mr. Hughes and with Mr. Hughes at all times, except for work/medical etc.) with the following additions: a) Mr. Kennedy will be subject to regular reporting to the Peel Police; and b) Mr. Kennedy will be equipped with an ankle monitoring device. Evidence was filed by Mr. Nguyen, a representative of the ankle monitoring supplier.
THE SECONDARY GROUND
29The secondary ground requires detention where it is necessary to do so for the safety of the public where there is a substantial likelihood the accused will commit another criminal offence if released pending trial.
30Given Mr. Kennedy's criminal record and history, Ms. Shemesh agreed that, without an appropriate plan of release, the Defence would not have satisfied its onus that detention was not justified on the secondary ground - that there was not a substantial likelihood Mr. Kennedy would commit another offence if released. This was fairly conceded by Ms. Shemesh as nothing has changed from September 25, 2015 regarding Mr. Kennedy's criminal record and history.
31The Defence submits this new plan of release satisfies the Defence onus. The thrust of the Defence position is that this is the best plan of release that can possibly be put forward by Mr. Kennedy and there is no accused that is "not releasable".
32This court does not have to decide whether or not there is an accused, whose criminal record or alleged crime(s), is not releasable on bail pending trial. All this court is required to decide is whether, in the circumstances of this accused and this case, the new proposed plan of release is sufficient to satisfy this court that the detention of Mr. Kennedy is no longer justified on the secondary ground. In other words, detention of Mr. Kennedy is no longer necessary for the protection or safety of the public because there is no longer a substantial likelihood Mr. Kennedy would commit another offence if released on this plan of release.
33This court agrees that the strength of the Crown's case is a factor on the tertiary ground, as it forms part of the circumstances to be considered in determining whether the Defence has met its onus. In this case, the Crown's case appears to have significantly weakened since the first bail review by this court. However, the secondary ground deals with the protection and safety of the public by considering whether there is a substantial likelihood of the accused committing another offence if released. In this case, given Mr. Kennedy's history, type of prior convictions and the fact he committed an offence while in custody after detained on these charges, are the most significant factors in this bail review, particularly since only the secondary ground is in issue.
34In my view, the central issue is whether the Defence has shown that the new proposed plan of release is sufficient to establish that the detention of Mr. Kennedy is no longer justified because the new proposed plan of release overcomes this court's concerns of the substantial likelihood Mr. Kennedy would commit another offence if released pending trial.
[35] The following exchange took place with counsel:
The Court: Would you agree given Mr. Kennedy’s record and past, if you looked at that alone, there is a substantial likelihood that he might commit another offence? Ms. Shemesh: mm – mm (affirmative) The Court: the question really is, can I overcome that by looking at your plan – that really is it in a nutshell? Ms. Shemesh: That’s it – That’s it.
36Given the evidence that is now disclosed regarding the complainant, the concerns for the complainant's safety has lessened considerably, since he too appears to be involved in a criminal lifestyle. If Mr. Kennedy is released is there a concern that violence will erupt between Mr. Kennedy and the complainant. There is no way to assess this factor and it is not a factor in this court's decision at this time.
37From Mr. Kennedy's criminal record it is clear that he has little regard for court orders, police authorities or prison authorities. Mr. Kennedy has escaped twice from lawful custody. He has breached numerous court mandated orders and terms. Even while in prison on these charges, where the circumstances should prevent an inmate from committing another offence, Mr. Kennedy committed an assault on another prisoner resulting in serious harm to that prisoner.
38How can Mr. Hughes as a surety lessen the likelihood Mr. Kennedy will commit another offence if released? The Defence have not persuaded this court that Mr. Hughes can control Mr. Kennedy or, more importantly, Mr. Kennedy will abide by any attempted supervision by Mr. Hughes to prevent Mr. Kennedy from committing another offence. Mr. Kennedy appears to do what he wants regardless of what the courts, the police or prison official tell him to do. There is no evidence he will be supervised by Mr. Hughes.
39Will the regular reporting to Peel Police make a difference? Again, I am not persuaded it will given Mr. Kennedy's past criminal record and history. The reporting will not do much more than provide a specific location for Mr. Kennedy at a point of time. The rest of the time, Mr. Kennedy's whereabouts would not be known to the police.
40Will the ankle monitoring lessen the likelihood Mr. Kennedy will commit another offence if released? The ankle monitoring is a deterrent because an accused's location is known almost instantaneously. See para 8 of Mr. Nguyen's affidavit. However, given that Mr. Kennedy away from Mr. Hughes' home for work and other reasons, I fail to see this is an effective part of a plan of release that lessens the likelihood Mr. Kennedy will commit another offence if released. Besides, if the best deterrent - being in lawful custody in prison with prison guards - didn't prevent Mr. Kennedy from committing another offence, how can ankle monitoring in these circumstances provide any better evidence that Mr. Kennedy will not commit another offence if released.
41The onus is on the Defence to show cause why Mr. Kennedy's detention in custody is not justified on the secondary ground.
42I am not satisfied that the Defence has met its onus.
43Detention of Mr. Kennedy until trial continues to be necessary for the safety of the public on the secondary ground.
44The Defence application for detention review is dismissed.
Ricchetti, J
Released: April 22, 2016