Court File and Parties
COURT FILE NO.: CRIMJ(P) 852/15 DATE: 2016 05 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Eric Taylor for the Crown
- and -
AARON KENNEDY Leora Shemesh for the Applicant
HEARD: May 11, 2016
RULING on BAIL REVIEW
Baltman J
Introduction
[1] This is Mr. Kennedy’s seventh bail application. He is facing multiple charges related to an alleged kidnapping and beating that occurred in April 2014. Along with failure to comply with an existing probation order, the charges include assault causing bodily harm, kidnapping, unlawful confinement, extortion, and uttering death threats.
[2] Mr. Kennedy is seeking release to the supervision of his proposed surety, Kenneth Hughes, who resides on a Sixth Nation Reservation. Mr. Hughes, who has no criminal record, is willing to post $50,000 as security and to monitor Mr. Kennedy 24/7. Mr. Kennedy is also prepared to wear an ankle bracelet for monitoring purposes, and report regularly to Peel Police.
[3] Mr. Kennedy was arrested on these charges in August 2014 (while in custody on other charges) and initially consented to his detention. Following his preliminary hearing in February 2015 he was committed to stand trial. On September 4, 2015, J.P. Chang-Alloy released Mr. Kennedy to his surety under a plan of release. Following a bail review requested by the Crown, on September 25, 2015, Justice Ricchetti ordered that Mr. Kennedy be detained on the secondary and tertiary grounds.
[4] On October 26, 2015, counsel for Mr. Kennedy applied again for a bail review, based on alleged errors by Justice Ricchetti. By written reasons dated October 28, 2015, Trimble J. dismissed that application. At that point it was anticipated that Mr. Kennedy’s trial would begin in January 2016. However, as a result of additional disclosure, the trial was adjourned to August 2016.
[5] Mr. Kennedy then brought a further bail review application before Sproat J. on February 3, 2016. Justice Sproat determined that Mr. Kennedy should continue to be detained on both the secondary and tertiary grounds.
[6] Mr. Kennedy then attempted to obtain a bail review from the Court of Appeal, arguing that the judges of the Brampton Superior Court had demonstrated an unwillingness or reluctance to come to a different conclusion from their judicial colleagues. On March 29, 2016, Roberts J.A. rejected his application and recommended he return to Ricchetti J. for a further bail review, which proceeded in April 2016. On May 3, 2016, following a clarification of counsel’s position regarding the onus of proof, Justice Ricchetti recused himself from the bail review, and the matter was adjourned to be heard before me.
[7] Before me the parties agree the hearing proceeds on the following four assumptions:
a. There has been a material change in circumstances;
b. I am to consider the bail application anew;
c. The onus is on the Crown;
d. The sole ground being relied upon by the Crown is the secondary ground, namely whether detention is necessary for public safety, having regard to all the circumstances including the likelihood of the accused committing a criminal offence if released from custody.
Submissions and Analysis
[8] On the facts of this case, the analysis is not complicated. I say that primarily for two reasons: a) Mr. Kennedy’s criminal past makes him a significant risk upon release; and b) the alleged offences are violent in nature.
[9] Dealing first with Mr. Kennedy’s history, he has a lengthy and violent record. As there is no dispute as to its accuracy, I repeat here the helpful summary prepared by Ricchetti J. at para. 23 of his ruling of September 25, 2015:
- 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
[10] Significantly, the assault conviction of July 2, 2015 occurred while Mr. Kennedy was in detention on the current charges. It resulted in very serious injuries to another prisoner. Mr. Kennedy pleaded guilty to assault causing bodily harm. However provoked Mr. Kennedy might have been by the fact that the victim had allegedly on a previous occasion tried to shoot him, the incident displays Mr. Kennedy’s inability to control his anger and his capacity to badly injure those who oppose him.
[11] All in all, his record is not only lengthy and violent but also displays his willingness to escape custody and breach promises made to the court, making him a very undesirable candidate for release on any terms.
[12] As for the current outstanding offences, the allegations are very serious. They arise out of business dealings between Mr. Kennedy and the complainant, Valid Aradizadeh. Mr. Kennedy believed that Mr. Aradizadeh owed him money. When payment was not forthcoming, he allegedly went to Aradizadeh’s home along with an accomplice and kidnapped him. They drove Aradizadeh away and installed him in a shed, where he was beaten and his family was threatened. Aradizadeh managed to negotiate his way out of the shed. Kennedy was then incarcerated on other charges but allegedly continued to extort Aradizadeh, leading Aradizadeh to report the matter to police on July 12, 2014.
[13] The Crown has in fairness acknowledged there are some weaknesses in its case, including legitimate questions regarding Aradizadeh’s credibility. However, the case does not rest solely on Aradizadeh’s evidence. His mother witnessed the kidnapping and there are text messages and phone conversations between him and the accused that demonstrate strong animus and motive on Kennedy’s part.
[14] As I noted above, this is the seventh bail application by Mr. Kennedy. The trial, scheduled for early August 2016, is just around the corner. Ms. Shemesh submits that Mr. Kennedy has already served the equivalent of any sentence he might receive if convicted of these offences. That ignores the fact that at least some of his incarceration is attributable to his assault of another prisoner while in custody. It also presumes that Mr. Kennedy would not receive a sentence of more than 3 years for this offence, which may be questionable given his lengthy record and the very serious facts alleged.
[15] When I consider the number and nature of offences for which Mr. Kennedy has already been convicted, his proven inability to control himself whether in detention or at liberty, and the very serious nature of the pending charges, I can only conclude there is a substantial likelihood of him committing another offence if released, no matter what plan he is released under.
[16] The application is dismissed.
Baltman J