CITATION: R. v. Williams, 2016 ONSC 8136
COURT FILE NO.: CR-16-40000344-00BR
DATE: 20161228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL WILLIAMS
Accused
Martin Sabat, for the Crown
Cyd Israel, for the Accused
HEARD: December 23, 2016
B.A. ALLEN J.
REASONS FOR DECISION ON BAIL REVIEW
(Rendered orally December 23, 2016)
BACKGROUND
The Charges before the Court
[1] The accused, Michael Williams, was arrested on August 9, 2016.
[2] Mr. Williams was charged with nine firearm offences, including: discharging a firearm reckless to the life and safety of a 15 year old girl, Samantha Thompson; possessing a prohibited firearm without holding a licence or permit; occupying a motor vehicle knowing there was a handgun in it; using a handgun in a careless manner; storing a handgun in a careless manner; breach of a firearm prohibition; unlawful possession of a loaded or restricted firearm; possession of a firearm for a purpose dangerous to the public; and assaulting Samantha Thompson using a handgun.
Background to the Charges
[3] The allegations are as follows:
[4] On the evening of August 9, 2016, Mr. Williams was driving Ms. Thompson in his vehicle. As he was driving, he threw a handgun onto Mr. Thompson’s lap. She gave the handgun back to him. He drove into a public park and parked his vehicle. He told Ms. Thompson to get out of the car and they walked a distance. Mr. Williams pulled out the handgun and fired it into the grass four times. The accused ordered her back into the car he ran. They then both got back into the car. When Mr. Williams saw the police he reversed the car and fled on foot into the bushes.
[5] Three witnesses observed Mr. Williams in the park reversing the car, near the car, getting out of the car and retrieving something from the rear seat. The police observed Mr. Williams go into the wooded area. They approached Ms. Thompson sitting in the car and they found she was visibly upset.
[6] The police arrived in the park in answer to a call from the public about hearing gun shots. The police found two shell casings on the grass where Ms. Thompson indicated Mr. Williams had fired the shots. The police and a canine unit searched the grounds and the bushes but were unable to find the handgun.
[7] After the show cause hearing an investigation, detailed in a firearm property report, reveals that the shell casings were for blank bullets and not live ammunition. Further forensic analysis is being done to determine whether the handgun used was a prohibited weapon capable of firing live ammunition. That forensic report has not yet been produced.
[8] Mr. Williams was taken to the police station for criminal investigation. The police were planning to do gunshot residue testing on the accused. The Crown’s position, which it asserts will be argued at trial, is that Mr. Williams’ conduct at the police station shows a consciousness of guilt. That is, when the police entered the room they observed Mr. Williams had urinated on the floor. And when they advised they were going to test his hands for gunshot residue he bent down and placed his hands in the urine. According to the Crown, this showed that Mr. Williams was attempting to remove gunshot residue from his hands.
Show Cause Hearing
[9] The show cause hearing was held on August 18, 2016. This is a reverse onus case where the defence has the burden of proof. The judge refused bail on secondary and tertiary grounds.
[10] At the show cause hearing, Mr. Williams proposed one surety, his mother. The judge on bail found the mother an unsuitable surety for a number of reasons including that she was not familiar with her son’s life. She had moved from Toronto a number of years previously, only visiting her daughter in Toronto on occasion. There were extended periods where she did not see her son.
[11] The mother was familiar with her son’s criminal record. She indicated she had acted as his surety in 2008. He breached bail while under her supervision. The judge on bail found the mother downplayed the seriousness of some of his criminal conduct as simply the pranks of a young person. The plan of supervision was insufficient. The judge found there was a substantial likelihood Mr. Williams would re~~-~~offend under that plan.
[12] On the tertiary grounds, the judge found that the public’s confidence in the administration of justice would be adversely affected were the accused released while facing such serious charges.
[13] The judge also found the strength of the Crown’s case, the seriousness of Mr. Williams’previous convictions and the seriousness of his current charges to be critical factors in denying bail. The existence of a close eyewitness, Ms. Thompson, evidence at the scene corroborating the evidence of the eyewitness, Ms. Thompson’s willingness to speak to the police and her description of the handgun to the police lent strength to the Crown’s case. The judge also pointed to Mr. Williams’ conduct at the scene, going into the bushes, and at the police station, urinating on the floor, as suggesting guilt.
[14] The judge on bail emphasized the importance of the presumption of innocence. She found however that based on the nature of the allegations and the deficient plan of supervision that the public’s confidence in the criminal justice system would best be served by denying bail.
MR. WILLIAMS’ CIRCUMSTANCES
[15] Mr. Williams testified at the bail review.
[16] Mr. Williams is 29 years of age. He is the father of three young children, ages 8 years, 6 years and 3 years. He resides with his common law spouse with whom he had been in a relationship for about 14 years.
[17] Mr. Williams had been employed on and off with the company, Flexmaster, from 2010 to 2013, for six months at a time. At the time of his arrest he was staying home to care for his children. His employer at Flexmaster has written a letter for the bail review that indicates he would hire Mr. Williams back if he were released on bail.
[18] Mr. Williams has a serious youth and adult criminal record. His first youth conviction was in 2004 and his last and only conviction as an adult was in 2008. There is an eight year gap in his involvement with the criminal justice system.
[19] His prior convictions during his youth include assault police, robbery, bank robbery armed with an imitation weapon and failure to comply with recognizance. The adult charge in 2008 involved possession of a prohibited weapon for which he received the firearm prohibition. Mr. Williams asserted that his youth crimes were the result of him being a foolish youth, downplaying the seriousness of what he was involved in.
[20] In relation to a circumstance in 2015, Mr. Williams admitted he was aware that the police wished to speak to him about a criminal investigation they were conducting. Erica Molina, Mr. Williams’ common law spouse and Mr. Williams’ mother were also aware of this. Ms. Molina testified that she and the mother asked him to turn himself in and he refused. Mr. Williams admitted he did not turn himself in. The police had to come to him to arrest him.
GROUNDS FOR THE REVIEW APPLICATION
[21] The defence seeks release on the basis of substantial changes of circumstances. Defence counsel proposes a new surety, Mr. Williams’ common law spouse, Ms. Molina. The defence also submits there is a material change in the Crown’s case with the evidence that the bullets fired were blanks. In defence counsel’s view this undermines some of the offences Mr. Williams faces.
The Proposed Plan of Supervision
[22] Ms. Molina also testified at this hearing.
[23] Ms. Molina is 28 years of age and the mother of three young children. She does not have a criminal record and has not acted as a surety for Mr. Williams previously. She testified that she began a serious relationship with Mr. Williams in about 2007. Ms. Molina indicated they did not speak much about his youth criminal record. She was in a relationship with him at the time of the 2008 charges on Mr. William’s criminal record and the current charges against him. She testified she was disappointed in him for getting involved in crime.
[24] Concerning the 2015 circumstance when Mr. Williams was being sought by the police, Ms. Molina stated that she thought the police only wanted Mr. Williams for questioning. Ms. Molina indicated she did not call the police and confirmed that she and the mother told him to turn himself in but he did not. She testified however that when the police eventually came to speak to her on two occasions she told them she believed he was at his sister’s home in Toronto.
[25] She explained she was under no legal obligation to call the police in 2015 as she would be as his surety. She testified she understands her legal obligation as a surety to report him to the police if he is in non-compliance. She indicated her preparedness to ensure that he obeys court orders and any bail conditions imposed.
[26] Ms. Molina is currently unemployed outside the home looking after the household and the three children. She testified she is a stay-at-home mom who can monitor Mr. Williams throughout the day, every day and ensure he remains in compliance with his bail conditions. She supports the family on social assistance and child tax credits which amount to about $2,700 per month. Ms. Molina stated she is prepared to supervise her husband under house arrest and is willing to pledge $5,000 as security. Since the show cause hearing Ms. Molina sold all of her jewelry. She was originally going to pledge $2,000 but with the sale of her jewelry she was able to increase the amount she could pledge.
[27] The defence argues Ms. Molina will provide the necessary supervision of Mr. Williams. She appreciates the seriousness of the allegations and the need to call the police if he disobeys the rules. The defence submits a strong point in Ms. Molina’s favour to be a surety is her dedication to provide the largest surety within her limited means. The fear of losing the $5,000, derived as it was through the sale of all of her jewelry, is a motivation for her to ensure Mr. Williams does not breach the terms of his bail.
Was There a Material Change in Circumstances?
General Principle
[28] The purpose of a bail review is not to offer the applicant an opportunity, in addition to the show cause hearing, to prove their case. The applicant is required to prove that the circumstances of the case have materially changed since the show cause hearing. This basically amounts to proof that if the judge on bail heard the case today, the outcome would be different. Or the applicant must establish that the judge on bail made an error in law.
[29] If the judge on review finds there is a material change in circumstance or an error in law, the judge can reconsider the issue of bail and either confirm the show cause decision to deny bail or release the accused. The defence bases its argument on changes in circumstances.
The Defence’s Position
[30] Firstly, the defence relies on the firearm property report’s finding that the bullets fired were blanks. This, the defence posits, seriously weakens the Crown’s case, particularly if the forensic analysis discloses that the firearm would not have been capable of firing live bullets. This finding would, in the defence’s view, nullify some of the firearm charges in which possession of a prohibited weapon is an essential element.
[31] Secondly, the defence relies on the new supervision plan, involving Ms. Molina as surety, as a further change in circumstance.
[32] Unlike the plan where the mother was proposed as surety, Mr. Williams would not be required to move to another city away from his wife and children. The plan with the mother was that Mr. Williams move away from Toronto to stay with her in Harrow. The defence also pointed out the judge on bail’s finding that the mother was defensive and biased in speaking about her son is a feature which further distinguishes the mother’s evidence from Ms. Molina’s attitude about her husband.
[33] The defence asserts that the strength in the new plan lies in Ms. Molina being available. She stays home to take care of the children and the household. This makes her available to monitor her husband at home and allows her to accompany him whenever he is required to leave the home. The defence points out that Ms. Molina is especially motivated to ensure he does not commit a breach due to her investment of all of her assets. The defence also emphasizes the fact Ms. Molina assured the court in her testimony that she takes seriously her responsibilities to report her husband to the police should he commit a breach and that she distinguished this from the circumstance in 2015 where she felt she did not have a legal duty to do so.
The Crown’s Position
[34] The Crown takes the position there is not a material change in circumstance with the findings on the firearm property report. I agree with the Crown’s position. The results of the testing on the bullet casings are limited to findings about the casings and do not draw any conclusions about the nature of the firearm. The results on the nature of the firearm are yet to be reported. I accept the Crown’s view that the report’s findings about the casings do not materially change the Crown’s case or the charges against Mr. Williams. I cannot conclude that if this evidence was available to the judge on bail that her decision to deny bail would have been different.
[35] The Crown argues that the new plan of supervision does not present a material change in circumstances. I accept that view. The Crown further argued that the plan involving Ms. Molina was more deficient than that involving the mother.
[36] My feeling is that both of the plans have their own deficiencies. For instance, the mother was more familiar than Ms. Molina with her son’s criminal record and perhaps would be more in a position to know what to be aware of in his conduct and anticipate what she should do. However, Mr. Williams has lived with Ms. Molina off and on for about fourteen years; whereas there were years when the mother did not know what her son was doing with is life. Ms. Molina knew Mr. Williams as an intimate partner and father on a daily basis and the mother knew him as a son, mainly more recently at a distance.
[37] I find in the final analysis that I agree that the new plan of supervision, if available to the judge on bail, would not have resulted in a different finding.
[38] Furthermore, I find the plan as presented on review was not definitive in the sense of setting out strict terms of a house arrest. There are three small children in Ms. Molina’s care which will require a great deal of her attention. There are no plans for backup supervision if Ms. Molina cannot be available to supervise if other responsibilities arise that could require her to be absent from Mr. Williams. There is no clear undertaking by Ms. Molina to ensure that Mr. Williams not leave the house without her for any reason.
[39] There is also the prospect of Mr. Williams taking on a position with his old employer. There is no plan to account for whether it is possible for Ms. Molina to drive him to and from work. There are no details about the circumstances at the prospective workplace. There is no plan for supervision while he is at work.
[40] I do not find if the judge on bail had the new plan of supervision before her, that she would have arrived at a different determination.
Substantial Likelihood to Re-offend on the Secondary Grounds
[41] The Crown makes an additional argument on the secondary grounds that with the new plan of supervision, there would be a substantial risk that Mr. Williams would re~~-~~offend. The deficiencies I pointed out above, I find, could lend to this substantial likelihood.
[42] The Crown points out that the nature and seriousness of Mr. Williams’ past convictions and current charges put him at risk to re~~-~~offend. The context in which the current allegations arise is critical to looking at the risk.
[43] Mr. Williams was aware he was subject to a lifetime firearm prohibition from 2008 when he committed the current alleged offences. Nonetheless, while having a young girl in his charge, he is alleged to have thrown a gun on her lap and then fired it into the ground in her presence in a public park frightening her. It is alleged, and the Crown could reasonably assert at trial, that Mr. Williams conducted himself at the scene of the crime and at the police station to evade being detected in his criminal activity, displaying in the Crown’s view, a consciousness of guilt.
[44] I find, although Mr. Williams’ prior convictions are dated and mainly acquired as a youth, he seemed to adopt a rather cavalier attitude toward his serious criminal record brushing it off as simply the missteps of a misguided youth.
[45] It was clear to me that Ms. Molina loves and cares for Mr. Williams and is dedicated to trying to help him. She wants to keep her family together. She cashed in jewelry, which was valuable to her, to support him. That is admirable. However, I am concerned that Mr. Williams will disobey her as he did in 2015 when the police were looking for him. She might not call the police if he urges her not to.
[46] I understand the distinction the defence made between Ms. Molina failing to call the police when she was not legally obligated to do so and calling when she is required by law to do so. However, there is an underlying concern common to both scenarios. That is, whether legally required to call the police or not, it is expected that a responsible adult would not attempt to avoid the police involved in the investigation of a crime. I am concerned about Ms. Molina’s judgment as a surety where her husband is concerned.
The Tertiary Grounds
[47] The judge on bail also considered the tertiary grounds. I endorse her finding on the strength of the Crown’s case. As noted earlier, the strength of the Crown’s case rests in a number of areas of the evidence.
[48] The seriousness of the charges Mr. Williams faces is an important factor. Frightening a young girl in his care with a firearm and shooting it off in a public park in breach of a firearm prohibition is risky and reckless behaviour. He has prior related convictions. His record includes a breach of recognizance, breach of bail, breach of a firearm prohibition, a bank robbery with an artificial handgun and possession of a prohibited weapon. He has a history of disrespect for court orders and a history with unlawful possession of firearms.
[49] The judge on bail pointed to the Crown’s evidence obtained from a close eyewitness, Ms. Thompson. Her evidence is supported by other evidence such as the report of gunshots by a member of the public and the discovery of the two shell casings in the grass where Ms. Thompson indicated the gun was discharged. Not available before the court at the show cause hearing, but disclosed by the Crown subsequently are three eyewitnesses who allege they observed Mr. Williams in the park in his car reversing it into the bushes and retrieving something from the back seat.
[50] Also, the police found Ms. Thompson in the car in a disturbed state which supports her evidence about what she experienced. The judge on bail also acknowledged the fact that Ms. Thompson willingly gave a statement to the police during which she provided a description of the handgun.
[51] In view of the seriousness of the charges before the court and the strength of the Crown’s case, I do not believe the confidence of the public in the administration of justice will be diminished by denying Mr. Williams bail.
CONCLUSION
[52] I am cognizant of the presumption of innocence in deciding this case. However, I find in the circumstances that denying bail is warranted. The defence did not satisfy its burden to show cause why he should not be detained.
[53] For all the foregoing reasons, I find the defence has not succeeded in showing why he should not be detained.
DISPOSITION
[54] I dismiss the application.
B.A. ALLEN J.
Released: December 28, 2016
CITATION: R. v. Williams, 2016 ONSC 8136
COURT FILE NO.: CR-16-40000344-00BR
DATE: 20161228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL WILLIAMS
Accused
REASONS FOR DECISION ON BAIL REVIEW
B.A. ALLEN J.
Released: December 28, 2016