COURT FILE NO.: 16-M788 DATE: 2017/02/15
BY ORDER OF THIS COURT MADE UNDER S. 517 OF THE CRIMINAL CODE THIS DECISION SHALL NOT BE PUBLISHED, BROADCAST OR TRANSMITTED IN ANY WAY BEFORE THE TRIAL OF THIS MATTER IS CONCLUDED
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen AND Jorden Larocque-Laplante
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: M. Moors and J. Melo for the Crown Cedric Y.L. Nahum for the Accused
BAIL HEARING – REASONS FOR DECISION
ROGER, P.E., J
Overview
[1] The accused, Mr. Jorden Larocque-Laplante, is charged with second degree murder of Mr. Abdullah AL-TUTUNJI, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The accused brings this Application, seeking release from custody pending trial pursuant to section 522(2) of the Criminal Code. Under that section, an accused charged with murder is detained in custody pending trial unless the accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10) of the Criminal Code.
The Allegations
[3] The charge of second degree murder relates to events that occurred on December 11, 2016 at a McDonald located in the west end of Ottawa.
[4] The Crown’s evidence was presented by Sgt. O’Brien who, as well, introduced a video showing parts of the altercation.
[5] The video shows the accused entering the McDonald at about 2:42 in the morning, to meet with his sister - whom he had called moments before - and her friend. The accused mother had also called to indicate that the accused was hungry and would be coming over to meet with them.
[6] Sgt. O’Brien testified that independent witnesses, present at the McDonald, indicated that the accused mumbled Arabic sounding words at them or in their direction, as he proceeded to the washroom. The accused is next seen walking towards his sister, Roxanne Larocque-Laplante and her friend, Tamika Pipunic. He is seen talking and apparently horsing around with them when the victim and a friend of the victim walked by the accused on their way out of the McDonald.
[7] As he was walking out and passing by the accused, the victim was heard by witnesses to have said, on a number of occasions, words to the effect of “shut the fuck up”. Very shortly after the accused is observed breaking off from talking to his sister and her friend and rushing or storming out of the restaurant.
[8] The accused catches up to the victim and his friend, just outside the restaurant. The victim and his friend appear to be trying to calm the accused – and appear to turn to walk away or to leave. The accused sister and her friend, Tamika, catch up to them and tried to calm the accused – Tamika tried to block or prevent the accused from going after the victim. The accused nonetheless went after the victim and his friend.
[9] Sgt. O’Brien testified that independent witnesses describe the victim and his friend walking away with the accused pursuing them and the accused starting the fight. The victim and his friend fought back and punches were exchanged by all but the accused was outnumbered and clearly lost the fist fight. The accused was punched and kicked on a number of occasions by the victim and his friend. However, the victim and his friend eventually stopped the fight after the accused was on the ground and the fight was broken up by the sister and her friend. The victim and his friend had disengaged and appeared again to be on their way to leave when the accused got up and chased after the victim.
[10] Although the video is not the clearest, the victim then appears to be stabbed once by the accused and appears injured, bent over and partly on the ground. The accused is then observed leaving the victim and running after the victim’s friend in some sort of a semi-circle. The accused could not catch the friend of the victim, who clearly was running away. The accused is then observed breaking off this pursuit and running back towards the victim, who is still partially on the ground and appears to be injured. The accused then appears to forcefully and repeatedly stab the victim.
[11] The victim, Mr Abdullah AL-TUTUNJI, was pronounced dead at the hospital. He suffered multiple stab wounds, nine in total, with: one to the centre region of his abdomen, one to his left hip, one to his right thigh, one to his right arm and five to his back. The stab wound to the mid-spine area of his back is believed to have been the fatal blow.
[12] The accused was also injured, sustaining a laceration under his left eye, swelling around his left eye, abrasions to his shoulder and a cut to his right knee. The injury to the accused’s right knee was a stab wound. Sgt. O’Brien testified that it most likely appeared to have been self-inflicted when the accused repeatedly stabbed the victim, as none of the witnesses interviewed by Sgt. O’Brien observed a weapon on the victim or on the victim’s friend at any time.
[13] After the stabbing, the accused walked back towards home and, on his way, met his mother who drove him to the Civic Hospital where he was treated and eventually arrested.
[14] The police recovered a knife in the rear driver’s side well of the accused mother’s vehicle. Red staining was observed on the knife which has been sent for analysis. Pictures filed at the hearing show a dark grey or light black US Army folding knife. The accused’s sweater was also seized and covered with blood.
Proposed Plan of Release and Circumstances of the Accused
[15] Mr. Larocque-Laplante proposes to be released in the care of his mother, Ms. Joanne Laplante, under house arrest, with his mother as his surety. They are both prepared to sign a bond in the amount of $5,000 each. The accused indicated that he would abide by conditions and not leave his mother’s residence except in the presence of his surety for purposes of attending emergency medical attention or to attend at court as required. He would, as well, wear an electronic monitor, rented and provided by Recovery Science Corporation.
[16] Mr. Larocque-Laplante is 20 years old, born November 1, 1996. He has an almost inexistent work record and has not completed his high school education. Most of his time was spent playing video games, watching movies or hanging around with his friends.
[17] Ms. Johanne Laplante, the accused’s mother, does not work and has been on social assistance for significant portions of her life. The accused is the youngest of four siblings. Ms. Laplante presently looks after two grand-daughters and the Children’s Aid Society has informed her that this will not be possible should the accused be allowed to live with her.
[18] Ms. Laplante is nonetheless quite agreeable with the proposed plan and indicated that she would supervise the accused on a full time basis and report him to the police in the event of a breach.
[19] Mr. Stephen Tan of Recovery Science Corporation testified relating to the proposed electronic monitoring of the accused. Mr. Tan explained that electronic monitoring does not prevent an accused from breaching his or her conditions but rather provides evidence in the event of a breach, as it tracks the person’s location. Monitoring is conducted by software (a computer program) that issues an alert in the event that an accused’s travels are unauthorized. The system also allows police to monitor the account, if they wish. Although the electronic GPS monitoring system delivers instantaneous information, it could take about 10 minutes prior to Recovery Science being made aware of an alert. Recovery Science would then firstly attempt to verify the presence of any satisfactory explanation, which might take anywhere between an additional 10 to 30 minutes prior to the police being called should a breach be confirmed. It nonetheless does not give an accused much of a head start. However, as explained by Mr. Tan, the threshold is not time or preventing a breach but rather monitoring the accused. The bracelet is worn 24/7 and an alert will be issued in the event of low battery, tampering, removal or breach. Monitoring is, however, subject to the reliability of the surety as the surety could, when contacted in the event of an alert, provide false information.
[20] The accused has no criminal record. However, he currently faces other charged of aggravated assault and uttering threats. These charges relate to event that occurred at an Ottawa festival on June 17, 2016.
[21] Sgt O’Brien testified that during the morning of June 17, 2016, the accused and a friend each stole a case of beer from a local brewery store. This was caught on video and the accused was later arrested, charged and eventually these charges were diverted, as provided under that program. However, later that same day of June 17, at about 11:30 in the evening, an altercation occurred at a festival on Bank Street. Sgt O’Brien testified that an argument developed between two groups of young ladies, apparently over an alleged compliment. Shortly thereafter, three young men and the young ladies returned and what had earlier been a verbal argument then escalated into a fist fight.
[22] At some point, one of the young men struck one the young ladies on the side of the head with a beer bottle, causing her a significant laceration and abrasion which required stitches and reconstructive surgery. Two witnesses identified the accused, Mr. Larocque-Laplante, as the perpetrator, along with another young man, a Mr. Décarie. Mr. Décarie has apparently pled guilty to uttering threats and the accused has been charged with aggravated assault, assault with a weapon and utter threat as a result of these alleged events.
[23] At this bail hearing, the accused argues that the witnesses to the events of June 17, 2016 are unreliable and that identity will very much be an issue for these charges. His lawyer argues that although the accused was present, he was not the person who committed the assault, which could have been committed by his friend, Mr. Décarie (as, it is alleged, that the description of a witness might better match Mr. Décarie).
[24] With respect to the charges of aggravated assault, relating to the events of June 17, 2016, the accused was released on a recognizance and was still subject to conditions, including that he not consume alcohol or illicit drugs and that he be home between the hours of 9 pm and 6 am when the events of December 11, 2016 occurred.
Position of the Parties
[25] The Crown does not put in issue the primary ground, such that arguments were limited to the secondary and tertiary grounds.
[26] Counsel for Mr. Larocque-Laplante submits that the plan is sufficient such that there is not a substantial likelihood that the accused would commit an offence or interfere with the administration of justice. He argues that the surety, house arrest and electronic monitoring mitigate the risks and allow the accused to meet his onus of demonstrating that there is not a substantial likelihood that the accused will, if released from custody, commit a criminal offence. He therefore argues that detention is not necessary for the protection of the public or witnesses (the secondary ground).
[27] The Crown argues that the accused has not met his onus to satisfy the Court that there is not a substantial likelihood that he would commit an offence or interfere with the administration of justice if released from custody and therefore that he has not shown that his detention is not necessary for the protection or safety of the public and/or witnesses. Essentially, the Crown alleges that the accused is extremely violent, that historically the accused’s mother has not been able to control him and that electronic monitoring with a weak surety, in these circumstances, does not allow the accused to meet his onus on the secondary ground.
[28] Under the tertiary ground, the accused submits that the Crown’s case is not as strong as it might initially appear. For purposes of the bail hearing, counsel for the accused argues that even if the actus reus of the offence might not be in issue, the mens rea components are. He argues that intent is an issue as is intoxication, self-defence and provocation. He argues that the four factors are therefore not all met and that balancing all of the relevant circumstances, including those of the accused and of the event, together with the proposed plan would lead a reasonable and properly informed person to conclude that detention is not necessary to maintain confidence in the administration of justice.
[29] The Crown submits that when the four factors and all circumstances are weighed, the accused has not met his onus on the tertiary ground.
Analysis
[30] Pursuant to s. 522(2) of the Criminal Code, for charges including murder, the accused bears the onus of showing, on a balance of probabilities, why he should be released. Justification for detention is found within the meaning of section 515(10) of the Criminal Code, namely, the primary, secondary and tertiary grounds. That section reads:
(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.
[31] The right to bail is a constitutionally protected right, as is the presumption of innocence. However, as noted in R. v. Ronald, 2014 ONSC 6214, at this stage the Court is tasked with an assessment of risk, considering all relevant circumstances and grounds outlined at s. 515(10) of the Code.
[32] The primary ground was not required to be addressed by the Crown and, considering the evidence, the accused has met his onus on the primary ground.
[33] Under the secondary ground, as this is a reverse onus, the accused must show that there is not a substantial likelihood that he will, if released, commit a criminal offence or interfere with the administration of justice.
[34] When evaluating that risk, I consider that a charge of second degree murder is one of the most serious charges in the Code. I consider as well, as will be explained later under the tertiary ground analysis, that the evidence against the accused appears at this stage to be very strong. The crime appears to have been senseless and extremely violent. The accused does not have a criminal record and although he is facing charges for aggravated assault he does appear to have a plausible defence to some of the charges related to the aggravated assault. Nonetheless, he was present and played some role at the violent altercation of June 17, 2016 and, in any event, was clearly under conditions which he breached when the murder occurred.
[35] A surety is expected not only to be willing but, more importantly, to be able to supervise the accused.
[36] Ms. Joanne Laplante, the accused mother, is no doubt well intentioned. However, in the past, she does not appear to have been able to exercise any significant control over the accused who, has to date, always lived at her residence. For example, the accused did not complete school. Ms. Laplante, when the accused was younger and presumably more respectful of her authority, was then unwilling or unable to convince the accused to regularly go to school. Similarly, with very few exceptions, she has not been able to convince the accused to work and to contribute financially to the family. Another example is that the accused was out on a recognizance and subject to an undertaking or conditions when the murder occurred. Ms. Laplante was aware that the accused had been under a curfew and had been prohibited from drinking but explained that she understood that these conditions were no longer applicable because of how the other charges related to the beer theft had been dealt with. This explanation does not reflect well on Ms. Laplante. At one extreme, it shows a lack of understanding and a failure to enquire when she reasonably should at least have had some doubts considering that she knew that the aggravated assault charges were still being pursued. At the other extreme, it shows either little respect for this undertaking or these conditions or it shows again a failure on her part to be able to control the accused. Isn’t a much more likely explanation, considering past behaviour, that Ms. Laplante was simply, yet again, either not willing to risk a confrontation or not able to control her son? In any event, her explanation and her past conduct leave me with serious reservations and very little confidence in her abilities should she be a surety.
[37] The sufficiency of any electronic monitoring depends on the surety calling police if the accused is in breach. As explained above, past behaviour leaves me with significant concerns about Ms. Laplante’s ability to control her son. I have concerns that she did not even enquire when a reasonable person would, at a minimum, not have been certain whether or not the earlier conditions still applied. This failure to at least enquire shows some reluctance to call for her son as she failed to confirm with police to ensure that the accused could drink and could be out late at night, when the evidence shows that she was aware that he was going to the McDonald late the morning of the murder. This, even at its best, reduces the reliability and the value of the electronic monitoring.
[38] Consequently, I find that the surety and the plan proposed by the accused are weak. The fact that the accused is young, does not have a record, and is not a member of a gang are not sufficient when all circumstances are considered.
[39] When I assess how quickly and how violently the circumstances of the murder occurred, and when I consider the above, having considered all of the cases referred to by both counsel, I am not satisfied on the secondary ground that the accused has shown that there is not a substantial likelihood that he will, if released, commit a further criminal offence or interfere with the administration of justice. I therefore find that his detention is necessary for the protection or safety of the public.
[40] In R v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court stated that the tertiary ground should not be interpreted narrowly or applied sparingly in only rare and exceptional cases. At para. 88, the Supreme Court indicates:
“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, pretrial detention will usually be ordered.”
[41] In assessing the four factors outlined at s. 515(10)(c), I find that the prosecution has a strong case against Mr. Larocque-Laplante. There are a number of independent witnesses and video surveillance. The accused was known to carry a knife and one was found in his mother’s car matching to some significant extent his mother’s descriptions of his knife. What looked like blood was found on the knife, the knife is gone for testing and blood was found on the accused’s clothing.
[42] The accused has raised a number of defences but, at this preliminary stage, there seems to be no reasonable basis for these defences. Although the accused was found to have 200 mg of alcohol per 100 litre of blood when at the hospital shortly after the murder, he did appear, at the McDonald, to have been functioning and alert - sufficiently to form the required intent and there is no evidence suggesting how he might have been impacted by his consumption of alcohol and or drugs that evening. Indeed, the evidence is that he called his sister and walked over relatively quickly. He appeared on the video to have been aware of his surroundings and appeared to be walking fairly normally. Regarding self-defence, it seems contradicted by what is at this stage plainly evident on the video and apparently confirmed by the independent witnesses – that the victim and his friend disengaged and walked away – exerting no violence and posing, at the time, no reasonably apparent threat to the accused. Similarly, provocation does not, at this stage, appear to have any reasonable basis when the evidence shows the victim and his friend being attacked by the accused and having to defend themselves.
[43] It is not contested that gravity is made out. Similarly, it is not contested that the accused is liable, on conviction either for second degree murder or for manslaughter (in the event that provocation is made out), to a lengthy term of imprisonment.
[44] Considering the circumstances surrounding the offence, the accused is charged with second degree murder and this is obviously a very serious offence involving extreme violence, causing the death of Mr. Abdullah AL-TUTUNJI. However, this was a particularly violent murder. The victim and his friend tried to disengage and to walk away but the accused pursued them and even after the accused had stabbed the victim once, the accused shortly after pounced again and violently, forcefully and repeatedly stabbed the victim eight more times.
[45] Although I agree with the lawyer for the accused that the victim was not vulnerable in either the classical sense of that word or as is referred at para. 88 of St-Cloud, the victim was nonetheless in a vulnerable position after being stabbed a first time. Even if the accused had lost the fight, had been severely beaten by the victim and his friend and was to some extent intoxicated, the victim and his friend had stopped the fight at the time when the accused charged and violently attacked the victim.
[46] The age of the accused, lack of a record, lack of planning or of premeditation do not in my opinion assist the accused when one considers the violent nature of the attack and the weak plan that is proposed. Indeed, for reasons indicated above, the plan is weak and does not off-set the risks that would be posed by the release of the accused.
[47] Having considered the four factors outlined above and balancing all relevant circumstances, having reviewed and considered all of the cases referred to by both counsel, I find that the accused has not met his onus of satisfying me that his detention is not necessary in order to maintain the confidence of the public in the administration of justice.
[48] For all of the above reasons, the Application of Mr. Larocque-Laplante for bail pending trial is denied.