Court File and Parties

COURT FILE NO.: CR-16-40000624-0000 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MICHAEL DURU Defendant

Counsel: Barry Stagg, for the Crown Jeff Carolin, for the Defendant

HEARD: May 3, 2017

REASONS FOR JUDGMENT ON BAIL

B.A. ALLEN J.

Background

[1] The accused, Michael Duru, was arrested on August 14, 2015 in relation to a drive-by shooting that occurred on April 10, 2015. He is charged with attempt murder (x 3) and endangering life (x 3).

[2] The brief facts of the incident are that at about 9:11 p.m. on that evening a Volkswagen (“the victim vehicle”) was driving eastbound on Finch Ave. West. There were three passengers in that vehicle. The victim vehicle was in the centre lane. A Mazda (“the suspect vehicle”) pulled up beside the victim vehicle into the turning lane. A gunman in the suspect vehicle fired some gun shots into the victim vehicle. The suspect vehicle fled. The driver of the victim vehicle was shot and suffered a fractured spine, damage to his lungs and other injuries.

[3] It is the evidence of one witness that the shots fired from the suspect vehicle came from the passenger in the rear driver’s side seat. There is no direct evidence of where Michael was sitting when the shots were fired. There is no direct evidence that he fired the shots.

[4] The Crown’s theory is that Michael was the driver of the suspect vehicle at the time of the drive-by shooting. The Crown bases this theory on evidence collected by the police after the incident. The police collected surveillance video from a number of businesses in the area and GPS data.

[5] One video captures someone about 20 minutes before the shooting at a gas station nearby on Highway 400 who the police identify as Michael. The person is seen exiting the suspect vehicle and entering the gas station. The suspect vehicle was a rented vehicle with GPS coordinates that the police used to track the movements of the vehicle. The police followed the suspect vehicle on April 12, 2015 from the complex where Michael resided. Michael denied doing the shooting but admitted that he was driving the suspect vehicle two days after the shooting on April 12th.

[6] Michael was not arrested until four months after the shooting on August 14, 2015. The officer in charge who investigated the matter indicated the core of the investigation was completed by May 26, 2015.

Chronology of Circumstances of Bail

[7] On August 31, 2015, Michael was released on house arrest. The conditions of bail included: residing at home with his surety who was his mother, Roseline Duru-Obisi, and his sister, Diane Duru-Obisi, and remaining at home at all times, seven days a week, with the regular exceptions for leaving the residence for medical appointments and if in the presence of his lawyer or surety.

[8] Michael’s father, Nathan Duru-Obisi, who resides elsewhere, would come to the home to assist with supervising Michael. The condition that enhanced the restrictiveness of Michael’s house arrest was a requirement that Michael never be home alone, always to be in the presence of a surety or another adult. These bail conditions remained in place for some three months, until November 9, 2015.

[9] On November 9, 2015, Michael was arrested for robbery. The facts of this incident are unusual. Michael’s younger brother, age 15 years, was on a computer social media site where he made contact with an older man who was 26 years of age. The man planned to meet the younger brother at the family home. The man messaged the brother that he had arrived. The mother discovered this and asked Michael to go out to the man’s vehicle and ask him to leave his younger brother alone. The mother accompanied Michael out to the vehicle and Michael got into the front passenger’s seat. Michael got out of the vehicle with the man’s wallet and cellphone.

[10] The mother discovered the wallet and was planning to mail it to the man to the address on the driver’s license in the wallet. She took the wallet to work with her the next day. Before she could mail it she received a call that Michael had been arrested for robbery. Michael was placed in custody where he remained for some five months. On April 6, 2016, he pleaded guilty to the robbery and received enhanced credit for time served and a suspended sentence. The Crown did not apply to cancel bail under s. 524 of the Criminal Code. Michael therefore remained on bail on the then existing bail conditions.

[11] On October 5, 2016, the bail conditions were varied to curfew conditions. He was to remain in the residence seven days a week between the hours of 8:00 p.m. and 7:00 a.m. The requirement that he not be home alone was removed. As well, Michael was allowed to be away from the residence between 7:00 a.m. and 8:00 p.m. for purposes including seeking employment, employment, school community service, etc., and travel to and from these locations.

[12] Therefore, for about two months, from August 31, 2015 to November 9, 2015, and for a further six months, from April 6, 2016 to October 5, 2016, Michael was on the enhanced house arrest bail conditions.

[13] On April 5, 2017, Michael was arrested at 8:37 p.m. while a passenger in a parked vehicle in Brampton. The officers who arrested him allege the driver of the vehicle appeared to be acting evasively. They allege Michael was seen brushing a leafy green substance from his lap. This gave them the grounds to investigate whereupon they seized a small amount of marijuana and alcohol from the vehicle. Michael gave the officers a false name. Michael was in breach of his 8:00 p.m. curfew. He was charged with failing to comply with his bail curfew, obstructing a peace officer and breaching probation.

The Bail Hearing

Nature of Proceeding

[14] At today’s hearing, the Crown sought to cancel Michael’s bail under s. 524. The defence consented to this. This is a reverse onus case where the defence has the burden to prove Michael is entitled to be released on bail.

[15] The defence comes before the court today seeking a new bail hearing. The defence primarily seeks a release on bail on terms similar to the conditions imposed on the October 5, 2016 variation. In the alternative, the defence seeks the terms imposed on the original bail including the term of enhanced house arrest. The main difference between the April 5, 2016 terms and the terms sought today is that instead of Michael’s sister being one of the sureties, it is proposed that she be replaced with the father. So the mother and father are the proposed sureties.

The Plan of Supervision

[16] The mother lives in their three-bedroom home with her four children, one of whom is Michael. She has no criminal record. She is a Canadian citizen. Michael has his own bedroom. The mother is a personal support worker who works one of two shifts: either 3:00 p.m. to 11:00 p.m. or 7:00 a.m. to 3:00 p.m. She is prepared to put up her RESP savings of just over $9,000 as security for bail.

[17] Michael had no criminal record before his arrest on the charges before the court. The mother stated that Michael has completed high school. He sought while on bail to attend George Brown College but he was late in applying.

[18] The mother testified about the role she played as a surety both during the enhanced house arrest period and during the curfew period. She testified that during the enhanced house arrest period she ensured when she had to leave the home that an adult came to the home to supervise Michael. She provided as evidence several of the notes she kept of her approving an adult to supervise her son. She testified that her son was generally very obedient. He would listen to her instructions and remain in the home as required.

[19] The mother testified that when curfew terms were allowed Michael was dedicated to obtaining a job. He looked to become a forklift driver. In evidence is a certificate dated December 21, 2016 that certifies that he successfully completed the lift truck operator’s course. He succeeded in finding a place of employment. There were two possible full-time shifts, a day shift and a night shift. The employer could only offer him a full-time night shift position.

[20] Because of his curfew it was not possible for him to work the night shift. The Crown agrees that defence counsel contacted the Crown’s office requesting a bail variation which would allow Michael to be outside his residence between 8:00 p.m. and 7:00 a.m. for the purposes of employment but there was no response from the Crown.

[21] Michael did manage to work some hours. In evidence are pay slips that indicate he worked in January and February 2017. The mother testified that her son was very enthusiastic about getting his G license to be able to get a job driving a truck.

[22] The mother was questioned about the arrest for robbery on November 9, 2015 and his arrest on April 5, 2017 on the Brampton charges.

[23] The mother testified she was very upset with her son when she found out he had stolen the man’s wallet. She said she took it from him so she could rectify the situation. She intended to mail it to the man. She was asked why when she knew her son had committed a crime she did not call the police. She responded that she was concerned more about her young 15-year-old son being victimized by an older man. The mother thought that if she called the police her young son’s identity might be revealed as a victim of a sexual predator and his name might be in police records, the news and the internet. She wanted to protect her young son from that kind of exposure. She explained that she thought that if she returned the wallet that would rectify the situation. Her focus in her testimony on protecting her young son made it appear as if the mother did not acknowledge her responsibility as a surety to report Michael for his offence. But I find it can be gathered from the totality of her evidence that she knows she made a serious error.

[24] The mother testified that through the many months her son had been on house arrest and curfew, the only time he was not at home when he should have been was on April 5, 2017 when he was arrested in Brampton. She said she always checked on him throughout the day when she was home. She would check on him before she went to work, when she got home from work, and throughout the evening by knocking on his bedroom door and speaking to him.

[25] The mother testified that on the afternoon of April 5, 2017 she got home from work around 5:00 p.m. They had a little party for Michael’s birthday at around 5:00 p.m. She had worked the jobs of two people that day and she was very tired. She went to bed and set the alarm to awake her early in the morning. She heard her son’s TV was on in the morning and thought he was in his bedroom. She did not find out until later that day when she was at work that he had been arrested in Brampton.

[26] The mother explained that she was very upset and angry with her son, and still is. She said she could see that over the many months he had been out on bail he was being obedient and at home when he was required to be. The mother expressed the view that it was an exceptional situation for him to have been out of the house without her knowing it. She emphasized that she would make sure if he is released that that would never happen again.

[27] The father is prepared to take on the role of a surety. He is not employed and is in receipt of disability benefits. He does not live in the family home but resides a 30 to 45-minute transit ride away. He is prepared to go to the home several times a week if required to supervise his son as he had done under the previous bail arrangement. He is prepared to put up $1,500 as security for bail.

[28] Both the mother and father stated that they are prepared to call the police on their son if he is in breach of his bail conditions. Both state they are prepared to be sureties if the court orders the previous enhanced house arrest terms.

Conclusion

[29] The primary grounds are not an issue in this case. The secondary grounds are of most concern.

Secondary Grounds

[30] Under s. 515(1)(b) of the Criminal Code bail can be denied “for the protection or safety of the public” … and if there is “any substantial likelihood that Michael will … commit a criminal offence or interfere with the administration of justice.” I look to the Supreme Court in R. v. Morales for guidance on the application of that provision. There has to be a substantial likelihood Michael will commit an offence and the substantial likelihood must pose a danger to the protection or safety of the public. The Court went on to explain that “detention is justified only when it is “necessary” for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at pp. 17 and 18.

[31] The Crown takes the position that the robbery and the Brampton charges committed while under house arrest and curfew on the charges before the Court stand in the way of the defence being able to meet its onus of showing there is not a substantial likelihood of Michael committing a criminal offence or posing a danger to the safety of the public.

[32] I accept the defence’s position that the nature of the robbery is based on peculiar facts unrelated to the type of offences before the Court. Although a robbery should not be underestimated in its seriousness, the particular robbery in this case arose from an unusual circumstance and stands on its own as somewhat unique. I find this does not give rise to a substantial risk of re-offence. It is not the type of circumstance that poses a danger for public safety and protection as envisaged by R. v. Morales.

[33] The types of charges that arose in Brampton are not to be discounted as inconsequential. Breach of a curfew and obstructing a police officer are offences to be taken seriously. However, I also find that in all the circumstances, given the lengthy period of time Michael was on strict house arrest and curfew and his lengthy periods of compliance, there is not a substantial risk that he will re-offend. The nature of the offences does not pose a danger to the security and safety of the public.

[34] In arriving at my conclusion on the secondary ground, I took into account that Michael had no criminal record before he was charged with the offences before the Court.

[35] In looking at the plan of supervision during the curfew period, I find Michael has made good use of his time. His mother has encouraged him by paying for his fork lift driving course. He completed the course and worked a few weeks on the job. He made an attempt to have bail varied so he could work at night but to no avail. He has made progress that I find should not be discouraged.

[36] I accept the bail conditions as varied on October 5, 2016 are appropriate but I impose a condition allowing the mother and father to be sureties. I find the plan of supervision with the father and mother as sureties to be a fit plan. The father is free to visit with the son when the mother is at work to give him guidance and support him in his pro-social life plans. I will allow a further change of the curfew terms which will permit Michael to be away from the residence from 7:00 p.m. to 7:00 a.m. for the purpose of employment.

[37] I found the mother very sincere in her dedication to stay behind her son to ensure he remains in compliance with his terms of bail. While it was not in accord with her obligations as a surety that the mother did not report the robbery, I believe that her motive behind not reporting was not to hide the misdeed of Michael but rather to protect her young vulnerable son from public exposure of being a victim of a child predator. I believe she understands she should not have taken this situation into her own hands and knows she must call the police.

[38] Further, this is a family of very modest financial means and they are willing to post an amount of security for bail that would be very taxing on them financially. This provides added impetus for the parents to be vigilant in supervising their son.

Tertiary Grounds

[39] Under s. 515(10)(c), bail can be denied “in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the strength of the Crown’s case, the gravity of the nature of the offence, the circumstances surrounding its commission (including whether a firearm was used) and the potential for a lengthy term of imprisonment.”

[40] The charges before the Court are no doubt serious. I must take into account that a firearm was involved. Michael’s guilt of the offences will be decided largely on circumstantial evidence. This is basically an identification case. The Crown takes the position that Michael was driving the vehicle. There is evidence from a witness that the gun shots came from the back driver’s side seat. The police have surveillance evidence that the Crown says is sufficient to establish Michael’s guilt as being involved in the crimes. However, pointing away from guilt is the fact that none of the occupants in the victim vehicle know Michael.

[41] The Supreme Court of Canada in R. v. St. Cloud offers guidance on assessing the reasonableness of bail on the tertiary grounds. The Court observed that confidence in the administration of justice would most adversely be affected if a person charged with a serious crime is released into the community in the face of “overwhelming evidence”. It must be remembered in considering release that the release of accused persons is the cardinal rule and detention, the exception: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 2 and 70.

[42] I find the Crown does not have a strong case. There is no overwhelming evidence in the Crown’s case that would diminish confidence in the administration of justice if Michael were released. Again, I considered the fact that Michael did not have a criminal record before he was charged with the offences before the Court.

Disposition

[43] I grant bail on the same terms as those imposed on the October 5, 2016 variation, except:

• that Michael Duru’s father, Nathan Duru-Obisi, shall replace the sister, Diane Duru-Obisi, as surety;
• the curfew time shall be varied to allow Michael to accept employment that commences at 8 p.m. and ends at 7 a.m.;
• the mother, Roseline Duru-Obisi, shall post $9,000 security for bail; and
• the father shall post $1,500 security for bail.

B.A. ALLEN J. Released: May 5, 2017