CITATION: R. v. Layne, 2017 ONSC 7662

COURT FILE NO.: 90DR(P) 709/17

DATE: 20171222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Adam Layne

Defendant/Applicant

K. Holmes for the Crown

M. Martin for the Defendant/Applicant

HEARD: December 12, 2017

THE CONTENTS OF THIS RULING SHALL NOT BE PUBLISHED IN ANY MANNER BEFORE SUCH TIME AS THE TRIAL OF THE APPLICANT HAS ENDED, UNLESS OTHERWISE ORDERED BY A JUDGE OF THE SUPERIOR COURT OF JUSTICE OR THE COURT OF APPEAL FOR ONTARIO.

ENDORSEMENT ON BAIL REVIEW

Ricchetti, J.

Contents

THE CHARGES. 3

THE APPLICATION.. 3

THE ALLEGATIONS. 3

THE ISSUE FOR TRIAL.. 4

THE CROWN’S CASE.. 4

THE AUGUST 2, 2017 BAIL HEARING.. 7

THE LAW... 8

Material Change in Circumstances. 10

Secondary Ground. 10

Tertiary Ground. 11

THE POSITION OF THE PARTIES. 11

MATERIAL CHANGE IN CIRCUMSTANCES. 12

THE PROPOSED PLAN.. 12

THE EVIDENCE ON THE BAIL REVIEW... 12

Pauline Layne. 13

Everol Layne. 14

Mr. Layne's Prior Involvement with the police. 16

ANALYSIS. 16

Secondary Ground. 17

Tertiary Ground. 18

CONCLUSION.. 20

THE CHARGES

1Mr. Layne is charged with the attempted murder of Mr. David Forson by discharging a firearm.

THE APPLICATION

2The Defence brings this bail review seeking an order granting Mr. Layne judicial interim release under s. 520 of the Criminal Code.

THE ALLEGATIONS

3Mr. Layne and Mr. Forson appear not to have known each other before this incident.

4On the 4th day of July, 2017, Mr. Layne was in a vehicle ahead of Mr. Forson’s vehicle at a Wendy’s Restaurant. Mr. Forson was in a white Hyundai. Mr. Layne was in a black SUV Mazda. A dispute arose between the two men – likely because of a joke by Mr. Forson. When Mr. Forson tried to leave, Mr. Layne blocked Mr. Forson's path with his black SUV Mazda. Words were exchanged during the confrontation but nothing physical occurred at the Wendy’s. Mr. Layne followed Mr. Forson's vehicle for a period of time.

5On the afternoon of July 5, 2017, Mr. Forson was visiting his girlfriend. At approximately 3:30 pm, several minutes before the shooting, Mr. Layne’s black SUV Mazda was seen driving past Mr. Forson’s girlfriend’s home.

6Mr. Forson decided to have a cigarette. In order to do so, because of his girlfriend's parent's rules, Mr. Forson drove his white Hyundai a block or two away from his girlfriend’s home. Mr. Forson parked in his vehicle on the side of the road. He started to smoke a cigarette.

7A few minutes later, Mr. Layne’s black SUV Mazda vehicle drove by Mr. Forson’s white Hyundai vehicle in the opposite direction. Mr. Layne’s black SUV Mazda vehicle moved towards the curb, stopped and reversed. Mr. Layne's black SUV Mazda vehicle pulled alongside Mr. Forson’s vehicle – driver side to driver side.

8After a few words were exchanged, Mr. Layne pointed a black firearm at Mr. Forson and shot Mr. Forson three or four times. One bullet went through Mr. Forson’s neck.

9Mr. Layne drove off in the black Mazda SUV vehicle leaving Mr. Forson shot and injured or dead in the Hyundai vehicle.

10After a short while, Mr. Forson, while bleeding profusely, regained consciousness and was able to get help.

THE ISSUE FOR TRIAL

11The Defence submits that the central issue at trial will be identification. In other words, whether the Crown can prove beyond a reasonable doubt that Mr. Layne was the shooter.

THE CROWN’S CASE

12Mr. Forson was taken to the hospital on August 5, 2017 after the shooting.

13Mr. Forson gave a statement to the police on July 13, 2017 describing the allegations above. During the July 13, 2017 statement to the police, Mr. Forson did not tell the police about the Wendy’s incident. I am not persuaded that Mr. Forson lied to the police. He feared for his safety and his girlfriend’s safety (being in the vicinity of the shooting). One of his recollections included observing a red August validation sticker on the license plate. Mr. Forson also described in detail the moments leading up to Mr. Layne shooting him.

14Mr. Forson gave the police a detailed description of the shooter including that he was male, black, dreadlock hairs, brown eyes, dark goatee with beard, diamond "grillz" on his teeth (top and bottom), tattoos on his neck, arms, hands and fingers and he had a Jamaican accent. This description is consistent with Mr. Layne’s description at the time.

15The police obtained video surveillance in the area of the shooting. One motion-activated surveillance video from the area recorded a 20 second segment. The video captured Mr. Forson’s white Hyundai vehicle by the side of the road. The video shows a black vehicle driving past Mr. Forson’s vehicle. The black vehicle backed up and pulled alongside Mr. Forson’s vehicle.

16The actual shooting is not caught on this video. What is shown in the video is consistent with Mr. Forson's description as to what happened on July 5, 2017.

17On July 19, 2017, Mr. Forson gave another statement to the police where he described the Wendy’s incident. This gave information to the police which permitted them to attend at the Wendy’s and obtain video surveillance footage showing the Wendy's incident the prior day. From the video footage, the police were able to identify the black SUV Mazda. They traced the black SUV Mazda to Pauline Layne, Mr. Layne’s mother. The video surveillance also showed a photo likeness of Mr. Layne in the black Mazda vehicle.

18The police conducted surveillance on Mr. Layne and observed what appeared to be a series of hand to hand drug transaction.

19On July 27, 2017, Mr. Forson attended a photo lineup. Mr. Forson selected Mr. Layne’s photograph claiming to be 100% sure that it was Mr. Layne at the Wendy's and the shooter. The Defence submits that the reliability of this identification is flawed because Mr. Forson had a “long pause” when he saw Mr. Layne’s photograph. I disagree. It is clear from Mr. Forson’s comments in his earlier statement and subsequent comment during the photo lineup that the pause appeared to be due to Mr. Forson's concern for his safety and his girlfriend's safety.

20During this hearing, there was no suggestion by the Defence that Mr. Forson’s description in his statements to the police and the photo of Mr. Layne were different in any significant way.

21Mr. Layne was interviewed by the police and acknowledged that it was him at the Wendy’s on July 4, 2017 video surveillance. However, Mr. Layne denies he was the shooter.

22Police photos of Mr. Layne show him having tattoos consistent with the descriptions provided by Mr. Forson.

23Mr. Layne also has diamonds "grillz" on his teeth, again matching the description provided by Mr. Forson.

24A search warrant executed on July 21, 2017, did not discover a firearm at Mr. Layne’s home. However, the police discovered, in his bedside drawer, a starter pistol with attempted modifications consistent with someone trying to convert it for use as a firearm and the removal of the serial number.

25When the police seized the black SUV Mazda, it had a red August validation sticker as had been described by Mr. Forson to the police.

26After testing, gunshot residue was found in the black SUV Mazda belonging to Pauline Layne.

27A cell phone seen by the police to be used by Mr. Layne was seized by the police. The cell phone was registered to a false address. The cell phone records show that the cell phone was in the vicinity of the Wendy’s at the time of the altercation on July 4, 2017 and in the vicinity of the shooting on July 5, 2017.

28One of the tattoos on Mr. Layne’s hand/finger says SCO. SCO is a gang. The police have “observed” Mr. Layne to have a leadership role within the SCO gang and stated that Mr. Layne promotes gang activity with clothing, tattoos, social media, specifically YouTube videos. One tattoo was a three point crown, known to the police to be related to a gang. The YouTube videos include rap videos which show Mr. Layne with guns (but it is unknown if they are real or replicas), drug production and violence. Mr. Layne associates with person known to be criminals (with extensive criminal records). The police have no information which shows Mr. Layne is employed.

29The firearm used in the shooting has not been located.

30Mr. Forson is concerned for his safety. He has stated his concerns a number of times during his statements to the police.

THE AUGUST 2, 2017 BAIL HEARING

31At the bail hearing, the Defence proposed release of Mr. Layne with his mother, Pauline Layne as surety with a pledge of $30,000.

32Mr. Layne’s father, Everol Layne, was not present during the bail hearing or put forward as a surety.

33Justice of the Peace Ross detained Mr. Layne on the secondary and tertiary grounds.

34Justice of the Peace Ross stated that:

• “I’m not convinced that he’s [Mr. Layne’s father, Everol Layne”] willing to participate in the plan before the court.”

• “We have a mother who does not want to believe, and will not believe, that you are involved in this matter. She is looking at you as her son, who she loves deeply, and believes that you will do everything you’re required to do, that you will not in any way breach any conditions if you are to be released”

• “I do not believe that your mother would call the police should you breach any of these conditions. I do not believe that she would be able to supervise you because again she listens to whatever you tell her, and she believes it. She doesn’t question anything. She believes whatever you say.”

• “I do not believe that your mother is capable of supervising you and that the secondary grounds are of grave concern.”

• “With respect to the tertiary grounds, they are not often used, but in this particular case where after an altercation at Wendy’s and the following day the same person who was in that altercation driving a motor vehicle with the license plate taken down by the person who was shot in a residential neighbourhood, at 4:15 in the afternoon, daylight hours, anybody could have been hurt on that particular day. I think tertiary grounds do come into play, and for the same reasons that I’ve given on the secondary grounds, I think the crown has met its onus”.

35Bail was denied by Justice of the Peace Ross.

THE LAW

36Section 520 (7) of the Criminal Code provides:

(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,

and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.

(emphasis added)

37The Supreme Court in R. v. St – Cloud, 2015 SCC 27 summarized the essential principles applicable to s. 515(10)(c) bail application as follows:

87I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

i. Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.

ii. Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

iii. The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.

iv. A court must not order detention automatically even where the four listed circumstances support such a result.

v. The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

vi. The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.

vii. No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

viii. This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

ix. To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

88In 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, pre‑trial detention will usually be ordered.

38A detention review is not a hearing de novo. See. St. Cloud para 118.

39A 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

Material Change in Circumstances

40In R. v. A.A.C. 2015 ONCA 483, the Court of Appeal summarized the need for a material change on a subsequent bail review:

51Third, St-Cloud addresses the bail review authority under ss. 520 and 521 of the Criminal Code. With respect to those sections, St-Cloud instructs that it will be appropriate for a bail review judge to interfere with a bail justice’s decision in one of three circumstances: i) if the bail justice erred in law; ii) if the impugned decision was “clearly inappropriate”; or iii) where new evidence submitted by the accused or the prosecutor shows a material and relevant change in the circumstances of the case: at paras. 121 and 139.

52Fourth, where bail is sought on a review under ss. 520 or 521 of the Criminal Code based on new evidence that is said to constitute a material change in circumstances, the admissibility of that new evidence is to be evaluated in accordance with a modified version of the four-part test for the admission of fresh evidence set out in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759: St-Cloud, at paras. 128 – 29. However, “[g]iven the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end”, and in view of the relaxed approach to the rules of evidence at bail hearings mandated by s. 518 of the Criminal Code, the four Palmer criteria are to be applied in a flexible fashion: at para. 129.

41In R. v. Whyte 2014 ONCA 268, the Court of Appeal described what might constitute a material change in circumstances:

25Courts have recognized that a material change in circumstances will warrant judicial interim release where, for example, in the bail pending appeal context, additional sureties become available, R. v. Baltovich (2000), 2000 5680 (ON CA), 47 O.R. (3d) 761 (C.A), or where the applicant offers a new legal argument and rearticulates existing arguments in a more comprehensive form, Daniels, supra.

26In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material.

Secondary Ground

42The secondary ground requires detention:

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;

(emphasis added)

43As set out in R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

Tertiary Ground

44The Supreme Court in St. Cloud described the approach to bail applications under the tertiary ground:

55Section 515(10)(c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decide whether detention is justified.

56It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case or the possibility of a lengthy term of imprisonment.

71Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c) Cr.C., I think it will be helpful to give a few examples. Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.

THE POSITION OF THE PARTIES

45The Defence submits that there is a material change in circumstances, pointing to the new proposed plan of release – the additional surety, increased pledge of security and the electronic monitoring.

46The Crown submits:

a) there is no material change in circumstances; and

b) in any event, detention continues to be warranted for the reasons set out by Justice of the Peace Rose dated August 2, 2017.

MATERIAL CHANGE IN CIRCUMSTANCES

47This is a close call, but I am prepared to accept that there is a material change in circumstances given that:

a) There is an additional surety proposed – Mr. Layne’s father, Everol Layne;

b) The total amount pledged is increased to $100,000; and

c) Electronic monitoring is proposed in conjunction with house arrest.

48As a result, I will proceed on the basis the Defence has demonstrated a material change in circumstances.

THE PROPOSED PLAN

49The Defence proposes a plan of release:

a) Two sureties, Mr. Layne’s mother and father, Pauline Layne and Everol Layne, pledging $50,000 each;

b) House arrest except when in the company of the sureties;

c) Electronic GPS monitoring.

THE EVIDENCE ON THE BAIL REVIEW

50Pauline Layne ("Pauline") and Everol Layne ("Everol") testified.

51Mr. Tan, on behalf of Recovery Science Corporation, the operator of the electronic monitoring, was prepared to testify but, in the end, not called upon.

Pauline Layne

52The concerns expressed by Justice of the Peace Ross regarding Pauline as a surety, continue to be serious concerns for this court. Pauline's evidence at this hearing did not lessen, but, if anything, increased this court's concerns regarding her suitability as a surety. The concerns included:

a) Pauline had been less than forthright in her previous cross-examination regarding Everol’s whereabouts and support for their son's bail. Pauline continued to appear evasive and less than honest about the reason Everol was not at the bail hearing during the first bail hearing. Pauline simply stated that Everol had prior plans to be out of town. The reason became clear when Everol testified: while his son was seeking bail for attempted murder, Everol decided to go fishing. Pauline did not want to say this, knowing its potential impact on the bail hearing. It is clear from the transcript of the bail hearing that Pauline did not want to talk about Mr. Layne's relationship with his father - or more accurately the lack of a relationship and Mr. Layne's repetitive marijuana use. This adds to this court's concerns whether Pauline was forthright in her evidence and is a credible witness;

b) Pauline testified that she had revoked Mr. Layne’s bail (on a prior charge in 2007) in the past for one day – because Mr. Layne would not go to school. Pauline Layne had not described this in the bail hearing, explaining that it was because she hadn't remembered exactly what had happened. But she remembers it “now”, particularly when it is necessary to show that she would take her role as surety seriously. In any event, while this evidence shows that Pauline might call the police, it also demonstrates that Mr. Layne didn’t comply with Pauline’s directions and supervision when she was his surety in the past. Clearly, Pauline Layne had difficulty supervising Mr. Layne in the past. And then there is Pauline's evidence that she was a surety for Mr. Layne "two or three times". If Pauline cannot remember when she was a surety for Mr. Layne, it is difficult to accept that she took her role as a surety seriously?

c) Pauline said that her son had not been employed for more than a year and was surviving financially because her son had told her that he had loaned money to friends when he worked and who were now paying him back. Pauline simply accepted Mr. Layne's explanation. When questioned about how her son could afford jewelry and diamond grillz for his teeth, Pauline said that she had given him her mother's jewelry which he had melted down. I do not accept this evidence. Pauline appeared to be trying to help her son to get out of jail. She disregards entirely the evidence of drug transactions observed by the police. Pauline's evidence demonstrates she is likely to accept whatever her son tells her and to "cover up" for her son if necessary to get him out of jail;

d) When dealing with who drove the Mazda on July 5, 2017 in the neighbourhood where Mr. Forson was shot, Pauline was not prepared to say it was not her. Pauline always left room that it could have been her driving in that area that day. She was evasive. Again, an effort to help her son;

e) Pauline's evidence suggested she did not know or want to know the entire history of Mr. Layne and his prior involvement with the law; and

f) from Everol's evidence, it is clear that Pauline does not share much or certainly negative information about their son to Everol.

53While Pauline is a caring mother, her only goal is to get her son out of jail and is prepared to say or not say whatever it would take to achieve this goal. In my view, Pauline is not a suitable surety to supervise Mr. Layne's if released on bail.

Everol Layne

54Everol is in no position to supervise Mr. Layne. The concerns regarding Everol's suitability as a surety include:

a) Mr. Layne has not complied with Everol's rules or directions in the past, even in Everol's own home. Everol described calling the police several times in the past because Mr. Layne and his friends would not stop smoking marijuana at his home. While this may show Everol would call the police should Mr. Layne disobey a court condition, it also shows that Everol has very little, if any, control over his son's actions. Eventually, Everol simply gave up with his son;

b) Everol initially described not being at Mr. Layne's bail hearing because he had a "prior appointment" in New Brunswick. Eventually, Everol admitted he was away fishing. Why? Because, Everol had to "think hard" about whether he wanted to be a surety for his son. Has Everol spoken to his son since the bail hearing? No. Why come forward now? Everol says there may be room for change and to build a relationship. Yet, he has no basis to say that Mr. Layne will now change or now obey Everol's directions and supervision;

c) Everol has had no relationship with Mr. Layne for about 4 years and has literally not spoken to Mr. Layne on any substantive topic in the last year. Everol had not ever seen the diamond grillz on Mr. Layne's teeth. That is the extent of their non-relationship. It is clear that, in the past, Everol simply gave up on his son. Everol just gave him "space" at home. Why did Everol give up on his son in the past year? He said his son stayed up late, left lights on and had to always be on his case. The stakes and importance of complying with judicial interim release conditions are much more important than staying up late or leaving lights on;

d) Everol admitted that he did not know much about Mr. Layne's criminal past - and what he does know was learned in the last few months after his son's arrest;

e) Everol did not know and was not concerned about Mr. Layne's YouTube videos showing him brandishing guns and drug production. His wife did not tell him about these;

f) Everol knows practically nothing about his son's current friends or person he hangs out with. This is no surprise given the non-relationship. Everol knew that one of his son's friends was shot but did not know who or when that happened. Everol did not ask and did not believe he should be concerned about it;

g) Everol has not seen his son since he was arrested. Why? Because there is "no real relationship there".

h) Everol simply did not care about any information regarding his son's past. For him, his motivation for coming forward, at its best was - give his son a chance to change; and

i) And there is the gunshot residue. Everol has more than 9 firearms at home. They are now at a friend's home. Everol is aware that gunshot residue was found in his wife's car, the black SUV Mazda. Everol agreed that on possible explanation is that the gunshot residue might have come from his cleaning his guns in the middle of June, getting on his clothes and transference when he moved his wife's car in their driveway. His evidence on this point was not convincing and appeared to be nothing more than him trying to help his son.

55To suggest that Everol would be a suitable surety to supervise Mr. Layne is simply not believable and I find him not to be an acceptable surety.

Mr. Layne's Prior Involvement with the police

56Mr. Layne is 25 years old.

57Mr. Layne was found guilty in 2007 (robbery - Youth Court); 2010 (for possession - conditional discharge); and 2015 (weapons - diversion program).

ANALYSIS

58This is a reverse onus situation.

59I agree that an accused may be released even where the crime is very serious such as attempted murder. Whether an accused should be released will depend on the proposed plan of release and the factors described in s. 520 as explained by the Supreme Court in St. Cloud and other legal authorities.

60On its face, this is a strict plan of release. But, for the reasons set out below, the proposed plan of release is woefully deficient in the circumstances of this case.

Secondary Ground

61Remove the suitability of the two proposed sureties for the reasons described above and the proposed plan of release is woefully deficient to satisfy this court that there is not a substantial likelihood he would commit another offence if released.

62It is important to note that the police observed Mr. Layne conduct several hand to hand drug transactions. If he truly is involved in the drug trade and a gang, as suggested by this evidence and YouTube videos, house arrest would be an impediment but would not prevent Mr. Layne's continued involvement in the drug trade or gang in some manner.

63As set out in many authorities, electronic monitoring is but one factor in the proposed plan of release for this court to consider.

64Electronic monitoring is a deterrent, even a strong deterrent, because the accused will know that he will be discovered to have breached his condition(s) and there will be proof. However, electronic monitoring is not a replacement for suitable sureties who give direction to and have a direct supervision of the accused. See R. v. Bajwa, 2014 ONSC 1128.

65Without suitable sureties, the proposed plan of release, even with electronic monitoring, does not persuade this court that there is not a substantial likelihood Mr. Layne would commit an offence if released.

66The Defence has not satisfied its onus on this ground.

Tertiary Ground

67The charge is very serious. The Crown's case is overwhelming.

a) There is the identification evidence of Mr. Forson. The Defence points to Mr. Forson's photo lineup identification and the usual unreliability of identification evidence (particularly for a stranger identification) as being problematic to the Crown's case. I do not accept this submission. Mr. Forson gave a description of Mr. Layne which was detailed and consistent with the description of Mr. Layne. Second, the description of Mr. Layne's diamond grillz and tattoos are unique and also consistent with Mr. Layne. Lastly, Mr. Forson's identification evidence does not stand alone. There is other confirmatory evidence of Mr. Layne's identity as the shooter;

b) There is the connection between Mr. Layne's cell phone and the cell phone evidence that it was in the area of both the Wendy's and the shooting at those times. The Defence relies on the unreliability of cell phone location evidence. Again, by itself, this evidence would not make the Crown's case overwhelming. It is some confirmatory evidence that Mr. Layne was the shooter. It is an unlikely coincidence that this piece of evidence also points to Mr. Layne as the shooter;

c) There is the gunshot residue. Could it be explained by transference? Maybe, but it is confirmatory to the other evidence pointing to Mr. Layne as the shooter. It is also an unlikely coincidence that there is gunshot residue in a black SUV Mazda driven by Mr. Layne the day before and identified at the shooting to have gunshot residue;

d) There is the two similar black vehicles - one at Wendy's and one at the shooting. The one at Wendy's belongs to Pauline Layne and is used regularly by Mr. Layne. And the black vehicle was seen moments before passing by Mr. Forson's girlfriend's home. This is a highly unlikely coincidence;

e) There is Mr. Layne's attempt to modify a starter pistol so that it could be used to fire a projectile - a homemade firearm; and

f) There are videos which show Mr. Forson holding a firearm - possibly real or a replica.

68The cumulative effect of all the evidence is that this is a very strong Crown's case.

69If convicted, Mr. Layne will attract a very lengthy sentence.

70The gravity of the offence alleged is at the highest.

71The circumstances of the offence are terrifying to society. Because of a joke (even an inappropriate joke) at a Wendy's restaurant, Mr. Layne is alleged to have pursued and shot to kill a stranger in broad daylight in a residential neighbourhood.

72A firearm was used pointed and discharged at another person's head. An intention to kill is not an issue.

73The circumstances of Mr. Layne are very troubling. He has prior drug and firearm findings of guilt. The evidence of his possible connections with a gang, guns and drug sales, are all indicative of an individual who is involved in the most serious end of the criminal lifestyle.

74Lastly, it is clear that there is a concern for Mr. Forson's safety. He has expressed this concern on a number of occasions. It is real. There is merit to his concerns. Mr. Forson is vulnerable, particularly given Mr. Layne's possible gang connection.

75I am satisfied that, notwithstanding the presumption of innocence, whether this was a reverse onus or not, and balancing the above factors, detention is necessary to maintain confidence in the administration of justice.

76I need only repeat the words of the Supreme Court in St. Cloud, which are applicable to this case:

88In 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, pre-trial detention will usually be ordered.

CONCLUSION

77The detention review application is dismissed.

Ricchetti, J.