Court File and Parties
COURT FILE NO.: CR-19-09 DATE: 2019/03/18 ONTARIO SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 517 OF THE CRIMINAL CODE OF CANADA BY ORDER OF MADAM JUSTICE LAFRANCE-CARDINAL DATED MARCH 8, 2019
BETWEEN: HER MAJESTY THE QUEEN – and – Kaitlyn Gougoula
Counsel: Jason Pilon, Counsel for the Crown Paul Lewandowski, Counsel for the accused
HEARD: March 8 and March 13, 2019
Reasons for Decision
LAFRANCE-CARDINAL, J.
[1] Kaitlyn Gougoula was charged on January 7, 2019 with 5 counts under the Criminal Code (C.C.) pertaining to the complainant Shawn Theobald-Lewertoff and 3 counts under the Youth Criminal Justice Act. She is facing:
a. one count of conspiracy to commit murder under s. 465(1)(a) of the C.C. b. with intent to commit the offence of extortion, did attempt to render the complainant insensible by choking, under s. 246(a) of the C.C. c. did wound the complainant committing an aggravated assault under s. 268 of the C.C. d. did commit an assault with a weapon against the complainant under s. 267(a) of the C.C. e. did confine the complainant under s. 279(2) of the C.C. f. did while bound by a probation order given by Justice Kinsella on March 14, 2018, did fail to keep the peace and be of good behaviour, contrary to s. 137 of the Youth Criminal Justice Act. g. did while bound by a probation order given by Justice Kinsella on January 31, 2018 did fail to keep the peace and be of good behaviour, contrary to s. 137 of the Youth Criminal Justice Act. h. did while bound by a probation order given by Justice Kinsella on January 31, 2018 did fail to comply to not possess any weapons or anything used to cause death or injury or to threaten or intimidate any person, contrary to s. 137 of the Youth Criminal Justice Act.
[2] Ms. Gougoula brings this application for judicial interim release under s. 522 of the Criminal Code.
[3] At the beginning of the proceedings, a ban of publication was agreed to and ordered under s. 517 of the Criminal Code.
The Evidence Tendered by the Crown
[4] On January 7, 2019, a call was received by Cornwall Police by Shawna Chartrand to report that a male was being held at 314 Guy Street in the upper unit at the back of the property. She described seeing a person duct-taped and hog-tied, beaten with a pipe as well as burned and cut with knives.
[5] Police attended. Jordan Thompson, a co-accused, answered the door, police requested to enter to ensure the safety of the persons in the apartment. The door moved slightly and police could see a male sit up from the lying position. He had duct tape around his head and face, covering all of his face except for his nostrils, he was bleeding heavily around the head. His hands, arms and legs were also duct-taped. Police entered and Mr. Thompson was detained at gun point. Seven individuals were found in the apartment, nine were charged. Following the investigation, five were charged and the others saw their charges stayed.
[6] When Mr. Thompson was arrested, two knives were found on his person, both had blood that was visible on the tip of the knife, the SOG 2 ½ inch blade not only had blood but also visible burn marks.
[7] Shawna Chartrand describes the scene on Guy Street where she attended to buy drugs. She was there for approximately five minutes. The place was a mess, there was a man duct-taped in the corner of the kitchen under the window and he was bleeding. Kaitlyn was using a blow torch, torching the knife first and then burning him or cutting him on his leg or arm. She describes the complainant as being very quiet. The only time he would say something is when he was being beaten up. The co-accused Thompson poured mustard on his cuts. She witnessed the co-accused Thompson kick the complainant in the head, choke him out, at one point he was using a thin piece of metal to continue the assault. This witness was able to leave the scene on the pretense that she was going to get money to pay for her drugs as she was threatened that the same thing would happen to her if she failed to pay her drug debts.
[8] The complainant, Shawn Theobald-Lewertoff gave two statements to police trying to recount what happened on the evening of January 7, 2019 at 314 Guy Street Cornwall. One statement was given at the hospital the same night he was tortured. The second statement was taken on January 10, 2019 at the police station upon his release from the hospital. His testimony would be that he was looking for cannabis and Jordan Thompson called him and advised him that he had some. On Guy Street, he was met by the co-accused Thompson. When he entered the apartment, Kaitlyn jumped out, confronted him about stealing her gold ring and accused him of being a police informant for the police in Montreal. She would have closed the door to the apartment shut, preventing him from leaving.
[9] He indicates that Kaitlyn is the one that tied his hands with duct tape, he tried to untie himself and the co-accused Thompson assisted Kaitlyn in taping him. He had duct tape all over his head including his eyes and mouth, he was able to breathe through his nostrils. Kaitlyn took his pants off, they took his shoes off, took his hat and his book bag.
[10] Before they covered his eyes, someone showed him a dirty needle with a little bit of blood and liquid in it. They poked him with that needle on the bottom of his feet and his thighs. Through the tape shifting, he was able to see Kaitlyn poke him with the needle and cut him with the knife. He was hit over the head with a glass bottle, a bottle of Captain Morgan that shattered. If he moved too much Kaitlyn would kick him in the head, the ribs or the back.
[11] During this torture, Kaitlyn was talking about making calls to the Irish in Montreal for them to come pick him up. She wanted to do it right, she wanted to collect on the bounty. She video-chatted with a guy named Tony Santana during the middle of the ordeal, he was encouraging them to continue hitting him over the head, accusing him of being a rat, telling the accused that they couldn’t let him go as he would rat them out. Tony was trying to get a ride, but never made it.
[12] The complainant had the firm belief that he was going to die. They were planning his death, planning on how and where they were going to dispose of his body.
The Summary of the Identification Evidence
[13] The investigation is still ongoing, the forensic evidence is still being pieced together. The preliminary findings have Kaitlyn’s fingerprints on the handle of the knife which she allegedly used to torch the blade of the knife and then proceeded to burn and cut the complainant.
Injuries of the Complainant
[14] The photographs of the injuries taken at the hospital and during the second interview at the police station show a countless number of burns, cuts, stab wounds, puncture marks all over his body. The burn marks seem to be concentrated on his lower legs. There are lacerations over the head, where the bottle was shattered. There is a gash between his eyes consistent with being hit with a metal rod. There are cuts at the bottom of his back caused by either being cut or laying over broken glass. There are cuts on his hands as a consequence of being slashed with the knife when he was trying to untie himself. There are many puncture marks on his body and on the sole of his feet consistent with being stabbed by a needle.
[15] Of course, there are the psychological injuries that cannot be discounted or measured at this time.
The Circumstances of the Accused
[16] Kaitlyn is a young adult who goes by the surname of Lauzon or Gougoula, one being her father’s surname, the other belonging to her mother. She was born on September 16, 1999. She is presently 19 years of age.
[17] She has not completed her high school. She is 7 or 8 credits short of obtaining her diploma. She dreams of being a cook or baker or working with children. She has a lot of potential but she is haunted by too many demons to even attempt to realize any of her dreams. She has been diagnosed with a borderline personality disorder, her moods fluctuate and she attaches to people easily. She was medicated for this disorder, however she tried to commit suicide by ingesting all of the pills. Once she wanted to take them again, she no longer had a prescription and has only been re-medicated since she is in custody.
[18] She suffers from low self-esteem which makes her gravitate to questionable friends, most that are more broken than her, in order to make herself appear better. She admits that she rarely thinks of the consequences of her actions, she just does it. This is confirmed by Lynne White, her youth probation officer in her last pre-sentence report dated January 29, 2018 when Kaitlyn was 18. She states:
“Kaitlyn has been counselled numerous times on the effect her impulsive risky behaviour will have on her current and future life. She does not appear to think about the consequences her behaviour has on her mother and her young sibling. Kaitlyn openly admits to not being afraid of anyone or anything, which certainly is a cause for concern.”
[19] Her principal at St. Matthew and her probation officer both confirm that she has leadership qualities. Unfortunately, she has been demonstrating her leadership skills in pursuing a life of crime.
[20] Kaitlyn has many demons which she subdues with drugs. In her first pre-sentence report in March of 2017 when Kaitlyn was 17, she admits that she uses speed, ecstasy, MDHD, cannabis, Xanax, cocaine and alcohol. During this bail hearing, she admits that she is still an addict, her drug of choice is crack cocaine. She has not yet graduated to needles, but she admits she is always looking for a better high.
[21] Kaitlyn has turned to prostitution in order to finance her addictions. She has had 4 pimps, too many John’s to count, a pregnancy that was aborted. She states that she drugs herself until she does not care and then she is able to work as an escort. She has a new boyfriend that has attended all of these court proceedings. She started going out with him on the day of these offences. She does not know the extent of his criminal record, but she knows he has one related to drugs. She learned during the court proceedings that he was also convicted of weapon offences. She thinks he is a good influence.
[22] Kaitlyn has a youth record and an adult criminal record. There are three sets of convictions but six offence dates. For the first set of charges at the age of 17, she was sentenced to 3 months deferred custody and supervision with probation. Such a serious sentence for a first youth offender is rare. There are 8 fail to comply and 3 assault convictions, she has breached every time she has been released. The violence just escalates.
[23] What is clear is that Kaitlyn demonstrates the following traits:
a) she has leadership skills, she has a sense of humour, she is very caring of her little brother, about her family, she hates to disappoint. All of these traits are exhibited when she is not on drugs; b) she is very impulsive, she does not think of consequences or of repercussions, she does things and she cannot explain why; c) she has a serious, serious addiction to hard drugs. When she is released from serving a sentence she can do well for a short period of time but the lure of the drugs is too strong. She relapses. She breaches. She absconds. Her youth probation officer had organized a 6-month rehab program in an in-house facility in Kitchener. It was supposed to commence in December 2018, but Kaitlyn asked to go only in January 2019 so she could see her little brother open his Christmas gifts. Meanwhile, she was using hard drugs every day until the offence before us which was committed on January 7th, 2019. What is sad is that Kaitlyn’s life could have unraveled quite differently had she decided to go to rehab in December rather than wait for the new year. d) she is a very angry young woman, she cannot manage that anger. It does not take much for her to lose control, a Facebook posting, name calling, postering, she gets angry and she hurts people. The violence is escalating. e) She always commits her crimes when there is an audience. She performs for the audience. It is a component of her leadership skills, as she testified. “People join me. I am not joining them” f) She gets bored when she has too much time on her hands. She gets bored with her pro-social friends, she cannot maintain those friendships.
Proposed Plan
[24] The proposed plan is for Kaitlyn to reside with her paternal grandparents, Mr. and Mrs. Lauzon under full house arrest while wearing an ankle bracelet. She would be allowed in the community if she was accompanied at all times by one of her grandparents.
[25] Mr. and Mrs. Lauzon are good people. Kind and caring individuals who want to do what is best for their beloved granddaughter. They built their home in 2005, they built a bedroom just for her. She would visit 2-3 times a week when she was young and much less as time went by. Her bedroom has always been there and is still there. Their home has always been open to her. They are each offering a bond of $4,000. They are retired, they own their home.
[26] There is no doubt that it was a shock for them to hear about their granddaughter’s convictions, her prostitution, her extensive drug use, the very serious charges she is facing. There were many tears and many gasps, but as Kaitlyn explained it herself, she always tried to hide her lifestyle from her parents and her grandparents, but somehow her mother was the one who would catch on as to what was really happening.
[27] I will deal with the electronic monitoring in my analysis under the tertiary grounds.
Analysis
[28] Section 515(10) of the Criminal Code governs the law with regards to judicial interim release. In this case, as Kaitlyn is facing charges of conspiracy to commit murder, it is a reverse onus. Pursuant to section 522(2), it is for Ms. Gougoula to satisfy the Court that her detention is not necessary under the primary, secondary and tertiary grounds contemplated in section 515(10).
[29] The Crown concedes that the primary grounds are not an issue in this case, they are satisfied that Ms. Gougoula’s detention is not necessary to ensure her attendance in court. They argue that Ms. Gougoula has failed to meet the onus both on the secondary and tertiary grounds.
[30] The secondary grounds are covered in section 515(10)(b) of the Criminal Code and they read:
“where the detention is necessary for the protection or safety of the public, including any victim or witness to the offence, 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…”
[31] Justice Durno in the decision of R. v. Purewal states at paragraph 35:
35 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 risk" 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.
[32] It therefore becomes crucial to examine the plan proposed including the supervision proposed.
[33] It is conceded by defence counsel that the plan being proposed is at the very top of the rung, at the very top of the ladder (R. v. Antic, 2017 SCC 27).
[34] The sureties proposed are good people. They have good intentions, they love her dearly, but they will not be able to control their granddaughter. They have been there for her throughout her young life. They have consistently offered her a safe haven, her own room, stability. Ms. Gougoula has chosen otherwise. She has chosen a lifestyle that she was able to hide from her grandparents. Her own mother was unable to control her, she had to breach her on two occasions. Her own mother has been unable to prevent her from absconding. Her own father has been criminally charged for trying to stop her from escaping from her bedroom window.
[35] I can surmise that there will be a honeymoon period where things will go according to the plan, but I know that it will be short lived. In R. v. Rondeau 108 C.C.C. (3d) 479 and 480, the Quebec Court of Appeal states that we not only look at the accused’s past, we must also look at the accused’s behaviour at the time of the commission of the offence. It further states:
It appears to me that the more serious the crime, the more the perpetrator’s participation is characterized by planning and the commission of the most violent acts, the greater the risk for society. The more a crime like the present is unexplained and unexplainable, the more worrisome bail becomes for society. This, with all due respect for the contrary opinion, is my view of the present matter.
[36] The crime that Ms. Gougoula has allegedly committed can only be defined as extreme viciousness, a torture that was violent, repetitious, that lasted for 4 hours with a variety of weapons. It was not spontaneous.
[37] It is also said that the best way to predict the future is to look at the past. Ms. Gougoula’s past shows that she will be bored, that the addiction to hard drugs will lure her back, that her impulsivity will get the best of her. The past indicates that she will act impulsively, she will act without thinking of the consequences or the repercussions.
[38] Ms. Gougoula’s criminal record and the charges she is facing indicates she will dispense her own justice whether it is for a slur on Facebook, rumours of her lifestyle, someone sleeping with her boyfriend, someone throwing a cup of water, someone allegedly being a rat.
[39] Her past will be her future until she obtains the counselling and the tools she so desperately needs. I therefore conclude that her detention is necessary for the protection or safety of the public and dare I say for her own protection and safety. I believe that there is a substantial likelihood that if she is released she will commit another crime and/or interfere with the administration of justice.
[40] The accused has not met her onus on the secondary grounds.
Tertiary Grounds
[41] The tertiary grounds are defined in s. 515(10)(c). It states:
(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 prosecutor’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.
[42] The tertiary ground is not often invoked. It is a separate and distinct basis for bail denial that is sparingly used. The four factors found in s. 515(10)(c) must be analyzed together not separately, it is the combined effect that makes the bail detention necessary.
Factor 1 – Strength of the Crown’s case
[43] The Crown has a very strong case. There is an independent person Shawna Chartrand who can confirm Ms. Gougoula’s presence on Guy Street. She was present for some 5 minutes and witnessed that the complainant had been duct-taped from “head to toe”, she witnessed Ms. Gougoula using a blow torch, torching the knife and cutting the complainant. She saw her cut him or burn him on his legs or hands. Other than the complainant and Ms. Chartrand, there are two other individuals who were present during the ordeal and who witnessed some of the events of that day. In her statement, Ms. Gougoula admits that she was present, that she was doing drugs, crack and crystal meth, that she was sleeping. She does not remember anything about that afternoon. She woke up and the police were there, she thought they were being raided.
Factor 2 – The gravity of the offence
[44] A gentleman was duct-taped, his hands and feet were duct-taped. His head and face were duct-taped. His eyes and mouth were duct-taped. He was capable of breathing through his nose. He was burned with a torched knife, he was cut and slashed with a knife, a bottle was broken over his head, he was made to lay on broken glass and he was repeatedly stabbed with a dirty needle. He was hit with a metal rod. They poured mustard over his wounds. Mutilation for four hours while he was listening to plans on how they would dispose of his body. It was cruel, mindless, malevolent, deliberate violence on a person rendered vulnerable, someone rendered defenseless as he was tied, as he could not see, as he could not speak and whose only air passage was his nose.
Factor 3 – The circumstances surrounding the commission of the offence, including whether a firearm was used.
[45] No firearms were used, there were many weapons including knives, blow torch, bottle of liquor and a dirty needle.
[46] The circumstances surrounding the offence have been thoroughly explained save and except for the planning and deliberate nature of the offence. The complainant’s evidence is that he was invited by Mr. Thompson to attend Guy Street to purchase drugs.
[47] The text messages between Mr. Thompson and Ms. Gougoula confirm that there was some sort of a plan that had been concocted between the two co-accused.
“KK its all set up. Minute you get here Ill call him n hell come over.”
[48] There is also evidence that Ms. Gougoula thought the complainant was a rat that there was a bounty on his head and that she would be able to collect. It is alleged that Ms. Gougoula was on the phone trying get a co-accused living in Montreal to come and pick him up. There is discussion on how to get rid of the body.
[49] It is the theory of the Crown’s case that had Ms. Chartrand not attend the Guy Street residence when she did and had not called police when she did that Mr. Shawn Theobald-Lewertoff would have been murdered.
Factor 4 – The fact that the accused is liable on conviction, for a potentially lengthy term of imprisonment
[50] Ms. Gougoula after trial may very well be looking at a double digit federal jail sentence.
[51] Having regard to the totality of the evidence, the tertiary grounds are invoked. I am cognizant of the fact that I am denying Ms. Gougoula her liberty pending trial. I believe in the foundation of our judicial system that one is innocent until proven guilty. However, on these particular facts with this particular accused, informed members of the public having full knowledge of the evidence heard would be appalled that this young lady would be granted bail. Detention is necessary in order to maintain confidence in the administration of justice.
[52] Having determined that the accused must also be detained on the tertiary grounds, there is no need for me to consider electronic or ankle bracelet monitoring as it does nothing to address the tertiary grounds.
[53] Electronic monitoring deals with compliance with bail conditions. The bracelet cannot change the facts of the case or the circumstances of the accused. If the tertiary grounds are invoked, electronic monitoring becomes irrelevant as it does not in any way assist with the 4 factors found in s. 515(10)(c) (R. v. Fyfe, 2019 ONSC 548; R. v. Ma, 2015 ONSC 7709, [2015] O.J. 6684; R. v. Richardson, 2015 ONSC 704).
[54] The accused has failed to discharge her onus on both the secondary and tertiary grounds. Her application for release pending trial is denied.
The Honourable Madam Justice Lafrance-Cardinal