COURT FILE NO.: CR-19-BR-3-157 DATE: 20190930
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
ALEXANDER LIBURD Defendant/Applicant
Counsel: Simon Heeney, for the Crown Michael Webster, for the Defendant/Applicant
HEARD: September 27, 2019, at Toronto, Ontario
Before: Michael G. Quigley J.
Reasons For Ruling
Re: Section 522 Application for Judicial Interim Release
[1] Alexander Liburd is charged, along with two co-accused, in conspiracy to commit murder and the attempted murder of Eid Hassan and a second person, now unknown.
[2] On this application under section 522 of the Criminal Code, Mr. Liburd asks the Court to grant him judicial interim release pending his trial. Normally, an accused person is required to be released pending their trial unless the Crown shows that their detention in custody is justified. This being a reverse onus case. It is the defence who must persuade the Court that the continued detention of Mr. Liburd is not justified.
[3] In the result, I find the Applicant’s continued detention to be necessary and justified in the interests of public safety, on both the secondary and tertiary grounds. I advised counsel of that conclusion and of my reasons at the end of the hearing but promised short but formal reasons for denying the application.
Crown Theory of the Case
[4] The Crown’s case associates the three co-accused together in the building at 31 Gilden Road in Scarborough, driving and being together in a Mazda vehicle, and having a verbal altercation with the occupants of a taxi sitting outside that building. The occupants of the taxi, beside the driver, were the two victims, Eid Hassan and the unknown person The taxi driver’s evidence is that it was a threatening back and forth exchange between two of the three co-accused and the occupants of the taxi. This accused follows from behind. The taxi drivers evidence will be that the verbal altercation included liberal use of the “N” word, with the co-accused challenging the taxi occupants, allegedly for being in their area. The two co-accused then get into the Mazda and drive out of the parking lot and then east on Gilden. Mr. Liburd does not get into the vehicle at that time, but instead walks along a walkway on the eastern side of the parking lot, along the fence, south toward Gilden Road.
[5] The next critical bit of footage is taken from a distance a camera mounted on the south end of the building at 31 Gilden, but facing north towards the entry to the underground parking and into a poorly lit area beyond that. Timewise, that footage partially overlaps the previous footage from the parking lot camera that showed Mr. Liburd walking south on that walkway. However, while a person can be seen walking south toward Gilden in that next segment from that different camera, seemingly on the same or an extension of the parking lot walkway, the image is not clear and that person cannot be identified directly from the footage.
[6] What can be seen, however, is that after exiting the parking lot and turning east, the eastbound Mazda pulls over at what appears to be the point where that walkway would meet the sidewalk, but in the westbound lane of Gilden, This causes another vehicle going west on Gilden to have to veer around the Mazda to avoid a collision. The Mazda vehicle stops momentarily. The brake lights are on. No one can be seen actually getting into the rear seat of the Mazda, but the vehicle was stopped long enough to allow a person standing nearby to get into the vehicle. It then speeds away toward Midland Avenue, back in the eastbound lane.
[7] At Midland, the Mazda turns right, goes a short distance and then pulls a U-turn. It heads back toward the building at 31 Gilden, but does not turn in to the driveway it had exited from moments before. Instead, it passes the driveway on the Gilden side of the building and continues on further west, then north, and then comes eastbound into the northern driveway leading to the building. The Mazda continues east bound through the north side parking lot and comes around the northeast corner of the building at 31 Gilden, into the main east side parking lot.
[8] The taxi was still parked outside the front door of the building. After turning the corner, the Mazda passed the taxi on the driver side and then suddenly veers right to block in the taxi and prevent it from leaving. Three individuals quickly exit the Mazda vehicle, two close to the taxi and one serving as backup, and they fire a number of shots at the persons in the taxi. All three of the occupants of the Mazda were in possession of firearms and shot at the taxi.
[9] Obviously fearing for his life, the taxi driver hits the accelerator and quickly surges forward, plows the Mazda out of its way, loosing several pieces of bumper left behind on the surface of the parking lot as his vehicle flees the scene. One of the shooters fires another shot at the taxi as it flees. The taxi drives quickly towards Gilden, and then turns left and races towards Midland, almost getting hit by a westbound car in the process. The three shooters quickly get back into the Mazda and they give pursuit, racing after the taxi, obviously trying to catch up to it to finish the job they started. But the taxi turns left at Midland and heads directly to TPS 41 Division, the local police division, located minutes away at 2222 Eglinton Ave. East. The Mazda cannot turn quickly enough to follow it, because of other traffic. Eventually the Mazda turns right and then disappears.
[10] Just before arriving at 41 Division, one of the taxi passenger victims jumps out at a stoplight and runs away. He has been designated as victim “John Doe.” The taxi driver drives the victim to 41 Division, and the victim Mr. Hassan, goes in the front door and collapses on the floor. He was later treated at Sunnybrook Hospital. The bullet that hit him in the back lodged a half-inch from his heart. Any closer and the charges would have been first-degree murder, rather than conspiracy to commit murder, attempted murder and aggravated assault.
[11] The entire incident, the time leading up to it with the three co-accused clearly identifiable together inside the Gilden Road building, the altercation with the taxi occupants, the driving around and the execution style assassination attempt, is all captured on video surveillance camera footage, apart from a 35-50 second interval just before the shooting.
[12] More importantly to this application, however, there is also that one-minute segment of the video footage that defence counsel says, correctly, is unclear. It is the segment where a person is walking towards Gilden, and where the Mazda pulls over to the curb, seemingly to pick someone up. The lack of clarity of that one minute lies at the core of defence counsel’s contention that the Crown’s case is weak as against this applicant, regardless of its strength against his co-accused. On the basis of that alleged weakness, and his assertion that there is not enough evidence to be certain that Mr. Liburd was a participant in the shooting, defence counsel says the Crown’s case cannot permit the applicant to continue to be detained.
Applicable Principles and Analysis
[13] An application for judicial interim release like this one brought under s. 522 of the Code, is determined by reference to the primary, secondary and tertiary grounds criteria, set out in ss. 515(10).
[14] The primary ground in s. 515(10)(a) calls for an accused to be detained in custody pending his trial where necessary to ensure he will be in attendance in court for his trial. It addresses “flight risk”, the risk of the accused vanishing into the ether, so to speak, if he is released from custody.
[15] Counsel for the Applicant claims that there would be no risk under the primary ground, were the applicant to be released on bail. That may be true, but I would note, as Crown counsel did, that the notes of P.C. Chris Priebe, TPS 41 Division, related to Mr. Liburd’s apprehension and arrest does raise at least a risk of flight. A warrant was obtained for Mr. Liburd’s arrest at 7 Connaught Avenue. It was executed by the Emergency Task Force. However, Mr. Liburd fled the apartment and went up onto the roof before he could be apprehended. He evidently lay in the snow on that cold December night for 45 minutes before surrendering to the ETF officers, being arrested and charged with attempted murder, and being read his rights to counsel.
[16] The secondary will require the continued detention of the accused if necessary for the protection or safety of the public, having regard to all of the circumstances, including any substantial likelihood that the accused will commit a criminal offence or interfere with the administration of justice if released from custody. It requires an analysis of whether detention is warranted and necessary “for the protection or safety of the public, including any victim of or witness to the offence.”
[17] The proposal here is that the accused be released into the suretyship of his father, Mr. Kelwyn Liburd, who attended in court and would post $25,000 bail. Although counsel made no real submissions about the secondary ground, the supervision plan being proposed would have required the Applicant to live with his father and mother and be bound by a strict house arrest.
[18] However, in my view the reliability of that plan is not enhanced by the accused’s prior criminal record. It is extensive, going back ten years to 2009. It consists of two assaults, one aggravated, six convictions for trafficking, or possession for the purpose of trafficking, dangerous operation of a motor vehicle, possession of proceeds of crime under $5,000, and most importantly in this context, eleven fail to comply offences, including the breach of an earlier bail where his father acted as his surety, as is proposed again here.
[19] Apart from the tertiary ground reasons that compel his continued detention, as described below, I would not have acceded to the plan of release. The accused’s antecedents, combined with his record of fail to comply offences, including having breached a prior bail for the same surety makes it plain he cannot be trusted to comply with court orders. Further, despite my understanding and respect for a father’s decision to put forward a very substantial amount of money as bail for his continuing recalcitrant son, I would not accept that surety because I would not want the father and mother to lose those substantial amounts of money. And I am certain they would, because their son, this accused, simply cannot be trusted.
[20] However, it really all comes down to the tertiary ground. A person will be kept in custody on the tertiary ground where detention is necessary in order 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 could be liable, on conviction, for a potentially lengthy term of imprisonment.
[21] Counsel for the Applicant concedes that the gravity of the offence and the potential for a lengthy term of imprisonment are made out. The offence is plainly very serious taking place in a public place where others may have been in the vicinity. It is plainly a targeted assassination attempt in front of a residential apartment building, even if the motive presently remains unknown or even speculative. It matters not. Further, convictions for conspiracy to commit murder, attempted murder and aggravated assault, all carry the possibility of very lengthy terms of imprisonment. It is also acknowledged, and plain from the direct evidence, that not one, but three firearms were used in the offence, one of which is allegedly used by this accused, and that must also weigh against the Applicant’s release.
[22] However, apart from these concessions, the core of his argument in support of release is the inadequacy of the evidence. He contends that the case is dependent upon the identity of the Applicant as one of the shooters with an absence of evidence to support that contention.
[23] Crown counsel contends that the Applicant’s detention is necessary on the tertiary ground, to maintain confidence in the administration of justice having regard to all of the circumstances of this particular offence. In the Crown’s submission, reasonable members of the community reasonably informed of the law and the facts of this case would be shocked if the Applicant were to be released pending his trial.
[24] In R. v. St-Cloud[^1], the Supreme Court sought to clarify the application of the tertiary ground. The Court made clear that the tertiary ground “is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused”. It is not to “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. The combined effect of the four circumstances listed in s. 515(10)(c) must be considered as a whole in order to determine whether continuing detention is justified. The perspective to be adopted is that of a reasonable person properly informed of the law, Charter values, and the circumstances of the particular case.
[25] Apart from my comments on the primary and secondary grounds, whether the applicant can succeed on this application for release depends principally on the strength of the Crown’s case. Looking at the first factor under the tertiary ground, the Court in St-Cloud held that a justice must consider the following considerations when assessing this factor:
...the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case.[^2]
[26] The Supreme Court cautioned, however, that when a justice is considering the quality of the evidence tendered by the prosecutor, the prosecutor is not required to prove beyond a reasonable that the accused committed the offence. It stated:
...the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing.[^3]
[27] The grounds for release set out in the application are as follows:
(i) that the continued detention of the applicant is not justified on any of the grounds set out in section 515 (10) of the Criminal Code, because the video evidence of identification of the applicant, as one of the individuals attempting to commit murder in this case, is suspect and cannot amount to proof beyond a reasonable doubt that the applicant was one of the shooters;
(ii) that that video evidence, provided as part of this application, suggests that the applicant was not one of the people who initially entered the Mazda vehicle, which soon pulled up by the stationary taxicab carrying the victims, and who then exited that Mazda vehicle, and then fired upon the taxicab and the people in it; and
(iii) that though it is possible, or conceivable, to submit the applicant did subsequently enter the vehicle before the shooting, that submission is conjectural and not based on adequate evidence.
[28] In this case, evidence of the involvement of the Applicant consists of both the extensive “direct” evidence provided by the video surveillance footage, which plainly constitutes the bulk of the evidence for the Crown, but also at least two elements of circumstantial evidence that may reasonably permit an inference of culpability to be drawn to this applicant. A case grounded in circumstantial evidence is not necessarily a weak case. The Crown contends it is more than sufficient to support a conviction. Defence counsel says it does not. In the result, it all comes down to the number and reasonability of the inferences that may be drawn.
[29] The Crown emphasizes that reasonable inferences may be drawn from the evidence, assessed logically and in light of human experience. He says those inferences can and ought to support the conclusion that the accused is the third of the shooters, and that there are no other persons who could have entered the vehicle or who were always inside the vehicle, and who became the third shooter on the defence theory that the applicant never gets back into the vehicle.
[30] Defence counsel suggested to me that on a judge alone trial, and experienced jurist would be unable to convict the appellant because of the uncertainty surrounding the Applicant initially not getting back into the Mazda and the alleged uncertainty that he ever does get back into that vehicle.
[31] First, as I reminded defence counsel, that is not the test. The Crown need not prove its case beyond a reasonable doubt at this stage, and I must exercise caution not to play the role of trial judge or jury. Indeed, as the test in Sheppard establishes, at this pre-trial stage where bail is sought before the preliminary inquiry has been held, the Crown is entitled to have the benefit of the reasonable inferences that favour it in determining whether the accused should be committed for trial. So too, the possibility of a trier of fact being unable to conclude that the only reasonable inference on the whole of the evidence is that it is not the applicant who gets back into the Mazda vehicle and who is thus the third shooter does not diminish the actual strength of the Crown’s case.
[32] When the available inferences are considered and weighed, I find that the Crown has a strong evidential case based upon the video surveillance, and even if it is possible that more than one inference could be drawn on this evidence relative the applicant’s involvement, and I make no comment on whether that the whole of the evidence does permit more than one reasonable inference to be drawn, again, that is not the test.
[33] I find that the most logical likely inference from the evidence of the applicant walking along the fence and towards Gilden is that he does continue and does get into the Mazda. That is the most reasonable inference based upon the association of the co-accused preceding that time, the fact that they appear to start out as three, and that there end out being three shooters. The Mazda crosses into oncoming traffic to stop at the north curb. It is only reasonable to conclude it does so because the occupants know the person they are stopping for. Based on the video footage from the prior camera taken less than a minute before, that appears to most logically be the applicant, because there is no evidence of any other person being in the vicinity, and the logical extension of him walking south along the fence, is that he continues to do so until he arrives at the north side of Gilden.
[34] Defence counsel suggested there could reasonably have been a fourth person in the Mazda throughout the time period, even though I can find no evidence to permit it to be advanced as a theory. If that were true, that person would have to have sat quietly in the vehicle for about 45 minutes on a cold December night without revealing himself, stayed in the vehicle while the other three were in the building. It is entirely speculative.
[35] The defence theory was that the Applicant walks to the curb on Gilden, but then disassociates himself, and does not get into the vehicle. To my observation, considering the whole of the evidence, there is simply no evidence whatsoever that permits that inference to reasonably be drawn. But if that was correct, given the absence of evidence to suggest a fourth person, if this Applicant had decided to disassociate himself from the shooting that was about to take place, then there would have been only two shooters, not three. The more reasonable and logical conclusion and inference is that after walking south to the north side of Gilden, it is indeed the Applicant who gets back into the Mazda, and that it is indeed the Applicant who is the third shooter.
[36] The Justice of the Peace may disagree and decide not to commit this accused to trial. A jury may disagree when the matter gets to trial. The point is those are not the tests now. Given my view that the Crown has a very strong case based on direct evidence and a relatively strong circumstantial case that the third person, the third shooter, is this accused, it follows that I find all four factors under the tertiary ground to be satisfied and to require the continuing detention of the applicant.
[37] I acknowledge that the four factors enumerated in St. Cloud are not exhaustive, but merely four factors the Court must consider in its analysis. Additional factors may be considered. In my view, they are more than adequate to properly cause the court to dismiss this application.
[38] In my view, other helpful guidance on the tertiary ground can be found in R. v. Blind[^4], where the Saskatchewan Court of Appeal wrote that the test under subsection 515(10)(c) contemplates circumstances where “the sensibilities of the community are so affected that to have the person free in the community, notwithstanding the presumption of innocence, could lead to real harm to the administration of justice”, or indeed to the defendant himself. With the extent of the random handgun based violence currently being experienced in this city, I have no doubt that the sensibilities of the community would be outraged were this accused to be released, particularly bearing in mind his historic failure to respect court orders.
[39] In the result, I have concluded that this Applicant cannot be released at this time. I am satisfied that detention is necessary in order to maintain confidence in the administration of justice having regard to all the circumstances. The Applicant is to be detained in custody pending the outcome of his Preliminary Inquiry scheduled with his co-accused for four days in January 2020. Should he choose to do so, he may apply again for release as soon as the outcome of that proceeding is known.
Michael G. Quigley J.
Released: September 30, 2019
COURT FILE NO.: CR-19-BR-3-157 DATE: 20190930
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and –
ALEXANDER LIBURD Defendant/Applicant
REASONS FOR RULING Re: Section 522 Application for Judicial Interim Release
Michael G. Quigley J.
Released: September 30, 2019
[^1]: R. v. St-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27 at para. 87. [^2]: Ibid. [^3]: Ibid, at para 58. [^4]: (1999), 1999 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.).