COURT FILE NO.: CR-19-60000226-00BR
DATE: 20191218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LEIGH SIMPSON
T. Kranjc, for the Crown
R. Achampong, for Mr. Simpson
HEARD: December 12, 2019
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT on 90 day review
[1] In April and May of 2019 two masked men with a firearm carried out a rash of nine robberies across Ajax, Whitby, and Scarborough. A third man drove a getaway car. The Crown alleges that Mr. Simpson was the getaway car driver. The Crown does not allege that Mr. Simpson was one of the masked men, or that he carried a firearm.
[2] Justice Downes in the Ontario Court of Justice detained Mr. Simpson on the secondary and tertiary grounds.
[3] Mr. Simpson now appears on a 90-day review pursuant to s. 525 of the Criminal Code. A 90-day review is generally to take place within 90 days of an accused being brought before a justice (or 30 days in the case of a summary conviction offence). I must determine whether Mr. Simpson’s continued detention is still required.
[4] Mr. Achimpong takes the position that the Crown’s case is not strong and has been undermined by new disclosure. He also proposes a new surety. He argues that Mr. Simpson’s detention is, therefore, no longer required.
[5] Respectfully, I must disagree. For the reasons that follow, Mr. Simpson will remain in custody.
THE CROWN’S ALLEGATIONS
[6] Mr. Simpson allegedly participated in 9 different robberies:
April 12, 2019: Circle K at 30 Dean Park Road, Toronto;
April 13, 2019: Circle K at 848 Brock Road, Whitby;
April 18, 2019: Circle K at 955 Westney Road, Ajax;
April 30, 2019: Pizza Nova, 20 Harwood Avenue South, Ajax;
May 1, 2019: Pizza Nova, 2201 Ellesmere Road, Toronto;
May 2, 2019: Pizza Nova, 123 Guildwood Parkway, Toronto;
May 3, 2019: Husky Gas, 800 Morningside Avenue, Toronto;
May 6, 2019: Pizza Hut, 3351 Lawrence Avenue East, Toronto;
May 7, 2019: Pizza Pizza, 1200 Roseland Road East, Whitby.
[7] In each case, two men wearing masks entered the location. One of the men carried a gun. The getaway car was a white Honda Civic. Mr. Simpson, it is alleged, drove the getaway car in each instance.
[8] The police identified the white Honda from the licence plate on a video taken at one of the robberies. They traced the licence plate to a car rental agency. Mr. Simpson had rented the white Honda in April and May 2019. Mr. Simpson had turned it into the rental agency. On May 12, Toronto Police officers executed a search warrant on the white Honda. The police recovered masks. The police also recovered plastic water bottles. One of the bottles generated a DNA “hit” from Mr. Simpson.
[9] On May 3, 2019 Mr. Simpson purchased bottles of water from a Petro-Canada at 3100 Ellesmere Road in Toronto. The store video plainly captured him buying the water bottles. In particular, Mr. Simpson has a distinctive tattoo on his hand. The tattoo can be seen on the video. That Petro-Canada location is less than a kilometer from a Husky store at 800 Morningside in Scarborough. That Husky store was robbed shortly after Mr. Simpson purchased the water bottles.
[10] I have reviewed the May 3, 2019 video. The video shows the following: a white Honda turns into a housing complex just off a strip mall. Two men get out from the passenger side of the car. They walk out of the housing complex parking lot and past the strip mall. They proceed out of sight. A few minutes later they run back to the Honda. One of the men gets into the rear driver’s side seat. He is carrying a brown bag. The other man gets into the front passenger seat. The car then proceeds out of sight.
[11] I have also reviewed the video of the robbery from the previous day, May 2, 2019. The video is of the inside of a different Husky gas station store. At 6:21 am the attendant is washing the floor. Two men then enter the store. One of them brandishes what appears to be a handgun. He gestures the attendant to open the cash register. One of the men is carrying a brown bag and fills it up with cigarettes and what appears to be cash. The men leave after about two minutes. The brown bag appears to be very similar to the brown bag one of the men carried on May 3, 2019.
[12] The police also obtained Mr. Simpson’s cell phone records. Mr. Simpson’s cell phone “pinged” off cell phone towers relatively close to the robbery locations, near the time of 5 or 6 of the robberies.
[13] On May 19, 2019 Mr. Simpson was in Windsor. He was with someone who matched the description of a suspect in a stabbing. That person ran away when the police approached and threw a firearm as he ran. Mr. Simpson gave a false name when the police spoke to him. The police arrested him. The police searched him. Mr. Simpson possessed 38 grams of crack cocaine, and 8 grams of fentanyl.
[14] For reasons that seem to me to be completely inexplicable given his record, and the fact that he was on probation, Mr. Simpson received bail on the Windsor charges. He returned to Toronto with his surety. His surety on that bail is Natasha Joseph.
[15] Ms. Joseph was also proposed as a surety at Mr. Simpson’s bail hearing in front of Justice Downes. Justice Downes found that Ms. Joseph was well-meaning but totally unsuitable as a surety.
[16] Accordingly, Mr. Achimpong proposed a different surety at this hearing. That surety is Mr. Simpson’s former girlfriend, Isra Mangosongo.
ISSUES AND ANALYSIS
[17] The law on a 90-day review has recently been clarified by the Supreme Court of Canada in R. v. Myers, 2019 SCC 18. A few words about the procedure in this court are necessary. I will deal with that first. Since the analysis is multi-factoral, I will then deal with Mr. Simpson’s background and the plan of release that has been presented. I will next deal with the strength of the Crown’s case. Finally, I will determine the over-arching question: whether the detention of Mr. Simpson is still required.
(a) What is the procedure on a 90-day review?
[18] In Myers the Supreme Court interpreted s. 525 of the Criminal Code. Where an accused person is charged with an indictable offence, and is being held in custody, a judge must review that detention within 90 days of:
An accused person being brought before a justice (s. 503 of the Criminal Code); or,
A successful Crown bail review (s. 521 of the Criminal Code); or,
The arrest of the accused while on interim release (s. 524 of the Criminal Code).
[19] The jailer is the person who makes an application to the court in order to set a date for the 90-day review: Criminal Code s. 525(1); Myers, at para. 37. The judge fixes a time and place for hearing: Criminal Code, s. 525(2); Myers at para. 39. Crown counsel and the accused are required to be present. The hearing ought not to be adjourned unless it is in the interests of justice: Myers, paras. 40-41.
[20] The 90-day review procedure applies even where an accused person has not had a bail hearing or consented to detention (for example, in a reverse onus situation): Myers, paras. 42-43. That makes sense based on the wording of the section. The Criminal Code requires that the clock starts ticking on a 90-day review when an accused person is brought before a justice: Criminal Code, s. 503. No particular outcome on a bail hearing or a bail review is required. The procedure is supposed to be automatic.
[21] As a judge on a 90-day review, I may accept such evidence as is credible and trustworthy in the circumstances. I may also make inquiries about the case, review transcripts and evidence, and take into account new evidence. As I read Myers, a judge on a 90-day review has a somewhat more active role than is typical in our criminal procedure. As a practical matter, the judge must satisfy himself or herself that the accused’s detention in custody is still required. The judge on a 90-day review may consider whether there has been unreasonable delay. Unreasonable delay is not, however, a pre-condition for a hearing: Myers at paras. 32-33. The analysis is multi-factoral.
[22] It is also important to set out what a 90-day review is not. It is not a bail review under s. 521 or s. 522 of the Criminal Code. My job on a 90-day review is not to consider whether Justice Downes made an error or his decision was unreasonable. I am required to respect the findings of fact made by Justice Downes if there is no cause to interfere with them. Mr. Achimpong conceded that Justice Downes made no factual or legal error. Indeed, Justice Downes’s reasons are thorough and unassailable. I can see no reason why I would not defer to his findings of fact.
[23] It is also not my job on a 90-day review to conduct a fresh bail hearing simply because 90 days has elapsed. It is a review of the detention itself: Myers, at para. 47.
[24] The natural question, then, is what is the difference between a 90-day review and a bail review under s. 520 of the Criminal Code? The most important difference is that an accused person is automatically entitled to a s. 525 review within 90 days. Unlike under a s. 520 or a s. 521 bail review, the accused or the Crown need not show that there has been a material change in circumstances, or that the justice erred in law, or that the decision was clearly inappropriate.
[25] The over-arching question on a 90-day review is whether the accused’s detention in custody is still required within the meaning of s. 515(10) of the Criminal Code. I must determine whether detention is necessary to ensure Mr. Simpson’s attendance in court; or whether it is necessary for the protection or safety of the public; or whether it is necessary to maintain public confidence in the administration of justice: R. v. St. Cloud, 2015 SCC 27.
(b) What Is Mr. Simpson’s background?
[26] Mr. Simpson’s criminal record is unenviable. It commences with youth convictions in 2004. His last conviction was in 2017. He was convicted of two counts of robbery and given a sentence of 588 days after credit for 312 days. He was also placed on probation for three years. Thus, he was on probation for robbery at the time he allegedly committed these robberies. In 2012 Mr. Simpson was convicted of possession of a loaded prohibited or restricted firearm. He received a three year sentence. He was also convicted of forcible confinement, possession of a firearm or ammunition contrary to a prohibition order, and possession of a firearm knowing that its possession was unauthorized. He has been convicted six times of fail to comply with a bail order or a disposition. He has been convicted four times of robbery or armed robbery (although twice as a youth, in fairness). There have been other convictions as well.
(c) What is the plan of release?
[27] Mr. Achimpong presented a plan for Mr. Simpson to be supervised by a residential surety, Ms. Isra Mangosongo. With respect, I reach the same conclusion about Ms. Mangosongo that Justice Downes reached about Ms. Joseph. I heard from Ms. Mangosongo. She claimed to have been in a relationship with Mr. Simpson for some ten years. She did not, it seems, get to know him very well. There were long absences during the relationship. Although the Crown made attempts to find out what Ms. Mangosongo knew about Mr. Simpson’s whereabouts, I must admit that I was confused about what she knew or didn’t know. Ms. Mangosongo provided few details of how she would manage Mr. Simpson on a day-to-day basis. She is on sick leave from her job at Money Mart. She may pursue self-employment in her home as a make-up artist. She may continue to work part-time at Money Mart. She herself has not decided what she should do. She has also, I say with respect, not thought through how she would supervise Mr. Simpson if she were to be working again at Money Mart – or what she would do if she were working out of her home.
[28] I do not think that Ms. Mangosongo was being deliberately evasive. I think she simply doesn’t know Mr. Simpson very well. She described their relationship as “on and off”. She just didn’t seem to understand that he had spent long stretches in jail, for very serious offences. I also think she is uncertain about where to go next with her career – which is not a criticism. It is, however, a fact that she is unsettled. That is not exactly the best environment for a man like Mr. Simpson, to put it mildly.
[29] I also find it troubling that Ms. Mangosongo was prepared to have Mr. Simpson reside with her and her two young children. I strongly suspect she did not realize that Mr. Simpson has been convicted in the past of robbery and firearms offences, and that he currently faces serious drug trafficking charges. She appears not to have processed the issues associated with having someone with Mr. Simpson’s background around young children. I do not wish to be taken as saying that someone with young children can never be a suitable surety. It is, however, important for a person with young children to understand the impact on him or her and the children so that they can make a properly informed decision. With great respect, Ms. Mangosongo simply hasn’t done that.
[30] I also find that Ms. Mangosongo did not have a realistic plan for supervising Mr. Simpson. Someone with Mr. Simpson’s background needs a virtual jailer if he is suitable for release (which, quite frankly, he is not). By virtual jailer I mean someone who has a powerful enough personality that he or she can be relied on to control Mr. Simpson and call the police if he is not controlled.
[31] Mr. Achimpong pointed out that Ms. Mangosongo’s education ended at high school (she attended college for a short time), that English is not her first language, and that she presents as someone relatively unsophisticated in the court system. None of those factors, he argues, should be disqualifying. I agree. She is also of limited means. I also agree with Mr. Achimpong that her limited financial means should not be disqualifying. Ms. Mangosongo, however well-meaning, is not a suitable surety because of any of those things. Many strong sureties are people of limited education and means and English. Ms. Mangosongo is not suitable because she simply does not give the impression of being able to supervise Mr. Simpson, a man with a history of breaching court orders and committing further crimes. She does not inspire confidence that she knows him well enough to supervise him or has a realistic plan for supervising him.
(d) What is the strength of the Crown’s case?
[32] Mr. Achimpong strenuously argued that the Crown’s case is weak. He made the same argument before Justice Downes. He argues that the disclosure since then has shown that the Crown’s case is even weaker. For example, an eyewitness identified a “girl” driving the white Honda from the April 12, 2019 robbery.
[33] I agree that in isolation, the Crown’s case against Mr. Simpson is weak on some of the counts, especially the two or three counts where the cell tower evidence does not support the Crown’s case. That said, and despite Mr. Achimpong’s very thorough submissions, I must respectfully disagree. Each count should not be viewed in isolation. There is a pattern. As Justice Downes pointed out, on the May 3 robbery at least, the Crown’s case is “formidable”. I agree. Mr. Simpson rented the car that was positively identified on at least some of the robberies. He was seen purchasing water bottles a few minutes before a robbery only a short distance away. The police found a water bottle with a DNA “hit” from Mr. Simpson, as well as masks, in the car that was identified as the getaway car. Even if the Crown’s case is weak on eight robberies and formidable on one robbery, that one is enough. If the Crown is successful on a cross-count similar fact application, the case will likely be overwhelming on most of the counts.
(e) Is Mr. Simpson’s continued detention still required?
[34] It is not difficult to conclude that Mr. Simpson’s continued detention is still required when I apply secondary and tertiary grounds as interpreted in St. Cloud. I see nothing that has changed since Justice Downes detained Mr. Simpson. I do not agree that there have been any developments that would call that finding into question. I do not see how the Crown’s case has become weaker.
[35] I turn to the secondary ground. A full review of Mr. Simpson’s criminal record indicates that he is likely to continue to commit further offences. Indeed, given his record, it seems to me virtually certain that he will breach any bail order that he is granted. It also seems virtually certain he will commit new crimes. That is, regrettably, abundantly clear from his record.
[36] I turn to the tertiary ground. This was a reverse onus situation. The offences were robberies using a firearm. Mr. Simpson is facing a very significant penitentiary sentence if he is convicted of even one of the robberies.
[37] As I have noted, the plan of release is unrealistic. Ms. Mangosongo is not an appropriate surety. It is a “reshuffling of the deck chairs”, as that phrase is often used.
[38] Moreover, Mr. Simpson was on probation for robbery when he allegedly committed these robberies. It is unclear to me that he has a job to go to (there was a vague mention of working as a cleaner). With respect, I think that the public would find it very surprising if Mr. Simpson would be released, given his antecedents. I do not wish to opine on the correctness or otherwise of the decision in Windsor to release Mr. Simpson on bail on drug trafficking charges. I will simply say, as I already did, that I find it surprising.
[39] To paraphrase Justice Wagner in St. Cloud at para. 167, a reasonable member of the public, who is not a legal expert but is nonetheless informed about the philosophy underlying the bail provisions, Charter values, and the circumstances of the case, would not understand how Mr. Simpson could be released.
[40] To release Mr. Simpson on robbery charges, in the face of being on probation for robbery and a record for violating court orders, would undoubtedly undermine confidence in the administration of justice. I completely agree with Justice Downes in that regard. In my view, and it is regrettable, Mr. Simpson’s detention continues to be necessary.
[41] I am aware that Mr. Simpson may not obtain a date for a preliminary inquiry until June 2020, and he may not come up for trial until 2021. The mere fact that an accused person is not receiving priority in terms of in-custody dates cannot be a basis for release. If there is unreasonable delay, then Mr. Simpson has other remedies available.
DISPOSITION
[42] Mr. Simpson will remain in custody.
R.F. Goldstein J.
Released: December 18, 2019
COURT FILE NO.: CR-19-60000226-00BR
DATE: 20191218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LEIGH SIMPSON
REASONS FOR JUDGMENT ON 90 DAY REVIEW
R.F. Goldstein J.