Court File and Parties

COURT FILE NO.: CR-20-6/147 DATE: 20200522 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – K.A. Applicant

Counsel: Carolyn Otter, for the Respondent Jennifer Myers, for the Applicant

HEARD: May 5, 2020

Restriction on Publication

Pursuant to section 517(1) of the Criminal Code, an order issued prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given, or the representations made, and the reasons issued, on this application. This prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. This prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.

MR. Justice Peter BAWDEN

[1] K.A. has been detained since January 5, 2020 on two sets of criminal charges. He is entitled to a review of his detention on both sets of charges pursuant to section 525 of the Criminal Code.

[2] The first set of charges were laid in August 2018. They arise from a series of telephone calls which were intercepted during the time that Mr. K.A. was serving sentence in a federal institution. Mr. K.A. was charged with conspiracy to traffic in a schedule I substance, participation in a criminal organization, committing an offense for the benefit of a criminal organization and instructing the commission of an offense for a criminal organization. He was granted bail by a Justice of the Peace on October 18, 2018 and that release was upheld on review. Although he had been granted bail, Mr. K.A. remained in custody while he served the remnant of his sentence.

[3] While still serving his sentence, Mr. K.A. was brought to 361 University Avenue on October 18, 2019 for a court appearance. Mr. K.A. and two other inmates attacked a fellow inmate in a holding cell causing serious injuries. He was charged with aggravated assault. The Crown applied to revoke his bail on the criminal organization charges. Mr. K.A. did not contest the revocation and did not seek bail at that time on either set of charges.

[4] Mr. K.A.'s federal sentence expired on January 5, 2020 and he now seeks to be released on both sets of charges. This is to be treated as an initial bail hearing with respect to the trafficking and criminal organization charges although Crown counsel has provided me with the transcripts of the earlier bail proceedings. I have also reviewed the ruling of the preliminary inquiry justice who committed Mr. K.A. to stand trial on the trafficking and criminal organization charges.

[5] The purpose of this application is to determine if Mr. K.A.’s continued detention is justified within the meaning of section 515(10) of the Code. That determination is made based on all of the relevant factors including ongoing delay in the proceedings, whether the period of detention exceeds the likely sentence in the event of a conviction and any change in the circumstances of the case or the accused.

Mr. K.A.’s Criminal History

Age	Event	Sentence
Aged 15	Mr. K.A. was investigated by police for an HTA offence. He refused to identify himself. Police placed him under arrest and found a loaded handgun in his shoulder bag and cocaine in his pocket.	Time served on the firearm charges (12 ½ months of pre-trial custody served); 3 months consecutive for PPT Sch. I Substance
Aged 17	Mr. K.A. committed a home invasion robbery while armed with a handgun. One of the victims resisted. Mr. K.A. threatened to shoot the victim and did fire two shots, neither of which struck the victim.	Sentenced as a youth to 2 years in custody to be followed by 1-year supervision in the community for armed robbery and possession of a prohibited weapon
Aged 17	While in custody awaiting his trial on the home invasion robbery, Mr. K.A. committed his first assault on a correctional officer.	60 days consecutive incarceration to be followed by 30 days supervision in the community.
Aged 19	While serving the custodial portion of his youth sentence, Mr. K.A. committed his second assault on a correctional officer. Mr. K.A. was convicted of assault causing bodily harm, his first adult conviction.	1-year consecutive to the existing youth sentence. Mr. K.A. elected to serve the remnant of his youth sentence in a federal institution.
Aged 20	While serving sentence at a federal institution in Kingston, Mr. K.A. committed his third assault on a correctional officer.	90 days consecutive
Aged 21	While serving sentence, Mr. K.A. was intercepted counseling members of a criminal organization concerning the commission of criminal offences including trafficking drugs into the institution.
Aged 21	Mr. K.A. was brought to Toronto to be charged with drug trafficking and being a member of a criminal organization. He was granted bail and returned to Kingston to complete his parole at the Henry Trail Correctional Centre.
Aged 22	Mr. K.A. was found in possession of a cell phone, contrary to the terms of his probation and his bail. His parole was suspended, and he ultimately pleaded guilty to FTC Recognizance.
Aged 22	While attending a court appearance in Toronto, Mr. K.A. orchestrated an attack on a fellow inmate in the cells at 361 University Avenue. The victim was badly beaten and suffered severe injuries to his eye.

[6] Mr. K.A. has been in custody since February 27, 2014.

Allegations in the Criminal Organization Charges

[7] The criminal organization and conspiracy to traffic charges are based on telephone conversations intercepted as part of Project Patton. The Crown alleges that the applicant was a member of a criminal organization which called itself “The Shots Up Mafia”. This group was involved in trafficking guns and drugs in the Toronto area. Shaquille Belle was a highly placed member of the organization. Mr. Belle, like the applicant, was serving a federal penitentiary sentence during Project Patton but was nevertheless able to direct the activities of the group through his brother, Jason Sewell. Many of the intercepted conversations which inculpate the applicant were with Mr. Sewell.

[8] The seriousness of the criminal activity undertaken by this organization should not be understated. The intercepts suggest that the gang was involved in trafficking fentanyl, heroin and cocaine. Mr. Belle and Mr. Sewell discussed the territory of the gang, potential rivals and retaliation for attacks which had been perpetrated on their own gang members. Mr. Belle instructed Jason Sewell that he wanted every member of the organization to be armed before summertime.

[9] The case against the applicant turns on the intercepted calls as well as his participation in rap videos which were filmed prior to his incarceration. In his calls with Mr. Sewell, the applicant demonstrates that he is very familiar with Mr. Belle and the structure of the organization. In one call, Mr. K.A. told Jason Sewell that others were planning to undermine him and pledged his own allegiance to Mr. Sewell.

[10] The conspiracy to the traffic charge arose from a series of calls between Mr. Sewell and the applicant which occurred shortly after the death of Mr. K.A.'s mother. Mr. K.A. advised Mr. Sewell that his mother had died and that he would be coming out of jail to attend her visitation. He asked Mr. Sewell to wrap an unspecified item in waterproof tape and then hide the item in the toilet of the funeral home washroom for him to retrieve. He also suggested that the item might be hidden in his mother's casket. The item was discussed in coded terms, but it can readily be inferred that it was a potent drug of considerable value. There was no suggestion that Mr. K.A. intended to consume the drug himself.

[11] The criminal organization charges are extremely serious and, if the wiretaps are admitted into evidence, the case against the applicant is fairly strong.

[12] The conspiracy to the traffic allegation is entirely made out by the intercepted calls. The only foreseeable issue for the jury to consider will be the nature of the drug.

The Allegations in the Aggravated Assault

[13] Mr. K.A. orchestrated an attack on a fellow inmate in a holding cell at 361 University Avenue. The entire incident was captured on video and there is no doubt about Mr. K.A.’s culpability for the offence.

[14] Mr. K.A. was one of three inmates present when the victim was placed in the cell. The victim clearly recognized Mr. K.A. and the two men approached one another when the cell door closed. Mr. K.A. extended his hand in what appeared to be friendly manner and the victim reciprocated. As the two men were shaking hands, one of the other two inmates approached the victim from behind. The victim suddenly jumped back from Mr. K.A., apparently recognizing that he was in danger, and was immediately attacked by all three inmates. The victim fell to the floor where he was repeatedly punched and kicked by all three attackers. The attack went on for approximately two minutes before court officers entered the cell to remove the victim. At the conclusion of the incident, Mr. K.A. congratulated his fellow assailants with handshakes and chest bumps. When viewed in its entirety, the video strongly supports the inference that Mr. K.A. orchestrated the attack.

[15] The victim suffered a fracture to the orbital floor of his right eye which required reconstructive surgery to repair. Surgeons were fortunately able to insert an implant into the eye which restored his normal vision.

The Release Plan

[16] Mr. K.A. proposes that he be released to live with his sister, S.D., in her home in Woodbridge. Ms. S.D. is a single mother who lives with her two children, aged 13 and 2. She recently graduated from George Brown college where she received a degree in nursing. She has not yet been able to obtain her nursing license as a result of disruptions caused by the Covid-19 pandemic. While she awaits her licence, Ms. S.D. is looking after her children and hopes to earn some income working as an aesthetician from her home.

[17] Ms. S.D. was one of two sureties who signed Mr. K.A.’s first bail on the criminal organization charges. Mr. K.A. has been convicted of breaching a term of that bail by having a cell phone and that failure to comply would ordinarily present a significant impediment to Ms. S.D. acting as a surety again. At the time of the breach, however, Mr. K.A. was staying at a halfway house in Kingston and was under the immediate supervision of a parole officer. Ms. S.D. had no opportunity to observe Mr. K.A. and no means to enforce the terms of the bail. She relied entirely on the parole office to provide the necessary enforcement. Although the breach does give rise to concerns about Mr. K.A.’s reliability, it does not lessen my confidence in Ms. S.D..

[18] The Crown does not take issue with Ms. S.D.‘s suitability as a surety but does question her ability to supervise Mr. K.A. given her commitments to her two children, the professional demands of becoming a nurse and the necessity of earning income. These are all very valid concerns.

[19] Counsel for Mr. K.A. proposes that the plan for supervision be enhanced with electronic monitoring which is now available through the Ontario Electronic Supervision Program.

[20] I am satisfied based on the material presented and Ms. S.D.’s testimony that she would be a reliable surety. I also find that it is reasonably possible that she will be able to exercise some moral influence over Mr. K.A.. I come to that conclusion not because of Mr. K.A.’s assurances, but rather from one of his intercepted conversations. When Mr. K.A. was instructing Mr. Sewell to hide drugs at the funeral home, he cautioned him that he must not be seen by Ms. S.D. because she would immediately recognize from his mere presence what was going on. The fact that Mr. K.A. credited his sister with such intuition demonstrates not only that she knows him well but also that he knows that she will not stand by if he engages in criminal activity. It is that call, not Mr. K.A.’s assurances, which give me the necessary degree of confidence.

[21] I am under no illusions regarding Mr. K.A.'s character or his willingness to abide by conditions. The conversations which police intercepted in 2018 demonstrate that he was, at least at that time, thoroughly committed to a gang lifestyle. He has shown no contrition for his prior offences and the fact that he seized upon his mother’s death as an opportunity to traffick in drugs suggests the absence of any moral compass. I am hard-pressed to think of any redeeming features to this point in Mr. K.A.'s life.

[22] But the prospect of rehabilitation can never be discounted in such a young man. Mr. K.A. has not been free since January 2014. His formative years have been spent fending for himself in youth and adult jails and, when considered in that light, it is hardly surprising that he has sought security through gang affiliations. Continuing to hold Mr. K.A. in custody will do nothing to lessen the strength of those affiliations; there is a chance that returning him to his family might.

[23] I am prepared to release Mr. K.A. on the trafficking and criminal organization charges on a $1500 surety bail which is to be signed by his sister, S.D.. The bail will require supervision through the Electronic Supervision Program provided through the Ontario Monitoring Centre. Arrangements for this program may be initiated at the point that Mr. K.A. is no longer detained on any other matter. Other terms of the bail will be:

a. Live with S.D. at 8224 Pine Valley Drive, Woodbridge, Ontario and not to leave the house unless in the company of S.D. or for medical emergencies. b. Not to be in possession of a cellular phone. c. Not to have access to the Internet unless under the direct supervision of S.D. or another adult designated by S.D. to supervise. d. Not to have contact with any co-accused or witness in any of Mr. K.A.’s outstanding criminal matters.

[24] I invite counsel to provide submissions through email concerning any additions or amendments to these terms.

The Aggravated Assault Charge

The Secondary Ground

[25] Although I am prepared to release Mr. K.A. on the criminal organization and trafficking charges, I cannot come to the same conclusion with respect to the aggravated assault. In my view, there is an overwhelming concern on the secondary ground which cannot be addressed through any plan of release.

[26] Mr. K.A. has a staggering history of violence for a 23-year-old man who has been in custody for the last six years. He has committed three serious assaults on correctional officers while serving sentence and his second such conviction gave rise to a one-year consecutive sentence.

[27] The index offence took place in the cell of a courthouse. Mr. K.A. repeatedly punched and kicked a defenseless man knowing full well that his actions were being captured on camera and directly observed by a court officer. These are circumstances which would cause almost any offender to at least temper his attack, but not Mr. K.A.. The most generous interpretation that can be accorded to his actions is that he was completely out of control.

[28] If Mr. K.A. is capable of engaging in such a prolonged and vicious attack within full view of a peace officer, it can safely be concluded that there is no condition which would reliably restrain his conduct once released into the community. There is a substantial risk that he will commit further acts of violence if he is released and the video of this assault provides ample evidence of the danger that this would present to members of the public. In my view, he must be detained on the secondary grounds.

Reasons on the Tertiary Grounds

[29] I would also detain Mr. K.A. on the tertiary grounds. The evidence of his guilt on the aggravated assault is overwhelming. This was a serious crime which was committed in defiance of correctional officers and arguably the court itself.

[30] Mr. K.A. is at the very least closely aligned with a criminal organization. He shows no respect for authority, a fact which is proven by his repeated attacks on correctional officers, his flagrant drug trafficking while in custody and his disregard for conditions when he was released on parole. The fact that he undertook a prolonged beating of a defenseless man while in the full view of a court officer is emblematic of his contempt for the authority of the justice system.

[31] Any reasonable member of the public, fully informed of Mr. K.A.’s past and the circumstances of this most recent offense, would expect his detention and would be bewildered if he were to be released.

[32] Accordingly, Mr. K.A. will also be detained on the tertiary ground.

Justice Peter Bawden Released: May 22, 2020

Reasons for Judgment

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – K.A. Applicant

BAWDEN J. Released: May 22, 2020