R. v. J.Q.H., 2020 ONSC 3358
COURT FILE NO.: CR-20-0000164-00BR DATE: 20200529 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – J.Q.H.
Counsel: Bradley Burgess, for the Crown Shedrack Agbakwa, for J.Q.H.
HEARD: May 22, 2020
DECISION ON DETENTION REVIEW
P. J. Monahan J.
1JQH has been charged with four counts of attempted murder, one count of aggravated assault, and various firearms-related offenses arising from a shooting outside a Toronto public school on April 4, 2019.
2Following a bail hearing before a Justice of the Peace in June 2019, he was ordered detained on the secondary and tertiary grounds. JQH seeks a review of that detention order pursuant to s. 520 of the Criminal Code, RSC 1985, c C-46.
3At the conclusion of the bail review, I advised the parties that I was dismissing JQH’s s. 520 application, with written reasons to follow. These are my reasons.
Background
4Oakdale Park Middle School (the “School”) is a public school for students between the ages of 12 and 14 located at 315 Grand Ravine Drive in northwest Toronto. On the afternoon of April 4, 2019, there was a student protest outside the School regarding public funding of education. Hundreds of students were involved in the protest.
5At some point, one of the students at the School, DL, had been beaten up by another student. A video of that scuffle had been posted on the Internet.
6As a result, two of DL’s older sisters, along with the boyfriend of one of the sisters, returned to the School with DL. They can be seen at approximately 2:10 PM driving up in a white Honda and parking on Grand Ravine Drive in front of the School.
7The group in the white Honda had a confrontation of some kind with an individual who had been involved in the scuffle with DL. This individual then indicated that he was going to call some friends.
8At approximately 2:13 PM, surveillance video shows a group of nine young people walking through a townhouse complex, heading towards Grand Ravine Drive and in the general direction of the School. One of the males broke off from the group and continued to his left down a narrow path that runs behind some townhouses towards the School. He was wearing a black hoodie with distinctive grey markings on the shoulders, white running shoes, and a baseball cap with a shiny decal on the top. Police allege this individual to be the accused, JQH.
9As he walked down the narrow path towards the School, the individual with the black hoodie briefly turned back towards the others in the group and lifted the clothing on the upper part of his body as if to show them something. From the surveillance video it is not possible to see what, if anything, the male with the black hoodie was trying to show the others. The rest of the group then quickly walked to the right over to a basketball court near Grand Ravine Drive, directly across the street from the School, where they stood watching the male in the black hoodie.
10The male in the black hoodie can be seen nearing the end of the path and approaching Grand Ravine Drive. He stopped, leaned over a low wire fence adjacent to the path and looked over to his right, in the general direction of the School and towards where the white Honda had parked some moments before. From the angle of the surveillance video neither the School nor the cars parked on Grand Ravine Drive are visible and thus it is not possible to see exactly what the male in the black hoodie was observing.
11The male in the black hoodie stood for about a minute looking in the general direction of where the Honda had parked. At approximately 2:14 PM, he pulled out a firearm from his clothing, assumed a shooting stance, and fired it four times towards where he had been looking. He then turned and ran back up the narrow path away from the School and towards the townhouse complex.
12The four shots fired by the male in the black hoodie all struck the white Honda parked in front of the School. One of DL’s sisters, VL, who was sitting in the right rear passenger seat of the Honda, was struck in the leg by one of the bullets. Miraculously, none of the other passengers in the Honda, nor any the dozens of students standing in front of the school, were injured.
13Meanwhile, the male in the black hoodie can be seen in surveillance video fleeing the scene on foot, running in a northerly direction through various laneways and foot paths that run through the townhouse complex. As he ran, he frequently stopped to catch his breath, leaning over with his hands on his knees. At approximately 2:17 PM, about 3 ½ minutes after the shooting, the security cameras in the area lost contact with him. At this point he was approximately 350 metres north of the School.
14The male in the black hoodie was not visible on any of the security cameras in the area for approximately the next six and half minutes. At about 2:24 PM, a security camera looking south from an apartment building at 5 Needle Firway shows a male off in the distance walking north towards the apartment building. (In April 2019, JQH resided with his mother and younger brother in apartment 303 of 5 Needle Firway. It is located about 500 metres northwest of the location where the male in the black hoodie had last been observed on surveillance video.) The male can be seen on security video stopping and bending over with his hands on his knees, in a manner similar to that observed in the video of the fleeing shooter. He then stopped and sat on a nearby park bench for about a minute, before continuing northward towards 5 Needle Firway.
15As he approached the building and came into better view on the security footage, it is apparent that this individual was wearing a black hoodie, white running shoes, and a baseball cap with a shiny decal on top. However, the black hoodie did not have the distinctive grey markings on the shoulders of the hoodie that was worn by the shooter.
16The male eventually entered 5 Needle Firway and took the elevator to the third floor. At approximately 2:28 PM, he can be seen using a key to enter apartment 303.
17Police obtained surveillance video from 5 Needle Firway recorded earlier that afternoon. This shows that a male exited apartment 303 at approximately 1:54 PM, wearing a black hoodie with distinctive grey markings on the shoulders, white running shoes, and a baseball cap with a shiny decal on top. This individual’s face can be seen directly on a security camera as he walked down a stairwell. He appears to be JQH.
18VL, the female passenger in the white Honda who was shot in the leg, had previously attended the School. Just after she was shot she turned around and looked back at the shooter. She recognized him as having attended the School when she had been a student there. She was subsequently shown a photo array of 12 photos. From this array she identified the photo of JQH as the shooter. VL also told police that she believed that JQH was currently a student at Westview High School.
19Subsequent inquiries indicated that JQH had been a student at Oakdale Park but he had never been a student at Westview.
20JQH was arrested by police on April 7, 2019. In the course of his arrest he was shot in the arm. The precise manner in which the shooting occurred is in dispute. JQH states that he was on the ground and in handcuffs when he was shot. The police maintain that JQH was resisting arrest and, in the course of a scuffle, one of the police firearms discharged accidentally, striking JQH in the arm. The circumstances of the shooting are under investigation by the SIU.
June 2019 Bail Hearing
21At the June 2019 bail hearing, the plan of release that was proposed was a house arrest bail whereby JQH would reside with his mother, OT, who would serve as his surety. Because OT attended school outside the home between 9 AM and 5 PM Monday to Friday, two other sureties were proposed. One of these sureties was SR, a friend of OT’s, while the other was PM, OT’s mother and JQH’s grandmother. JQH was to be home at all times unless in the presence of one of his sureties.
22All three sureties testified and were cross-examined at the bail hearing.
23OT testified that she had a good relationship with JQH and that he listened to her. However, she also testified that JQH spent 90 percent of his time in his room and only came out to get food or go to the washroom. She did not know what he was doing while in his room, or who his friends were.
24Police had learned that JQH had in the past gone to a shooting range to practice shooting firearms. OT was asked whether she thought that this was a strange hobby and whether it caused her any concern. She responded that she did not think it was strange or a matter of concern as long as JQH was not hurting anyone.
25OT was certain that JQH was not the shooter shown in the surveillance video. She did not believe that the person leaving her apartment at 1:54 PM on April 4, 2019 was her son, despite the apparent resemblance as captured on surveillance video. OT thought that his clothing was different, and that he walked differently than her son.
26Turning to the evidence of SR, she was asked about her experience serving as a surety for her son, KR, in connection with charges relating to a home invasion in 2015. Initially she denied that KR had breached the terms of his bail while she was his surety. However, she was subsequently forced to acknowledge that KR had in fact been found guilty of breaching this bail in connection with a 2016 case involving possession of stolen property.
27The 2016 possession of stolen property matter arose when KR was stopped by police in an allegedly stolen motor vehicle. SR was asked who else had been in that allegedly stolen vehicle at the time. Initially she indicated that she could not remember. However subsequently she acknowledged that JQH had also been in the stolen car with KR, and that both of them had been arrested and charged.
28After having heard the evidence of OT and SR, counsel for JQH 2 indicated that he was no longer confident that this was a viable release plan and he sought to adjourn the bail hearing. The Crown objected and the Justice of the Peace proceeded with the hearing.
29PM then testified. She indicated that she used to see JQH frequently when she lived close by her daughter, OT. However, PM had moved to another apartment after PM’s nephew had been shot just outside her apartment door. (PM thought that one of her sons was the target of the shooting rather than her nephew, which caused her to move.) PM no longer saw JQH very often.
30PM was asked about various charges that had been laid in the past against her sons, some of which also involved JQH. She was unaware of, or could not remember the circumstances involved. She explained that she did not know what her adult sons did or who they were associated with when they were outside of her home.
31The Justice of the Peace detained JQH on both the secondary and tertiary grounds. The Crown had a strong case and the offences with which JQH was charged were extremely serious, involving a shooting in broad daylight in an area surrounded by hundreds of children. The sureties, while well-intentioned, had little knowledge of JQH and had no ability to properly supervise him.
Proposed Release Plan
32The current plan of release is essentially identical to that put forward at the initial bail hearing, except that SR is no longer proposed as a surety. This is because OT is no longer attending school or working and she will be available most days to supervise JQH. When OT is not available, JQH will be supervised by PM. JQH will be on house arrest and will only leave OT’s residence in the presence of one of his sureties.
Positions of the Parties
33It is conceded that this is a reverse onus bail, given that JQH is charged with attempted murder and that he was also on bail at the time of his alleged offence.
34It is further conceded by the Crown that COVID-19 constitutes a material change in circumstances justifying a fresh consideration of whether JQH should be detained.
35The main focus of the defence submissions was on the strength of the Crown’s case. Counsel for JQH pointed out that the shooter was wearing a black hoodie with distinctive grey markings on the shoulders. However, the person who entered the accused’s apartment at approximately 2:28 PM on the day in question (who is conceded to be JQH) was wearing a different hoodie. Counsel also pointed out that there were no timestamps on the surveillance videos showing the shooter running away through the townhouse complex.
36Counsel for JQH also questioned the reliability of the identification of JQH by VL. It was pointed out that VL was some distance away from the shooter and may not have had a clear view of his face. It was also noted that JQH did not attend Westview high school, contrary to what was suggested by VL.
37Defence counsel noted that JQH intended to raise Charter arguments arising from the fact that he had been shot at the time of his arrest. In addition, JQH’s preliminary inquiry has been postponed and it may be many months before his trial can take place. Although JQH is just 19 years old and does not have any underlying health conditions, he is at risk of contracting COVID-19 if he is detained for a substantial period of time.
38In response, the Crown argued that the case against JQH is very strong. Although it is conceded that JQH was not wearing the hoodie with distinctive grey markings on the shoulders when he returned to his apartment at 2:28 PM, surveillance video shows him leaving the apartment about 35 minutes earlier wearing such a hoodie, along with other clothing that appears identical to that worn by the shooter.
39The Crown maintains that the eyewitness identification by VL is reliable. She recognized JQH immediately, having known him from school. The fact that she was mistaken as to whether or not he attends Westview High School it is an extraneous fact that does not call into question the reliability of her identification of JQH.
40The Crown argues that the sureties proposed are manifestly unsuitable. Their evidence at the original bail hearing indicates that they are largely indifferent as to whether JQH is involved in criminal activity. Releasing him on this plan would be a recipe for reoffending by JQH.
41The Crown concedes that the existence of the COVID-19 pandemic is a relevant consideration under the tertiary ground. However, it is merely one factor to be considered and cannot overwhelm the analysis. JQH is 19 years old with no underlying health conditions. Given the strength of the Crown’s case, the brazen nature of the alleged offence, and the fact that he would face a substantial term of imprisonment if found guilty, the risk posed by COVID-19 does not tip the balance in favour of release on the tertiary ground.
Applicable Legal Principles
Basic Principles
42As Chief Justice Wagner observed in R. v. Antic, 2017 SCC 27 ("Antic") at para 1, the right not to be denied reasonable bail without just cause is an essential element of our criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons.
43The right to reasonable bail has two aspects. First, a person charged with an offence cannot be denied bail without “just cause”, such that the denial is necessary to promote the proper functioning of the bail system. Second, any conditions upon release must be imposed in accordance with the “ladder principle”, which favours release at the earliest reasonable opportunity and on the least onerous grounds. Further, a recognizance with sureties is one of the most onerous forms of release and should not be imposed unless all less onerous forms of been considered and rejected as inappropriate. Antic, at para 67.
44In this case it is acknowledged that, given that JQH is been charged with attempted murder and was on bail at the time of his arrest, he has the onus of showing why his continued detention is not justified.
Secondary and Tertiary Grounds for Detention
45The Crown argues that JQH has failed to meet his onus under either the secondary or tertiary grounds in s. 515 (10) and, accordingly, his detention should be continued.
46An analysis of the secondary ground requires the court to undertake a risk assessment to determine whether, having regard to all the circumstances, it is necessary to continue the detention of the accused for the protection or safety of the public. This risk assessment must include a consideration of whether it is substantially likely that the accused will, if released, commit a criminal offence or interfere with the administration of justice. A “substantial likelihood” requires a probability of certain conduct, not a mere possibility, and the probability must be substantial, in other words, significantly likely. R. v. Manasseri, 2017 ONCA 226, at para 87. It is relevant to consider the nature of the alleged offences, the circumstances surrounding their alleged commission, the likelihood of conviction, and the danger that the release of the accused would pose to the community.
47In assessing the tertiary ground, whether an accused’s detention is necessary to maintain confidence in the administration of justice, section 515 (10) (c) requires the court to have regard to four circumstances in particular:
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 is liable on conviction for a potentially lengthy term of imprisonment.
48The leading case on the application of the tertiary ground for detention is R. v. St. Cloud, 2015 SCC 27 ("St. Cloud"), where Wagner J. (as he then was) held that even if all four of these enumerated circumstances support a detention order, detention of the accused should not automatically follow. The four listed circumstances are simply the “main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country.” St. Cloud, at para 69.
Analysis
Material Change in Circumstances
49The Crown concedes that COVID-19 constitutes a material change in circumstances justifying a fresh consideration of the grounds for JQH’s detention.
The Secondary Ground
50As discussed above, JQH’s submissions on the secondary ground primarily focused on the strength of the Crown’s case.
51There are two difficulties with this approach.
52The first difficulty is that, although the Crown case is not airtight, I find the case to be a strong one. It is true that when JQH returned to his apartment at 5 Needle Firway just before 2:30 PM on April 4, 2019, his hoodie did not have the distinctive grey markings on the shoulders of the hoodie worn by the shooter. However, when JQH left his apartment at 1:54 PM that day, he was wearing a hoodie with distinctive grey markings on the shoulders. He was also wearing white running shoes and a baseball cap with a shiny decal on top. In short, his appearance just 20 minutes before the shooting appeared virtually identical to that of the shooter as shown on the surveillance video.
53Nor is the Crown’s case entirely circumstantial. When VL turned around from her seat in the Honda and looked at the shooter, she recognized JQH as a fellow student from her time at the School. It is highly improbable, to say the least, that VL would have mistakenly recognized JQH as the shooter when, just minutes before, the very person she mistakenly thought was the shooter happened to have left his nearby apartment wearing identical clothing to that worn by the shooter. As for the fact that VL erroneously thought that JQH was a student at Westview High School, I regard this as a collateral matter that does not call into question the reliability of VL’s identification.
54The second difficulty with the defence submissions on the secondary ground is that very little attention was paid to the fundamental question of whether there is a substantial likelihood that JQH would reoffend if he were released. On this issue, I agree with the Justice of the Peace’s assessment that the two sureties are manifestly unsuitable to properly supervise JQH. Both OT and PM displayed very little knowledge of, our concern about, the criminal behaviour of JQH (or, in the case of PM, of her adult sons.) Nor did the proposed sureties appear forthright in their evidence as, in the course of cross-examination, they were forced to revise or alter their evidence.
55It is particularly telling that midway through the bail hearing, counsel for JQH sought to adjourn the proceeding on the basis that it was evident that the proposed plan of release was not viable. Yet that very plan is being advanced on this bail review.
56I note that counsel for JQH did not claim that the existence of the COVID-19 pandemic was relevant on the secondary ground. I would further observe that, although Charter arguments may be advanced in light of the fact that JQH was shot when he was arrested, no such application has been filed and it is impossible at this stage to assess whether it will impact the strength of the Crown’s case.
57I recognize that JQH has a limited criminal record and he is just 19 years old. Nevertheless, given the manifest inadequacy of the proposed plan of release, I find there is a substantial likelihood that he would reoffend if released. As such, JQH has failed to meet his burden under the secondary ground and his continued detention is justified.
The Tertiary Ground
58This conclusion on the secondary ground is sufficient to dispose of the application. Nevertheless, because the issue was fully argued, I consider whether JQH’s continued detention is also justified on the tertiary ground.
59The circumstances which resulted in JQH’s detention on the tertiary ground at the original bail hearing remain relevant. In particular, the Crown has a strong case, and the offences with which HK is charged are extremely serious crimes involving discharge of a firearm in front of a crowded school. If convicted, JQH is certainly facing a substantial penitentiary term.
60The fact that JQH’s preliminary inquiry has been postponed is a matter of concern. JQH has now been in custody for over a year, and it will likely be a substantial period of time before JQH’s trial can be held. Nevertheless, even taking into account enhanced credit for pretrial custody in the context of the COVID-19 pandemic, HK is far short of a position where, on a finding of guilt, he would receive a sentence approximating his time served.
61This leaves for consideration the impact of COVID-19 on the tertiary grounds for detention.
62I accept that that there is a significantly enhanced risk of contracting COVID-19 in the province’s correctional institutions. In my view, it is desirable to use all available mechanisms to reduce the inmate population so as to minimize the spread of the virus amongst both inmates and staff.
63On the other hand, JQH is just 19 years old with no underlying health conditions. He is at the low-end of the risk scale for COVID-19. Moreover, the Crown provided evidence indicating that, thus far at least, the Ministry of Solicitor General has been largely successful in limiting the spread of COVID-19 in the province’s correctional facilities, including Maplehurst Correctional Complex where JQH is currently being held.
64I therefore find, considering all the relevant circumstances, that JQH’s detention remains necessary in order to maintain confidence in the administration of justice.
Conclusion
65JQH’s application under s. 520 of the Criminal Code is dismissed.
P. J. Monahan J.
Released: May 29, 2020