COURT FILE NO.: CR-20-00000189-00BR
DATE: 20200612
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HER MAJESTY THE QUEEN, Respondent
AND:
Mark thompson, Defence/Applicant
BEFORE: S.F. Dunphy J.
COUNSEL: Darren Hogan and Karolina Visic, for the Crown
Jennifer Myers, for the Defence/Applicant
HEARD at Toronto: May 29, June 5 and June 12, 2020
RESTRICTION ON PUBLICATION: Information contained herein is subject to a publication ban pursuant to s. 517 of the Criminal Code. The foregoing ban does not apply to publication of these reasons in full in law reports nor to a discussion of the underlying legal principles in other publications without reference to the particulars of the charges or personal details in relation to an accused person.
REASONS FOR DECISION – DETENTION HEARING
[1] This is an initial application for bail by Mr. Mark Thompson. He has been held in detention at Toronto South Detention Centre since his arrest on charges of murder on July 5, 2018. Following a preliminary inquiry, he was committed to stand trial on charges of manslaughter on May 11, 2020. He is applying to be released from detention before trial. This is his first detention review. This application was heard by telephone in light of the current emergency and extended over three separate appearances as a result of certain questions I asked the parties to look into before giving my final decision. I shall reference those issues below.
Background facts and evidence
[2] The charge against Mr. Thompson arises from the shooting death of Mr. Brent (also known as Dwight) Young early in the morning of June 24, 2018. Mr. Thompson was initially charged with first degree murder arising from this incident along with his co-accused Mr. Warren D. Farrell. Mr. Thompson was not alleged to be the shooter.
[3] Following the preliminary inquiry, Borenstein J. determined that a reasonably instructed jury could find that Mr. Farrell robbed and killed Mr. Young and that Mr. Thompson formed a joint intention with Mr. Farrell to rob Mr. Young knowing of the risk of bodily harm connected to the robbery. However, the learned Justice found that there was insufficient evidence to conclude that Mr. Thompson knew that Mr. Farrell had a gun or intended to kill Mr. Young. In the result, Mr. Thompson was committed on the charge of manslaughter. Mr. Farrell had conceded committal on charges of second-degree murder.
[4] It is not material for present purposes for me to present more than a very high-level summary of the nature of the allegations made. Justice Borenstein’s reasons for decision contain a concise statement of the matters for which he found that there was sufficient evidence and I have drawn liberally from his summary.
[5] The shooting took place shortly after 2:11 a.m. in apartment #304 at 251 Sherbourne Street in Toronto. Mr. Young was shot five times at the entrance to the apartment unit, circumstances leading to an inference of an intentional shooting.
[6] Mr. Young was not the occupant of the apartment in question but was known to use it from time to time in connection with selling narcotics. Other units on the floor were generally known to be used by other dealers in a similar way.
[7] Mr. Farrell was also known to be a drug dealer around the area of 251 Sherbourne Street. His co-accused Mr. Thompson, on the other hand, was known as a drug user and not a seller. Mr. Thompson also knew Mr. Young and was on friendly terms with him. The Crown theory is that he might also have been expected to be someone for whom Mr. Young would open the door.
[8] Mr. Farrell was known to have been needing money at this time. There is also evidence that he was looking to acquire a firearm. He acquired a new cell phone number shortly before the shooting and stopped using that phone immediately afterwards.
[9] Surveillance camera evidence shows Mr. Farrell and Mr. Thompson together in the immediate area of 251 Sherbourne on the evening of the shooting including in the time frame immediately prior. Mr. Farrell and Mr. Thompson were both filmed entering the rear stairwell of the building. They are both depicted ascending the staircase together a few minutes before the shooting but after both of them put their hoods up in a manner that obscured their faces on the surveillance cameras. They separated for a period of time shortly thereafter for about ten minutes.
[10] At about 2:07 a.m., Mr. Farrell was captured on camera walking towards unit #304. Although he had been captured by cameras earlier in the evening with a satchel around his neck, he did not have it on him at this time. At 2:09 a.m., he sent a text message to an unknown person saying “now”. No phone records of Mr. Thompson are in evidence and there is thus no direct evidence that Mr. Thompson was the one to whom the text message was sent. Mr. Thompson is then captured by the cameras at 2:09 a.m. in a stairwell with a backpack on his back and wheeling a small suitcase. He stopped briefly to talk to a resident in the stairwell and is then seen on camera walking towards unit #304 at 3:11 a.m. It is at or about this time that the shooting is alleged to have occurred. There is no surveillance footage of apartment #304 itself.
[11] Mr. Farrell and Mr. Thompson are next depicted on the camera evidence heading down the stairs towards the exit. Mr. Farrell now had a satchel around his neck again and Mr. Thompson had the backpack and suitcase. A witness testified that she saw the two of them “high-fiving” each other a short distance down the road.
[12] When police and paramedics arrived a few minutes later, neither drugs nor money were found inside the apartment. Others had access to the apartment in the intervening period.
[13] In his subsequent statement to police, Mr. Farrell claimed to be a friend of Mr. Young. He denied having been at the scene of the shooting or having heard the gunshots. Other witnesses described hearing the gunshots outside the building.
[14] I have omitted much of the detailed evidence that was analyzed by Justice Borenstein, but the foregoing provides a sufficient gist of the nature of the case.
[15] A few observations about the strength of the case are in order as this will be relevant when I review the arguments in favour of the tertiary and, to a degree, the secondary grounds of detention advanced by the Crown. Clearly, this case is primarily a circumstantial evidence case. No witnesses to the shooting have come forward. The video evidence is what it is – sometimes grainy, sometimes hard to follow. Many of the cameras in this building had been disabled and there were some issues with the synchronization of the time stamps on the ones that worked. Mr, Thompson gave a statement that contains some admissions and is also exculpatory. He also confirmed his identity from the video surveillance evidence in his statement. The witness who saw the “high five” incident had consistency problems that will undoubtedly be important in assessing the credibility of that evidence.
[16] This of course is precisely what trials are for and what detention hearings are not intended to sort through at more than a high level. Mr. Thompson is presumed innocent until all of that evidence has been sifted through thoroughly by the trier of fact. I cannot conclude, as the defence urges me to do, that the case is a weak one. There are points of weakness to be sure, but the overall weight of the circumstantial evidence could well be found to dispel any reasonable doubt. Much will depend on how the evidence goes in. Nor can I conclude – and the Crown did not urge it – that the case is an overwhelmingly strong one. This case, insofar as I can characterize its strength at this early stage, lies somewhere between those two poles as indeed a large number of cases necessarily do at this stage of the analysis.
[17] I turn now to consider the proposed release plan and the evidence presented in that regard.
[18] Mr. Thompson is, by all appearances, something of a transient and a long-term drug addict. He has no money himself to post as a guarantee. He also appears to have spent his recent years at least without reliable housing, often relying upon this or that friend to take him in for a while. The right to bail is of course a Charter-protected right that is not subject to a means test. That simple observation does not make the task of putting together a release plan less daunting for Mr. Thompson, but it does demand a degree of sensitivity to the circumstances on my part – allowances must be made for the challenging circumstances he is in when assessing the viability of any release plan. Stated differently, detainees with access to more means might well be able to assemble a more robust plan. I must examine the plan before me with an eye to the sufficient for the purpose and not the ideal. A bicycle and a Buick are equally capable of moving a person from point A to B. The goal is to measure the sufficiency of the plan having regard to the fundamental principles of s. 515(10) of the Criminal Code. Those principles include the basic premise that detention should only be ordered or continued where necessary having regard to the criteria described therein.
[19] To his credit and theirs, Mr. Thompson has managed to cultivate and retain two pro-social friendships with people who are not of the world of addicts and dealers in which he appears to have spent a good deal of his life. None of them was quite sure how long they have known each other, but approximately fifteen or so years seems about the size of it. While the Crown wished me to note that these two have been his friends throughout much of the span of time reflected in Mr. Thompson’s (considerable) criminal record, that is an observation that cuts two ways. True, it can be said that their past influence over Mr. Thompson has not been sufficient to deter him from near-constant conflicts with the law. On the other hand, they have stuck by him through it all and asserted what influence they could upon him for the better as far as it lay within their means to do so. They have at least steadily encouraged him to seek employment and put down some more durable roots.
[20] These two friends, both of whom have offered to stand as Mr. Thompson’s sureties, are Mr. Oscar Alcazar and Mr. Hassan Ibrahim. The proposed release plan envisages that Mr. Thompson would be released under the following terms:
a. To live with his surety, Oscar Alcazar, at 220 Oak Street #1703 and follow the rules of that house;
b. To report daily to Hassan Ibrahim - either in person or by phone if Mr. Ibrahim is out of the country;
c. To follow any instructions of his sureties with respect to counselling for drugs or other issues, and sign any releases that they deem necessary;
d. Not to be in possession of any drugs or illegal substances without a valid prescription;
e. Not to attend at or within 250 meters of 251 Sherbourne Street, Toronto, or on any of the properties collectively known as the Dan Harrison Complex;
f. Not to have contact with any witness in the case or Warren Farrell, except through counsel for the purpose of preparing his defence;
g. Any other conditions that the Court deems appropriate.
[21] Mr. Alcazar is currently retired, living on a modest pension income of approximately $1,600 per month. He lives in a bachelor apartment in a public housing building in the Regent Park area. He clearly does not have a lot of room but was willing to allow Mr. Thompson to sleep on an air mattress in his apartment.
[22] Mr. Alcazar’s plan for Mr. Thompson is based on the idea that there is nothing wrong with Mr. Thompson that the discipline of hard work and gainful employment will not help fix. He believed that Mr. Thompson ought soon to be able to secure such a job and be able to contribute towards his living expenses. He had no clear idea how long it might take to secure a job in a city only now tentatively emerging from a pandemic lock-down. Until that day, his expectation is that Mr. Thompson would stick to him like glue – he would stay in the apartment when Mr. Alcazar is indoors and accompany him to the grocery store etc. when there are errands to be run. He expected that Mr. Thompson would be absent from his sight only for work and only for the time needed to go directly to and from his place of employment. From time to time, the co-surety Mr. Ibrahim might spell Mr. Alcazar off in his supervision duties. He intended to procure a cell phone to allow both sureties to check up on Mr. Thompson any time that Mr. Thompson was on his own.
[23] Although he had virtually no savings to offer up by way of guarantee, Mr. Alcazar offered that he would be prepared to stand for as much as $5,000 as long as he could pay the sum over time if called upon to do so. He confirmed that he fully understood his duty was to call police to report breaches of release terms, even if that meant that Mr. Thompson’s bail might be revoked. He indicated that he does keep some alcohol in his apartment but would be willing to forego that were Mr. Thompson to be under an alcohol restriction. His willingness to call police was challenged somewhat on cross-examination when he volunteered that his reaction to finding that Mr. Thompson had violated release terms in relation to drug use or alcohol would be to take him to get treatment, making no mention of calling police.
[24] Mr. Alcazar was undoubtedly sincere and acting in good faith. He is clearly willing to make significant sacrifices for Mr. Thompson’s sake. There are some aspects to his testimony that must nevertheless be brought to the fore.
[25] He had no clear idea how long this arrangement might last, seeming to expect only a few months at the outside. Nevertheless, when told that the arrangement might have to last longer than this, he did not flinch. Mr. Alcazar’s means to provide for Mr. Thompson and furnish him with a cell phone for the purposes of checking up on him are quite limited, although this is subject to the observation that Mr. Ibrahim has indicated a willingness to assist as well and has somewhat more financial means. Mr. Alcazar’s expectations appeared to me to be quite firmly rooted in the idea that Mr. Thompson would find employment and soon. That expectation must be tempered by two observations. First, the state of emergency in Ontario is still in force and large numbers of Ontarians have lost their jobs. Mr. Thompson’s ability to secure employment if, as and when the lockdown is eased to the point of allowing regular employment to resume is difficult to predict. Second, were that to occur, the ability to supervise Mr. Thompson while absent effectively or at all by means of the odd phone call, particularly where his employment may be sporadic and unpredictable, is quite doubtful.
[26] As noted earlier, Mr. Alcazar appeared to consider himself as vested with discretion about what action if any to take should he find Mr. Thompson in breach of any release rules, including those relating to intoxicants. The instinctive reaction he testified to – that he would make Mr. Thompson undergo treatment – was of course wrong in that he failed to offer that he would first notify police.
[27] There is a further observation that emerges from Mr. Alcazar’s testimony and that relates to the location of his proposed residence. Mr. Alcazar attributed much of Mr. Thompson’s trouble with the law – a history that he was only loosely familiar with prior to this application – to the bad influences he was exposed to. Those influences, he acknowledged, were very largely in the very neighborhood and in the same building where he proposed to house Mr. Thompson.
[28] I quite frankly did not accept Mr. Alcazar’s sweeping assertion that all of these negative influences had somehow died or moved away just in the last short while. Mr. Alcazar himself appeared to retract that broad generalization at one point, admitting that there was some really “bad company” around the building even now. That same building, it bears noting, was the venue for one of Mr. Thompson’s assault convictions and the victim of that incident still lives there. I shall return to that issue below.
[29] One final comment regarding the building emerged from Mr. Alcazar’s testimony. Mr. Thompson came to live with Mr. Alcazar for a few months a few years ago when Mr. Thompson had some difficulties with his girlfriend. Mr. Alcazar indicated that there were issues with that arrangement raised at the time by his landlord who objected to Mr. Alcazar having more than the permitted number of residents. Mr. Alcazar appeared confident that he would have no problems of this nature this time but admitted that he has not raised the question with his landlord.
[30] Mr. Alcazar was examined about the degree of influence he has been able to bring to bear upon Mr. Thompson in the past. For example, he arranged for Mr. Thompson to secure employment on one occasion, a job that was apparently lost due to Mr. Thompson’s frequent legal troubles. My sense of it was that Mr. Thompson did at times follow his advice, but he was prone to frequent lapses into old habits and bad influences. Of these, alcohol and narcotics appear to have been the most persistent. In Mr. Alcazar’s view, Mr. Thompson’s most recent period of incarceration has brought about some positive changes. Mr. Thompson’s criminal record is a long one to be sure, but the time he has spent in detention awaiting trial this time is far and away the longest period of detention Mr. Thompson has endured.
[31] The foregoing observations regarding Mr. Alcazar are in no way intended to diminish the clearly positive contributions Mr. Alcazar has made and is offering to make in future to help Mr. Thompson. Whatever the outcome of Mr. Thompson’s current legal issues, he will be back in the community at some point and he will need the type of positive, pro-social influences that Mr. Alcazar represents if that reinsertion is to be a successful one. I should be reluctant to rebuff such a potentially beneficial influence if a means can be found to take advantage of it.
[32] I acquired a very favourable view of Mr. Ibrahim as well. Mr. Ibrahim and Mr. Alcazar are acquainted with each other and have known Mr. Thompson for a similar length of time. Mr. Ibrahim is employed as a truck driver. His work takes him out of the city and indeed out of the country for five or six days a week on occasion. He earns a good living doing this and was able to offer a material amount by way of surety - $5,000 – relative to his own savings and earnings capacity. He was also willing to assist in procuring a telephone for Mr. Thompson to enable he and Mr. Alcazar to check in with him. He had a similar view to Mr. Alcazar on the subject of the desirability of Mr. Thompson obtaining regular employment in order to assist him in staying clean and sober.
[33] The bottom-line regarding Mr. Ibrahim is that he can offer friendship, support, and some financial supplement to Mr. Alcazar’s limited means. He brings a willingness to check in with Mr. Thompson from time to time and a willingness to spell-off Mr. Alcazar from time to time. However, his ability to provide any level of actual supervision of Mr. Thompson would of necessity be quite limited.
[34] In terms of positive influence, Mr. Ibrahim noted that he has urged Mr. Thompson to seek anger management counselling in the past. He believed that Mr. Thompson had at least begun to pursue some counselling in that direction, but was unable to say whether this had been pursued by Mr. Thompson to anything like completion.
Issue to be determined
[35] Has Mr. Thompson discharged his burden of demonstrating that his continued detention is not justified on one of the grounds mentioned s. 515(10) of the Criminal Code?
Discussion and analysis
[36] This is the first time the matter of Mr. Thompson’s detention has been brought forward for review by a judge. There are no prior judicial decisions involving Mr. Davidson’s detention to be considered nor is there any requirement to establish a change of circumstance.
[37] The Crown relies solely upon the secondary and tertiary grounds in opposing Mr. Thompson’s release. While this is a reverse onus case, the application of the reverse onus operates to shift the burden of proof but does not change the question being examined nor the Charter-protected context in which it is examined. Mr. Thompson continues to benefit from the presumption of innocence and, along with all detainees, to the Charter-protected right not to be denied bail without just cause. In all cases, the detention of Mr. Thompson can only be justified in one of the limited circumstances prescribed by s. 515(10) of the Criminal Code.
Secondary Ground Concerns
[38] Section 515(10)(b) of the Criminal Code provides that detention is justified where it is “necessary for the protection or safety of the public, including any victim of 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”.
[39] I begin by examining the nature and degree of the secondary ground concerns that exist in this case and then consider the degree to which the proposed release plan is able to mitigate those concerns.
[40] Unfortunately, Mr. Thompson’s extensive criminal record provides an abundance of evidence of the very real and pressing secondary ground concerns urged upon me by the Crown. He has been in almost constant trouble with the law his entire adult life.
[41] Mr. Thompson has amassed a total of 39 convictions since 2002. His first conviction – from 2002 – came when he was just 21 years of age. This is to say that his record spans almost the entirety of his adult life (he is now 41 years of age). Twelve of these offences can be characterized as offences involving violence, the most recent having occurred less than three months before the incident giving rise to the current charges. Violent offences include robbery, carrying a concealed weapon, assault causing bodily harm, weapons dangerous and assault with a weapon. Other offences include possession of narcotics, possession for the purpose of trafficking, possession of proceeds of crime, providing a false name for a recognizance, breach of recognizance and breach of probation terms.
[42] Among the breach of probation convictions on Mr. Thompson’s record, there are two breaches arising from him coming to the very building in which it is now proposed that he reside in breach of probation terms requiring him to stay away from it. On December 5, 2014, Mr. Thompson pleaded guilty to an assault upon a resident of that building, Mr. A. Among the terms of the sentence imposed upon him at that time was a term that he not be present in the building for a period of two years. In the last year of that prohibition, he was found in the building on two separate occasions in breach of that order. He received a sentence of two days and one day in jail respectively in relation to those two convictions.
[43] Emerging themes of particular concern in Mr. Thompson’s record in terms of the secondary ground are:
a. Violence: Mr. Thompson has convictions for assault both upon acquaintances and upon perfect strangers;
b. Use of weapons: Mr. Thompson has made frequent use of weapons in his criminal assaults, including various weapons of opportunity. Indeed, when Mr. Thompson gave a statement to police in this case, he denied any involvement in the shooting of Mr. Young stating that stabbings were part of his “MO” but shootings were not; and
c. Unwillingness to comply with court orders: court-imposed prohibitions appear to have had little impact upon Mr. Thompson’s behaviour over the years. A number of breaches of recognizance or probation terms feature in his record, two of which I have outlined above. Further, at the time of the June 24, 2018 incident giving rise to the current charges, Mr. Thompson was at large under a recognizance that prohibited him from being within 100 metres of a building that was literally across the street from where the shooting of Mr. Young occurred. That prohibition had been imposed because Mr. Thompson attacked a door in the building with a hand-axe after being denied entry. The photographs of the door and the hand axe in question amply demonstrate the violence of that particular attack even if the victim was a door and not a person. While Mr. Thompson was not charged with breach of that recognizance, the evidence before me very clearly demonstrates that he was in breach of that term of his recognizance on the night of June 24, 2018. Mr. Thompson’s history provides no basis for confidence that he will voluntarily abide by court-imposed restrictions upon him and ample reason to conclude that he very likely will not without strict supervision; and
d. Frequency: Mr. Thompson’s record contains few gaps of any material length of time that are not accounted for by his frequent periods of incarceration.
[44] The defence suggested that Mr. Thompson’s lengthy record is actually quite typical of an addict such as Mr. Thompson. While I have grave doubts that his history is quite as representative of the class as suggested given the frequency, number and degree of violent incidents recorded, characterizing this record as “typical” does nothing to mitigate the very real secondary ground concerns present in this case. However, the defence urged me to discount that concern by reason of the nearly two years of sobriety that can be looked to as a break in the pattern of conduct and one of its significant contributors. That is not a leap of logic that I find I can make.
[45] First, Mr Thompson’s period of enforced sobriety has not been accompanied by any serious and diligently pursued programme of treatment, be it for his addiction issues or his anger management issues. In making this observation, I am not casting aspersions upon him: I have no information as to what programmes he had access to or the degree to which the pandemic emergency has impacted their availability. I simply observe that there is no evidence that any underlying issues that have contributed to his past behaviour have been addressed during the almost two years he has been in custody.
[46] Second, and related to the first, it would be foolish to assume that even a lengthy period of enforced sobriety is a reliable indicator of the behaviour to be expected once released. To the degree that sobriety is an important ingredient in mitigating Mr. Thompson’s secondary ground issues, there is simply nothing to say that voluntary sobriety alone can be relied upon when compulsion has ceased. Mr. Thompson has had past periods of sobriety through detention – not this long, but lengthy nonetheless – and went on to re-offend and resume his substance abuse, sometimes after only the briefest of interludes.
[47] Based on the totality of the evidence before me, I am satisfied that Mr. Thompson presents as someone who has a substantial likelihood of committing further criminal offences by reason of his lengthy criminal record, his propensity towards violence and his demonstrated unwillingness to abide by court orders or solemn undertakings. That substantial risk leads me to the preliminary conclusion that his detention is necessary for the protection or safety of the public. He is not someone who could be safely released on his own recognizance, for example. That conclusion is by no means the end of the inquiry. The issue I must resolve is whether the risk I have identified is able adequately to be mitigated by the release plan proposed. In examining that question, “adequately mitigated” must not be equated to “mitigated completely or with certainty”.
[48] Does this release plan bring the likelihood of further criminal offences being committed below the threshold of “substantial likelihood” such that detention is not necessary for the safety or protection of the public?
[49] I have found this decision to be a very difficult one to reach. There are risks associated with the release plan to be sure. While I may have doubts that the sureties appreciate the magnitude of the task they have volunteered to undertake, I have confidence both that they will report breaches of release terms faithfully and promptly and that they will collectively be in a position to observe such breaches if as and when they occur. I was given pause by Mr. Alcazar’s response under cross-examination that he would respond to any breach of release terms dealing with alcohol or drug consumption by putting Mr. Thompson into treatment. He has since discussed the matter with applicant’s counsel and I am now satisfied that he does understand that his job is not to assess the seriousness of breaches but simply to report them. That conclusion, in my mind, smooths over many of the weaknesses of this plan and brings it within the realm of reasonable mitigation of the clearly present secondary ground risk.
[50] Among the risks present here are Mr. Alcazar’s right to house Mr. Thompson for a potentially lengthy period of time under the terms of his lease. The building is a public housing building and there are rules and regulations to be respected by those living within it. There is certainly some risk that the landlord may take steps to evict Mr. Alcazar should objection be taken to Mr. Thompson’s presence. The short answer to this objection is that this is a bridge to be crossed when we get to it if ever. Should the landlord take steps to cause Mr. Thompson to be removed from the building, then Mr. Alcazar may have to return Mr. Thompson to custody or propose an acceptable alternative plan. That is a risk that Mr. Alcazar and Mr. Thompson are prepared to take. This alone should not bar Mr. Thompson’s release in my view.
[51] The second significant risk to this plan concerns the presence of Mr. A. in the building. I was and am greatly troubled by this circumstance. Mr. A. was the victim of a violent assault in June 2014 for which Mr. Thompson received a custodial sentence of eight months plus two years probation as mentioned earlier. The assault included threatening Mr. A. with a box cutter knife in a common area of the building and hitting him with a bottle over the head causing injuries serious enough to require hospitalization.
[52] Mr. A. is understandably apprehensive about the prospect of Mr. Thompson returning to his building. On the other hand, Mr. Thompson’s probationary bar from visiting the building expired in 2016 and he was frequently in the building thereafter until his arrest in July 2018. Mr. A. indicates that he kept his distance from Mr. Thompson but there were no incidents reported. No peace bonds were sought or obtained, for example. As disinclined as I might be to put aggressor and victim in the same building were a choice available, there simply is no other release option that is available. I cannot on the evidence before me conclude that Mr. Thompson poses a particular risk to Mr. A. at this time even if Mr. A. is apprehensive about the subject. While not an ideal outcome, I cannot view this as a valid secondary ground objection to the plan either.
[53] I have assumed in my analysis that the building in question does continue to house many of the bad influences upon Mr. Thompson’s behaviour that he has associated with in the past. As noted earlier, I am nevertheless satisfied that Mr. Alcazar and Mr. Ibrahim’s supervision and influence can counteract this draw and prevent him from succumbing to the temptation of slipping back into his old skin – failing which I have confidence that they will promptly notify police.
[54] A further potential weakness that gave me pause in this regard was Mr. Alcazar’s expectation that Mr. Thompson would be finding work soon. This too is a bridge that I have concluded can be crossed when or if we get to it. I have grave doubts that this plan of release will be up to the task of supervising Mr. Thompson should he acquire the excuse to be gone for many hours at a stretch at a workplace. It seems to me that I ought not to detain Mr. Thompson solely because I fear the consequences of him taking up an unknown job with an unknown schedule and at an unknown location. Rather than speculate, I think it makes more sense to impose what are in effect house-arrest terms leaving open the prospect of amending these to accommodate a job prospect if as and when such a prospect is in view and can be examined concretely instead of hypothetically. This speculative objection to the release plan is best left to the future when it can be examined if necessary and in light of actual facts and not mere speculation.
[55] This brings me to perhaps the most significant risk being substance abuse. Mr. Thompson’s criminal history is very tightly co-related to his substance abuse history. Abstinence has been enforced while in detention but there has been no treatment. The risk of Mr. Thompson resuming his criminal ways should he resume his substance-abusing ways is a very significant one.
[56] In answer to questions posed by me, the defence offered to consent to a release term obliging Mr. Thompson to submit to random drug testing. I am advised that home test kits at a modest cost (approximately $17) are available that will test for 8 narcotics including cocaine with a high degree of accuracy based on a urine sample.
[57] The defence suggested such tests should not be imposed more than once per month. My concern with that proposal is that Mr. Thompson would soon calculate that he can operate undetected for several weeks after passing a test. The cost of the tests is not insignificant, but I am disinclined to impose an arbitrary limit to them either.
[58] The proposed release plan, subject to some modest tweaking along the lines described above, is capable of satisfying the secondary ground objection.
Tertiary Ground Concerns
[59] Section 515(10)(c) of the Criminal Code directs me to consider whether the detention of the accused is “necessary to maintain confidence in the administration of justice, having regard to all the circumstances” including the four listed considerations being (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 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.
[60] The defence argued forcefully that the first criterion - the strength of the prosecution’s case – should be resolved in Mr. Thompson’s favour. I have discussed this at some length above and will not repeat those observations here. The Crown’s case is a serious one even if it there are a number of areas where reasonable doubt may ultimately emerge.
[61] This is clearly a serious offence. Mr. Young was brutally murdered, and his death has had a traumatic impact upon the community and upon his family. He had, I am informed, twelve children. Each of these will bear the scars of the loss of their father in such a fashion. The offence involved a firearm and Mr. Thompson faces a sentence potentially up to life in prison.
[62] In relation to these criteria, the defence asks me to note that there is no evidence that Mr. Thompson possessed or even had knowledge of the existence of a firearm in connection with this offence. Based on the conclusions of the preliminary inquiry, I must agree with that submission.
[63] The four listed criteria in s. 515(10)(c) are of course not exclusive. Parliament has directed me to consider all of the circumstances in considering whether detention is necessary to maintain public confidence in the administration of justice. In this regard, the Crown asks me to consider the public’s concern for the well-being of Mr. A. who was the victim of a brutal assault at Mr. Thompson’s hands in 2014.
[64] In my view, the public interest in the administration of justice must be considered from the perspective of a reasonably well-informed member of the public and in the light of the interests being weighed, including the presumption of innocence and the right not to be denied bail on reasonable terms without just cause.
[65] I have concluded that the tertiary ground does not require the continued detention of Mr. Thompson if a reasonable and balanced release plan can be implemented. I have reached that conclusion noting:
a. That the evidence of Mr. Thompson’s role in this crime is of a lesser role when compared to the alleged shooter: There is evidence that Mr. Thompson may have known of a planned robbery but not that he had advance knowledge of or directly participated in the actual shooting of the victim;
b. The crime is undoubtedly a serious one, but Parliament has not imposed a blanket ban on bail for serious crimes - the seriousness of the crime is a factor but alone is not a controlling one
c. Mr. Thompson has been detained for just under two years at this point and the pathway to a trial on the merits remains subject to material contingencies that may delay trial for some time to come; and
d. The incident involving Mr. A. happened almost six years ago and Mr. Thompson was freely able to visit the building in question over almost eighteen months without any prohibitions and without any incidents involving Mr. A.
[66] This case was not pressed before me as a “Covid case” and, in light of the conclusions I have reached regarding the secondary and tertiary ground concerns, I find no reason to address that issue further.
Disposition
[67] For the foregoing reasons, Mr. Thompson’s application to be released will be allowed subject to the following terms:
a. His required sureties shall be Mr. Oscar Alcazar ($3,000 without deposit) and Mr. Hassan Ibrahim ($5,000, without deposit);
b. Mr. Alcazar shall undertake to advise his landlord of the presence of Mr. Thompson in his unit for the duration of his release from detention within seven days of Mr. Thompson’s release and confirm that he has done so to Officer Choe;
c. He shall live with his surety, Mr. Alcazar, at 220 Oak Street #1703 and follow the rules of that house as imposed by Mr. Alcazar;
d. He shall be in the direct company of at least one of his sureties at all times when outside of apartment #1703 at 220 Oak Street, including when in the common areas of that building except in the case of a medical emergency, to attend court or to attend a scheduled meeting of counsel providing that in all such cases Mr. Thompson shall carry on his person the written consent provided for below and travel directly to and from the place indicated;
e. He shall report daily to Hassan Ibrahim - either in person or by phone if Mr. Ibrahim is out of the country;
f. He shall follow any instructions of his sureties with respect to counselling for drugs or other issues, and sign any releases that they deem necessary to enable them to supervise his progress;
g. He shall not possess or consume alcohol or any drugs or any other intoxicants, except with a valid prescription from a medical doctor;
h. He shall not attend at or within 250 meters of 251 Sherbourne Street, Toronto, or on any of the properties collectively known as the Dan Harrison Complex;
i. He shall not have contact with any witness in the case or Warren Farrell, except through counsel for the purpose of preparing his defence;
j. He shall not contact Mr. A. nor remain within ten metres of Mr. A. should he at any time see Mr. A. or become aware of his presence;
k. He shall not possess any weapon as defined by the Criminal Code;
l. He shall not possess any drug paraphernalia;
m. Upon request by Officer Choe or another officer designated by Toronto Police for this purpose, Mr. Thompson shall attend Toronto Police Homicide division with an un-opened home drug kit within twelve hours and in the presence of Officer Choe or the designated officer provide the necessary sample for testing, such testing to be requested not more than eight times in any period of six months unless the test kit is provided by Toronto Police;
n. Mr. Thompson shall be permitted to travel directly to and from (i) any court attendance or scheduled meeting with counsel; (ii) any counselling appointment or (iii) to provide a drug testing sample as permitted in the foregoing conditions providing that he has on his person a signed and dated consent from one of his sureties indicating where he is attending, which release condition permits him to attend and the expected departure and return time, such consent from his surety to provided to any police officer upon request; and
o. Mr. Thompson shall be permitted to seek work with the assistance of his sureties providing acceptance and commencement of any such employment shall be conditional upon court approval of such further release terms as may be required to supervise Mr. Thompson.
[68] I am advised that Mr. Thompson’s next court date is July 6, 2020 and he is remanded to that date.
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S.F. Dunphy J.
Date: June 12, 2020