R. v. Baker, 2020 ONSC 3641

COURT FILE NO.: CR-20-00000198-00BR

DATE: 20200610

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAMION BAKER

Applicant

Andrew Cox, for the Crown

Taro Inoue, for the Accused

HEARD: June 5, 2020

ALLEN J.

REASONS FOR DECISION ON A BAIL REVIEW APPLICATION

TEMPORARY SUSPENSION OF THE COURT AND PROCEDURE ON THE HEARING

1This application was heard and decided in the midst of the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by tele-conference or video conference.

2The parties agreed that this bail review could proceed by way of tele-conference. A registrar and court monitor were present in a courtroom to maintain the court record. An order excluding witnesses and a publication ban were made. The applicant filed affidavits of the proposed sureties and his own affidavit. The parties provided written materials electronically by email and made oral submissions. Viva voce evidence was given by the two proposed sureties. Oaths were administered. The sureties were cross-examined. The officer in charge also attended by teleconference but did not give evidence.

THE CHARGES

3On December 10th, 2018, Damion Baker, with his co-accused, is alleged to have committed fraud over $5,000.00 against Eduardo Steindl. He is also alleged to have been in possession of property obtained by crime under $5,000.00. The allegations are that Mr. Baker and his co-accused used Mr. Steindl’s credit cards without his consent and made purchases and cash withdrawals with the credit card in the approximate amount of $12,000.00.

4Mr. Baker is alleged, on July 6, 2019, to have committed an aggravated assault and robbery of Raymond Cretien. He was also charged with carrying a concealed weapon, a knife. Mr. Baker is also alleged to have stabbed Mr. Cretien in the chest with a knife while attempting to steal his bicycle. Mr. Chretien sustained a punctured kidney, bruised spleen and internal bleeding.

5On August 1, 2019, Mr. Baker was alleged to have fled from the police and engaged in a course of dangerous driving. He was alleged to have driven at a high rate of speed. A police officer in a marked police car pursued Mr. Baker activating his emergency lights. Mr. Baker was alleged to have fled from the officer at a high rate of speed using dangerous and evasive maneuvers.

THE SHOW CAUSE HEARING

6This was and remains a Crown onus case. On February 14, 2020, a bail hearing before Justice Wong of the Ontario Court of Justice was conducted on all three informations. The Crown sought detention on all three grounds of detention. Mr. Baker proposed release under the supervision of two sureties under house arrest. Wong, J. detained Mr. Baker on the secondary ground. She found that the Crown met its onus and that the plan of release was insufficient to address those concerns.

GROUNDS FOR REVIEW

7There are three grounds upon which a court on a bail review can vary an order: (a) where the justice has erred in law; (b) where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor, but not on the basis that the justice would have weighed the factors differently; or (c) where there is a material change in circumstance: [R. v. St-Cloud], at para. 121. A de novo hearing is not appropriate unless there is new evidence adduced at the bail review: [R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 118, (S.C.C.)].

8The Applicant seeks release pursuant to s. 520 of the Criminal Code. The defence mentioned seeking review on the basis of an error of law but did not specify the error or make submissions in that regard. There is nothing to be addressed on that ground.

9The defence also seeks a de novo proceeding based on material changes in circumstance on the basis of the two new proposed sureties, the withdrawal of the dangerous driving/evade police charges and the emergence of the pandemic and its impact on correctional facilities. As will be seen, the defence proposes two new sureties, Mr. Baker’s sister and her husband.

10The Crown opposes the Applicant’s release. The Crown concedes a material change in circumstances in relation to the COVID-19 pandemic. The Crown however, takes the position that Mr. Baker should be detained on the secondary ground.

11The Crown disagrees that the two new proposed sureties and the withdrawal of the driving charges represent changes in circumstance.

12I find the driving charges were serious and involved dangerous and risky behaviour by Mr. Baker while evading the police. Those charges could have garnered lengthy prison terms. The withdrawal of those charges I find amount to a material change in circumstance.

13I do not find the proposal of two new sureties to amount to a material change of circumstance. The evidence is that the sureties were not approached by the defence to inquire whether they might offer themselves as sureties. They were only asked after the show cause hearing whether they would be willing to be proposed sureties. There is no evidence that with due diligence they would not have been available at the time of the show cause hearing.

14I also find that the pandemic in its impact on the inmate populations in Ontario’s correctional facilities has created a material change in circumstance. Mr. Baker is in Toronto South Detention Centre. The pandemic was not under consideration before Wong, J as it did not materialize until after the show cause hearing.

15However, the question is whether there is a basis to find the pandemic personally affects Mr. Baker’s health. There is no evidence of this in Mr. Baker’s evidence, of any particular susceptibility to the virus. He does not mention the pandemic in his affidavit nor do the sureties mention this. I can take judicial notice that Mr. Baker does not fall into the age and health categories that are most susceptible to contracting the virus.

16I do not find COVID-19 is a material change in circumstance in relation to Mr. Baker.

THE SECONDARY GROUND

The Law

17The Crown has the onus to establish detention is required on the secondary ground.

18On the secondary ground, release can be denied for the protection or safety of the public considering whether there is any “substantial likelihood” the accused will commit a criminal offence or interfere with the administration of justice. Substantial likelihood means “substantial risk”, a standard below proof beyond a reasonable doubt: [R. v. St-Cloud].

19The secondary ground is concerned with such matters as the nature of the offence, whether the accused has a criminal record, the strength of the Crown’s case, the nature of any criminal record, whether he has any outstanding charges and whether he has a history of non-compliance with recognizances.

Evidence on Secondary Ground

Affidavit of Damion Baker

20Mr. Baker is age 31. He resided for about a year with his brother in 2017 and 2018 but since then has had no fixed address. He was living a transient existence at the time of the show cause hearing. He stated that he is prepared to reside with his sister Kareisha Dawkins and her husband, Dwayne Dawkins, at 2350 Birchmount Road, #215 in Toronto where they reside with their eight-year-old son.

21During the last three years, Mr. Baker has worked at an auto glass supply company at 2360 Midland Avenue, Toronto. He stated that his employer told him he would be re-hired if he is released from detention.

22Mr. Baker’s affidavit consists of five brief paragraphs. It contains nothing that indicates whether he understands what is expected of him if he is released. He mentions nothing about the proposed plan and the terms of the release, the obligations of his sureties. There is no evidence about his relationship with his sureties.

Dwayne Dawkins and Kareisha Dawkins’ Evidence

23Dwayne Dawkins, age 34 years, is Mr. Baker’s brother-in-law. Ms. Dawkins is also age 34. They have been married for 11 years. They live together at 2350 Birchmount Road, #215 in Toronto, with their eight-year-old son. They live in a one-bedroom apartment. They explained that their son is currently away with family in Jamaica and should be returning to Toronto in about August of this year. The plan is for Mr. Baker to share a bunk bed with their son in the living room. Ms. and Mr. Dawkins will share the bed in the bedroom.

24Mr. Dawkins and Ms. Dawkins indicated that they have had very infrequent communication with Mr. Baker up to the present. They estimated they had only spoken to him a few times over the past two years. They do not have a close relationship with him. They do not know his friends. Mr. Dawkins does not have a phone number for Mr. Baker or any way to contact him. Neither surety knew where Mr. Baker has been living and agreed that before detention, he was transient.

25Ms. Dawkins said despite the fact that her brother committed more crimes after she spoke to him about his conduct, she believes he would listen to and obey her if she were to become his surety.

26Both sureties were laid off from their jobs due to the pandemic. Mr. Dawkins works as a carpenter for a company that operates on construction sites throughout the GTA. When he returns to work, he will be away from home Monday through Friday from 8:00 a.m. to 5:30-6:00 p.m. He earns about $2,600.00 per month. Mr. Dawkins does not know when he will return to work but acknowledges that it could be soon.

27Ms. Dawkins works as an Early Childhood Education worker at a daycare centre earning about $2,400.00 per month. She works Monday through Friday and will be away from home from 6:30 a.m. to 5:30 p.m. when she returns to work. Both are receiving Central Emergency Relief Funds during the layoff, Mr. Dawkins $2,000.00 and Ms. Dawkins, $1,800.00.

28The plan of supervision is for 24/7 supervision of Mr. Baker in their home. Both sureties will be at home during the layoff and state they will be able to control his behaviour and ensure he complies with the terms of bail. There are no cameras or security alarm system in their home.

29When the sureties return to work, they will be supervising him by phone. Both say they will be at liberty at work to make periodic calls to ensure he is at home. They admitted that they have to be able to trust Mr. Baker that when he says he is at home that this is where he is. The sureties acknowledged that if he does not answer the phone when they call, he could be away from the home. The sureties will have to be able to know when he does not answer his phone whether his phone is off, uncharged and whether that means he is trying to evade them, in order to know whether they should call the police or not. They agreed they will not know, if a no contact order is in place, whether he is in contact with persons like his victims and co-accused or in breach of a geographical restriction.

30In terms of income and expenses, rent is $1,745.00 per month. The sureties have $4,000.00 in savings. Mr. Dawkins has over $11,000.00 in debt and Ms. Dawkins has over $16,000.00 in debt. Each surety is prepared pay $3,000.00 for security on release.

Conclusion on Secondary Ground

31The nature of the crimes is relevant.

32In December 2018, with his co-accused, Mr. Baker is alleged to have committed a fraud against a man, Eduardo Steindl. They used his credit card and made about $12,000.00 in cash advances and purchases. He is charged with fraud and possession of proceeds of crime over $5,000.00.

33The facts of those offences are as follows.

34Mr. Baker and his co-accused engaged in a total of 65 transactions, both attempted and declined, which resulted in a $12,000.00 fraud. The majority of the transactions were cash advances from bank machines. The police recovered a video of one of his co-accused using the credit card purchasing alcohol at an LCBO. They are also captured on video purchasing men’s shoes at a shoe store.

35Some eight months later in July 2019, Mr. Baker is alleged to have committed an aggravated assault and robbery of another man, Raymond Cretien outside an apartment building at 251 Sherbourne Street, Toronto. He stands further charged with carrying a concealed weapon, a knife.

36The facts of those offences are as follows.

37Mr. Baker was familiar with Mr. Cretien. They had had past disputes. Mr. Baker approached Mr. Cretien and pulled out a knife that he was carrying with him and stabbed Mr. Cretien in the left side of his chest. He tried to steal the victim’s bicycle but did not succeed. He instead grabbed a knife sharpening tool on the bicycle. He then fled the area on foot. Mr. Cretien sustained injuries to his kidneys and spleen and internal bleeding.

38Mr. Cretien subsequently engaged in a photo line-up and identified Mr. Baker as his assailant. Video surveillance outside the building at 251 Sherbourne captures the movements of a male the Crown says is Mr. Baker approaching Mr. Cretien carrying an object. According to the Crown, the male appears to stab Mr. Cretien at this point.

39The strength of the Crown’s case is also a pertinent consideration.

40On the fraud and possession of proceeds of crime charges the Crown’s case is relatively strong. There is some video surveillance and other documentary evidence recovered by the police. It is not clear at this point whether there are witnesses at banks, the LCBO and retail stores where items were purchased that could provide the Crown with evidence.

41On the aggravated assault, theft and carrying a concealed weapon charges the Crown’s evidence is also relatively strong. Mr. Cretien was familiar with Mr. Baker before the attack. He identified him in a photo array lineup after the incident. The depictions on video surveillance are not the clearest in parts. However, combined with Mr. Cretien’s evidence, it could be that the Crown’s perspective on what the video depicts could be accepted.

42Whether Mr. Baker has a criminal record and the nature of the record are also relevant. Mr. Baker does not have a lengthy criminal record and he is a relatively young person. Those are positive factors. His criminal record involves convictions from February 2017 for trafficking drugs and possession of proceeds of crime. Whether there are charges related to non-compliance is also relevant. Mr. Baker has a conviction from March 2018 for failure to comply with an undertaking given to a police officer. This shows a disrespect for promises he has made with respect to terms of recognizance imposed on him. His current crimes occurred within two years of his previous convictions.

43Mr. Baker’s criminal record and current charges reveal that Mr. Baker has a propensity for a variety of types of crime, violent assaults, robberies, possession of criminal proceeds, drug dealing and non-compliance. This is pertinent to looking at the contextual circumstances of the charges Mr. Baker is currently facing and the risk of him committing further crimes.

44Given the serious nature of the crimes Mr. Baker is facing, a solid and reliable plan of supervision is essential. I find the plan of supervision is wholly inadequate to satisfy the requirement of preventing a substantial likelihood of Mr. Baker committing further crimes and interfering with the administration of justice.

45The sureties, in spite of their goodwill and honest intentions, do not know Mr. Baker in his criminal lifestyle. They have had little contact with him over the past few years. They do not know his friends and associates. They have not known where he has lived. The sureties do not appear to be sufficiently familiar with the number, nature or seriousness of his crimes. The lack of familiarity presents a risk that Mr. Baker will not listen to and comply with the rules imposed in a plan of supervision.

46I am particularly concerned that the plan, as proposed at the hearing, involves what would be put in place when Mr. Dawkins and Ms. Dawkins return to work. I must take the whole proposed plan into consideration in determining whether release can be ordered. Mr. Baker will be left at home for up to ten hours Monday through Friday each week. Supervision will be done by phone calls by the sureties. There are no cameras or security system in the home that could be helpful in scrutinizing Mr. Baker’s compliance with the terms of release. The lengthy periods of Mr. Baker being unsupervised adds increased risk of re-offence.

47I am also concerned about the sureties’ financial capacity to pledge $6,000.00 and to support an added person in their household. Their incomes are modest, and they have combined debt of some $27,000.00.

48In the result, I find the Crown has satisfied its burden to demonstrate a substantial likelihood that Mr. Baker will commit an offence or interfere with the administration of justice if released.

DISPOSITION

49The application is denied. Damion Baker will remain in custody at the Toronto South Detention Centre.

B.A. Allen J.