Court File and Parties

COURT FILE NO.: CR-18-1201-AP DATE: 2020 07 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Agatiello for the Respondent Crown

- and –

TYSON HENRY C. Levien for the Applicant

HEARD: July 2, 2020

PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES

BAIL REVIEW JUDGMENT

D.E HARRIS J.

[1] This is a defence bail review under Section 520 of the Criminal Code from the decision of Justice K. Wells dated April 2, 2020 detaining the applicant on both secondary and tertiary grounds of bail.

THE OFFENCES

[2] The charges in this case are very serious. It was a reverse onus situation. The allegation is that on March 13, 2018 at 9:15 a.m. the applicant was driving a stolen G37 Infiniti car. He sprayed 8 bullets from a .40 calibre Smith and Wesson handgun into a gold BMW parked in the driveway of a Brampton residence at 79 Teal Crest Circle. Some of the bullets went into the garage as well. The police say that a known gang member lives in this home.

[3] Minutes before this, the Infiniti had been recorded on video backing into a car in the driveway of another home just a few doors away. It then drove to the target residence, remained parked on the street for about a minute, and then drove-by slowly while firing at the residence. It then sped off. There is video recording the first incident and video recording the second but from a house across the street.

[4] Fifteen minutes after the shooting, at 9:29 a.m., the Infiniti was involved in an accident with a white Ford F150 near Murray Street and Williams Parkway in Brampton. The incident was caught on two different dashcams. The Infiniti failed to remain and fled the scene, followed by other vehicles. The driver lost control of the Infiniti and two occupants ran from the car. There is high quality video documenting this as well. The man said to be Mr. Henry exists from the driver’s seat and is wearing a distinctive yellow and black jacket and sneakers which have what are said to be unique markings.

[5] At 9:50 a.m., Mr. Henry is videotaped in a near-by Rona store. He speaks to an employee and then uses the bathroom, exiting the store soon afterwards. By this time, the police tactical and canine units were called in to apprehend the suspects. At 10:08 a.m., Mr. Henry was arrested not far from the Rona store. A yellow jacket was found in the general vicinity of Mr. Henry’s flight path. It appears similar to the jacket seen worn by the Infiniti driver running from the car who is alleged to be Mr. Henry. It is at present being tested for Mr. Henry’s DNA.

[6] There is little doubt that the shots were fired from the Infiniti. Shell casings were found in the car which were identified as coming from the same gun as the bullets found at the scene of the shooting. The video evidence also clearly identifies the Infiniti from the scene of the shooting as the same car from the hit and run accident some 15 minutes later.

[7] The Crown’s case to put Mr. Henry in the Infiniti is strong. When the driver flees the car, he is wearing the yellow and black jacket and relatively distinctive running shoes. When Mr. Henry is arrested, he is wearing the supposedly distinctive shoes but is not wearing the yellow jacket. The yellow jacket is found not too far from where the Infiniti is abandoned. As well, three grains of gunshot residue (GSR) were found on Mr. Henry’s hands after arrest. This was not known at the time of the original hearing. Although the GSR finding does not mean Mr. Henry fired a gun, it places him in the proximity of a gun when it was fired or handling a gun. Lastly, Mr. Henry was arrested not far from the abandoned Infiniti and not long after it was abandoned.

[8] While it was argued at this review that there could have been more than just two people in the Infiniti, there is a reasonably strong circumstantial inference against this submission drawn from the fact that only two men ran from the car. It can also be inferred that the person driving the car was the person alleged to be Mr. Henry as that person exited from the driver’s seat in the driver’s seat when the car was abandoned.

[9] Mr. Henry is charged with several firearms offences the most serious of which is intentional discharge of a firearm under Section 244.2(1)(a) of the Code with a maximum of 14 years imprisonment. He is also charged with dangerous driving and fail to remain. The case on these charges is also strong. The possession of property obtained by crime allegation—i.e. the possession of the stolen Infiniti--is weak because it was apparently stolen two months before and the inference that Mr. Henry knew it was stolen at the time he was allegedly driving it is tenuous.

MR. HENRY’S BACKGROUND

[10] Mr. Henry has always lived in the same house with his mother, grandmother and his siblings. He is 20 years old and has been granted two conditional discharges in the past: one in 2018 for dangerous driving, including a year driving prohibition and one year probation and, was found guilty just before these allegations, on February 13, 2020, of possession of a stolen credit card, possession of property obtained by crime and possession of drugs. Mr. Henry has been working sporadically through a temporary agency. He did not finish high school.

JUSTICE WELLS’ DECISION

[11] Justice Wells detained on both the secondary and tertiary bail grounds. On the secondary grounds, the reason was that Mr. Henry’s proposed surety, his mother Phillipa O’Brien, was not suitable. She had little awareness of what was going on in her son’s life and did not know much about his previous charges. While surety for her son in the past, she went on a several week vacation. In addition, Justice Wells found that she was dismissive of these charges and the evidence against her son (paras. 17-20).

[12] Justice Wells held that because the home that was shot up with the handgun was that of a gang member and was in relatively close proximity to Mr. Henry’s residence, there was a prospect that if released there could be retaliatory action by the gang member, jeopardizing Mr. Henry and the other members of the household, including his younger siblings (para. 21). Although nothing much turns on it, I am doubtful whether this is a proper consideration. The secondary ground justifies detention for the “protection or safety of the public… including any substantial likelihood that the accused will…commit a criminal offence.” The focal point of the secondary ground are offences which may be committed by the accused, not by third parties. It may well be that the tertiary ground, in its focus on maintaining public confidence in he administration of justice, could take into account the possibility of gang retaliatory violence. But there is no need to decide that in this case.

[13] Lastly, Justice Wells relied on the strength of the Crown’s case, disagreeing with the defence in its attempt to poke holes in it. She found that there were only two people in the car at the material time and Mr. Henry was clearly either the principal or a party to the shooting (para. 22).

[14] On the tertiary ground, Justice Wells emphasized the seriousness of the allegations and held that the pandemic did not change that substantially (paras. 24-25). Evidence that Mr. Henry has asthma was mitigated by evidence from his mother that when he was being held in jail, he told her he did not need his prescribed puffer (para. 26).

THE GROUNDS FOR REVIEW

Is there a Material Change of Circumstances?

[15] Counsel argues a material change of circumstances based on several circumstances. Mr. Henry’s grandmother, Lilianne O’Brien, is now being put forward to serve as a surety along with his mother who had been proposed at the original hearing; the surety amount is greatly increased; the house arrest bail is more stringent and GPS electronic monitoring is now proposed.

[16] In my view, at the least, the defence succeeds in showing a material change on the basis of the new surety. In the leading case of R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 122-139, the parameters of a material change of circumstances were explored by the Chief Justice. The new evidence must be responsive to and alleviate a flaw identified by the judicial officer at the original hearing: see St. Cloud at para. 137 (“the new evidence must be such that it is reasonable to think… that it could have affected” the result). Many judges before and after St. Cloud have emphasized the importance of the responsiveness requirement: see my judgment in R. v. Amagyei, 2018 ONSC 7544, at paras. 14-17.

[17] In the circumstances of this application, the new surety is responsive to the reason bail was originally denied. Justice Wells’ found that the secondary ground onus incumbent on Mr. Henry was not met because his mother was not a suitable surety. The defence have, in order to meet this concern, recruited a new and improved surety. She is a viable surety, although I will have more to say about her in the full review analysis. The offering of a new surety meets head on Justice Wells’ main reason for ordering Mr. Henry’s detention.

[18] The Crown did not argue that this was not a cogent change from the original hearing. It is clear law that new and improved sureties can constitute a change of circumstances: see R. v. Baltovich (2000), 47 O.R. (3d) 761 (Ont. C.A.); R. v. Whyte, 2014 ONCA 268, [2014] O.J. No. 1633 at para. 25. Instead, the Crown argued that the defence had not been duly diligent in putting Ms. Lilianne O’Brien forward; she should have presented at the original hearing. This argument derives from the part of St. Cloud where the Chief Justice imports from Palmer v. The Queen, [1980] 1 S.C.R. 759 with some modifications, the four-part fresh evidence test applicable for the admission of new evidence upon a criminal appeal. The first condition as stated in Palmer is “the evidence should generally not be admitted if, by due diligence, it could have been adduced” at the original bail hearing.

[19] I do not agree that the due diligence condition is an obstacle in this case. Mr. Henry attested in his affidavit on this review that he had asked his grandmother to stand as surety for him at the original bail hearing in front of Justice Wells but she had refused because of the seriousness of the charges. However, the affidavit continues, Mr. Henry was able to persuade her to present herself as surety on this review. Ms. L. O’Brien agreed that this was true in her testimony. She was not significantly challenged on the point by the Crown. It is therefore clear that the failure to put Ms. O’Brien forward had nothing to do with a lack of due diligence on Mr. Henry or his counsel’s part.

[20] Furthermore, in my view, a judge should exercise great care before dismissing a bail review on the basis of a perceived lack of due diligence in gathering and presenting sureties. Justice Hill’s judgment in R. v. Ferguson, [2002] O.J. No. 1969 (S.C.) is often used to buttress an argument against new sureties on review. Justice Hill said at paragraph 17:

As to the first point, the advancement of fresh prospective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

[21] It has recently been held that Ferguson remains good law: R. v. King, 2020 ONSC 1935 at para. 50. With respect, I do not believe it is quite that simple. In my view Ferguson has often been taken well beyond its intended purpose and scope by the prosecution. The first two sentences in the quote above have been emphasized to the detriment of the all-important last sentence. They must be read together. Moreover, the Chief Justice in St. Cloud almost 15 years after Ferguson commented at length on this issue. With respect, attention must be paid the recent pronouncements of the Supreme Court in St. Cloud on the issue of due diligence and new sureties.

[22] In summary, this is what Chief Justice Wagner said in St. Cloud on the subject:

a) Unlike fresh evidence with respect to trial, fresh evidence in the bail context “takes place at the very start of criminal proceedings.” A reviewing judge “must be flexible in applying” the new evidence criteria. The Chief Justice mentioned that after all, under Section 518 of the Criminal Code, the rules of evidence are relaxed at the bail stage: see St. Cloud at para. 129. I would note as an aside that these sentiments are similar to what Justice Doherty (as he then was) said many years ago,

[The bail review provisions] favour flexibility and re-evaluation of the accused's bail status over finality of any particular order made affecting that status.

R. v. Saracina (1989), 47 C.C.C. (3d) 185 (Ont.S.C.), at p.187.

b) In the immediately following paragraph of the St. Cloud reasons, the Chief Justice said that due diligence is to serve finality and order, values essential to the criminal process. The Chief Justice observed that the Crown appellant in St. Cloud was, however, relying on these values in a submission to limit the ambit of fresh evidence on bail. He appeared to disagree with this, saying that bail is “by its nature, very often ‘interim’ and not final.” St. Cloud para. 130.

c) The Chief Justice than said, “A generous and liberal interpretation of the meaning of ‘new evidence’ in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this Court.” (Emphasis Added). It was also emphasized that due diligence is not as important in criminal matters as in civil: St. Cloud at para. 131.

d) The Chief Justice concluded that the criteria to be applied with respect to Palmer due diligence in the bail context is whether the reason the evidence was not tendered is “legitimate and reasonable.” He concluded, “The nature of the release system and the risks associated with it demand no less.” St. Cloud at para. 132.

e) The Chief Justice elaborated at paragraph 133 that it could be unfair to preclude use of new evidence because counsel may not have had ‘the necessary time to analyze it and weigh the advantages and disadvantages of using it [at the time of the original hearing.]” St. Cloud at para. 133. Also see R. v. Daniels (1997), 35 O.R. 737, 119 C.C.C. (3d) 413 (Ont. C.A.)

f) Finally, the Chief Justice described what a lack of due diligence looks like in a bail review and gave two examples (para. 134):

This requirement to show a reason that was legitimate and reasonable means that it will be open to the reviewing judge to refuse to admit new evidence where it is alleged to have actually been in the interest of the accused to drag out the application for release or where the accused is alleged to have tried to use the review to engage in judge shopping. In this way, the conception of new evidence in the context of ss. 520 and 521 Cr. C. reflects both the need to ensure the integrity of our criminal justice system and the need to protect the rights of accused persons in proceedings that are generally expeditious.

[23] The Chief Justice, in response to a Crown argument, had earlier expressed skepticism that defence counsel would hold back evidence with the intention of taking a “second kick at the can” on review. He said, “Detained persons generally do everything in their power to be released as quickly as possible.” (St. Cloud at para. 125).

[24] In summary, the Chief Justice’s words in St. Cloud when tallied up leave little room for a lack of due diligence argument to defeat a bail review tender of new evidence. The examples given of conduct which could disentitle a defendant are tightly restricted. It is true that dragging out an application for release and judge shopping were not likely intended to be exhaustive examples of conduct demonstrating a lack of due diligence. It is unnecessary to delve deeply into what other type of conduct might qualify. It may be that at least some degree of manipulation must be shown. In any case, the bar was set much higher than was understood previous to St. Cloud. The Chief Justice’s discussion in St. Cloud including the test he articulates substantially diminishes the importance of due diligence in bail reviews.

[25] This change is part and parcel of the reinvigorated preference for bail release initiated by the Chief Justice with his judgment in St. Cloud and followed in his subsequent judgments in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 and in R. v. Myers, 2019 SCC 18, 2019, 375 C.C.C. (3d) 293 and by two other recent Supreme Court bail judgments: see R. v. Oland 2017 SCC 17, [2017] 1 S.C.R. 250 and R. v. Zora, 2020 SCC 14. Together the Supreme Court’s bail cases have instigated major advancements in thinking about bail in the last five years. The preference has now tilted much more towards release than heretofore. Besides a renewed emphasis on the presumption of innocence and the cardinal rule being to release criminal accused from custody, the Supreme Court has recognized the vital importance of bail release to an accused from the start to the finish of the criminal process. It has explicitly recognized that there is an incentive to wrongfully plead guilty when an accused is refused bail and the major impact brought about by detention on his or her opportunity to be found not guilty and to properly prepare for trial: Myers at paras. 22, 51.

[26] St. Cloud has not led to open season with bail reviews. There are some inherent controls preventing vexatious and frivolous bail reviews despite the relaxed approach to due diligence initiated by St. Cloud. Even if a material change is shown, that is only a first step towards release. In so far as the phrase from Ferguson of “reshuffling the deck” refers to presenting another surety with the same flaws and in the same position as the original surety, this remains a dead end on a bail review.

[27] Ms. Lilianne O’Brien’s reluctance to come forward initially is inarguably a legitimate and reasonable explanation for why she was not proposed as a surety at the original bail hearing. The introduction of her as a new surety now constitutes a material change of circumstance and opens up the detention order below for a full review.

Has the Applicant Satisfied his Onus on the Secondary Ground?

[28] The secondary ground in Section 515(10)(b) of the Code requires detention of an accused if necessary for the “protection or safety of the public.” The “substantial likelihood” of committing other criminal offences is simply an iteration of one aspect, albeit an important one, of the protection of the public. The overarching standard remains the protection or safety of the public. This standard requires not only a contemplation of the potential incidence of further criminal offence but their potential seriousness as well.

[29] The secondary ground requires an assessment to be made of an accused’s danger to the public. After this assessment is made, the question is whether the plan proposed, including the strength of the surety if one is reasonably required, is sufficient to diminish the risk. The onus to show cause was reversed in this case because of the fact the charges involve a firearm: Section 515(6)(a)(vii) of the Criminal Code.

[30] A house arrest with three residential sureties is proposed. Those sureties are Ms. Lilianne O’Brien, Mr. Henry’s grandmother, his mother as proposed at the original hearing and a cousin, Darren Rachel, who is 19 years old and a student at Humber College. Electronic monitoring is also suggested.

[31] The charges against Mr. Henry are disquieting to say the least. I share Justice Wells’ concern that “[t]he seriousness of these offences cannot be overstated” (para. 24). I am confident that any reasonable member of the community would agree. The recklessness in the firing of a deadly firearm in the immediate proximity of a residence at 9:15 in the morning is chilling. Lives were endangered. The evil which firearms pose and their proliferation is well illustrated by the allegations in this case. It is easy to imagine innumerable scenarios in which a bystander in the area or a person inside the house might have been maimed or killed. The hint that there may have been a gang element involved only adds to the nefarious atmosphere of this crime.

[32] The shooting should not be viewed in isolation. The Infiniti was stolen. It performed a hit and run in a driveway several doors away from the shooting, just before the shooting. There was the hit and run accident after the shooting and the flight from it on foot. This unbridled spree of criminal activity does not bode well for the future. The reckless use of the gun is paralleled by the reckless driving of the car.

[33] Mr. Henry’s criminal record is not a major factor but it is not without some importance. The dangerous driving finding of guilt correlates with the reckless driving allegation in this instance. The drug possession and property offences which were resolved so soon before these offences were allegedly committed suggests that Mr. Henry may well be careening out of control.

[34] To assuage the risk that Mr. Henry poses to the public, a top-notch plan and surety would be required. There is a direct proportionate relationship between the risk under the secondary ground and the requirement of a strong surety and strong plan to reduce the risk to a manageable, tolerable level. The higher the risk, the tighter and more foolproof must be the plan. Justice Wells’ held that Mr. Henry’s mother was not an adequate surety. Defence counsel did not argue otherwise on this review. That puts the burden of a stringent house arrest and vigilant supervision on to Mr. Henry’s grandmother, Lilianne O’Brien. She is 75 year old pensioner. She has been a surety for her grandson in the past and testified without challenge that he complied with his bail. Ms. Lilianne O’Brien would be home almost all of the time. There can be no doubt that she is well-intentioned.

[35] But there are problems. Initially, on the original bail, as recounted above, Ms. O’Brien was too apprehensive about the seriousness of the charges to agree to be surety. She also testified that she had said no because she wanted her grandson to change. Then, on this application, in her affidavit drafted June 29, 2020, she agreed to be surety in the amount of $2000. Mr. Henry said in his affidavit that he had persuaded her to be surety for him. This pledge was on top of the $7000 offered by Mr. Henry’s mother on the original bail and again on this review.

[36] At the outset of this hearing, it was announced that Lilianne had now decided to increase her pledge to $100,000 based on the $300,000 equity in her home, a home she has owned for many years. In cross-examination by the Crown, when asked about these changes of heart, she said that Mr. Henry asked her and because she loves him, she agreed. She professed through her tears that she had always loved him. She played a major role in his upbringing because his mother was often working. I have no doubt that Lilianne’s love for Mr. Henry was a hundred percent genuine.

[37] This raises a common conundrum. There is a fundamental paradox inherent in the concept of surety supervision. If the surety is not someone to whom the accused is closely connected, there will be little or no “pull” of bail: Canada (Attorney General) v. Horvath and Mirza, 2009 ONCA 732, [2009] O.J. No. 4308, at paras. 40-54. The accused will be indifferent whether the surety loses the consideration pledged and may not abide by the surety’s supervision as a result. This would defeat the entire conceptual underpinning of surety bail. On the other hand, against this, in the opposite situation, a surety with very strong ties to the accused may be reluctant to exert their authority and perform their legal obligation if the consequence could be that the accused returns to jail.

[38] Ms. Lilianne O’Brien’s closeness to the applicant Mr. Henry is indisputable. The pull of bail on him is considerable. If Mr. Henry breaches his bail, he will know that Ms. O’Brien, an important person in his life, could lose her home, the home where his siblings and mother live as well. But, viewed from the perspective of the surety, there are real concerns whether Ms. O’Brien will be up to the task. Her hesitancy in agreeing to act as surety and then to make a substantial pledge is troubling. As the Crown argued, it appears that Ms. O’Brien succumbed to pressure from her daughter—Mr. Henry’s mother--and her grandson to act as surety in a significant amount. There is nothing inherently wrong with steps taken to persuade a person to act as surety as long as no undue pressure is exerted. But in my view, Lilianne O’Brien’s hesitancy and uncertainty do not ultimately reflect well on her suitability as a surety. I am far from sure that she wields sufficient authority to be an effective surety.

[39] In addition, during cross-examination, Ms. Lilianne O’Brien said that she knew the allegations involved a firearm. In response to a Crown question she testified that she heard from her grandson that he did not do it. This last part of the evidence should not have been received as it failed to provide useful information to the court with respect to the relationship between the proposed surety and the accused while at the same time infringing on the right of the accused to control his own defence: see my judgment in R. v. K.(K.), 2019 ONSC 1578. But the important point is that it was reasonably clear that Ms. O’Brien did not know much about the allegations. Her affection for her grandson could be an impediment to effective supervision.

[40] In view of Justice Wells’ unchallenged findings, Mr. Henry’s mother who is again proposed as a surety, has a lackadaisical approach to the role of surety, does not know much of what is happening in her son’s life, is dismissive of the details of the alleged crime and was reluctant to share her knowledge of her son’s friends with Justice Wells. Overall, her weaknesses as a surety detract from any plan that would have her as a surety and her son living at home with her. This and the lack of independence and the far from clear suitability of Lilianne O’Brien does not make for a positive environment to support the type of strict supervision required to quell secondary ground concerns with respect to a matter as serious as this. Darren Rachel does not alter this assessment significantly. He is young and a student. His role would be minimal.

[41] With respect to electronic monitoring, it should never be dismissed outright as an aid to ensure bail compliance: R. v. Thanigasalam, 2019 ONSC 5490 at para. 29; R. v. Karbalaei-Heydari, 2019 ONSC 5212; R. v. Doucette, 2016 ONSC 852 at para. 5. While performing no direct preventative function, electronic monitoring specifically deters a bailee from breaching bail and committing other offences. The monitoring will provide virtually conclusive evidence of a breach and powerful evidence to prosecute him or her for any offences committed. Presence can be proven by the electronic monitoring equipment. A rational self-interested accused will be aware of these facts.

[42] Our system puts a good deal of stock in specific deterrence in the imposition of a fit and appropriate sentence. There is no reason it ought not to be of substantial weight in the context of bail as well. Deterrence can be an important restraint on many accused persons. See my comments from R. v. Wheatley, 2018 ONSC 5633 at paras. 27-34 and R v. Rajan, 2020 ONSC 2118 at paras. 31-34 on the subject.

[43] However, a case specific, contextual analysis is required to evaluate electronic monitoring as a comfort for releasing an accused on bail. With offences against the person of the impetuous, out of control variety alleged in this instance, it is far from clear that the threat of detection and apprehension would have the necessary impact. While it adds something to the overall proposal, it is not enough to justify release, in my view.

[44] Lastly, I also have some concern that the handgun used to fire upon the residence has not been recovered nor has the alleged accomplice been arrested. This particular handgun, based on the forensic report, has been used in other crimes. It is not a wild bout of imagination to think that the gun could be passed by the accomplice or someone else back to Mr. Henry. That it remains out in the community is disturbing.

[45] I do not believe that, at least in this instance, COVID-19 has changed anything with respect to the secondary ground. In the result, Mr. Henry’s bail review fails on the secondary ground. He has not shown that his release on the proposed plan would adequately protect the pubic. There is no necessity to examine the tertiary ground. The application is dismissed.

D.E HARRIS J. Released: July 7, 2020