Court File and Parties

COURT FILE NO.: CR-20-00000252-00BR DATE: 20200723 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANDRE CUNNINGHAM

Counsel: K. Rogozinski and C. Igwe, for the Crown A. Stastny, for Mr. Cunningham

HEARD: 16 July 2020

S.A.Q. Akhtar J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] The applicant faces charges of Attempted Murder, Possession of Loaded Firearms, Discharge Firearms and related offences.

[2] On 10 February 2020, the applicant was ordered detained at the courthouse on the secondary and tertiary grounds of s. 515(10) of the Criminal Code. He now applies for a bail review alleging the Justice of the Peace committed errors in principle in making the detention order. In the alternative, the applicant submits there has been a change of material circumstances because of the COVID-19 pandemic and the availability of electronic monitoring.

The Crown’s Allegations

[3] The Crown alleges that on 30 October 2019, the applicant, along with two other males, Malik Mohamed and a young person hereinafter referred to as “Y”, entered a residential low-rise apartment building situated at 70 Clearview Heights, Toronto. The three males made their way to the second floor via the building stairwell, stopping at the hallway door. The applicant passed a semi-automatic handgun to Mohamed who, joined by Y, proceeded to fire numerous shots into the hallway at a group of young persons.

[4] All three men fled the scene leaving five victims suffering gunshot wounds to their legs, buttocks and abdomen.

[5] Investigating officers attended the building and obtained surveillance video from the stairwell which recorded the incident.

Did the Justice of the Peace Commit Errors in Principle?

[6] The applicant alleges two errors committed by the Justice of the Peace which had a material impact leading to his detention.

[7] First, he says that the Justice of the Peace misapprehended material evidence regarding his personal background.

[8] During the course of the hearing, the bail Crown (not Ms. Rogozinski or Mr. Igwe) informed the court that the police had received information of the applicant’s possible membership of a gang called the "G2M" or "Goonies to Mobsters" based in the Weston Road and Lawrence Avenue West area. However, the Crown made clear that it would not be relying on this information as he felt the strength of the Crown’s case “is independent to that information in the view of the Crown”.

[9] Regrettably, when rejecting the applicant’s parents as appropriate sureties, the Justice of the Peace referred to their lack of knowledge of the applicant’s “criminal activity which involved guns and gang activity”. In light of the Crown’s position, there was no basis to make this finding.

[10] Secondly, the Justice of the Peace found that the mother's ability to act as a surety was devalued by her denial that the person depicted on the surveillance video was her son. The Justice of the Peace found this to impact on her credibility as a person of authority in relation to the applicant. However, the mother did not provide that evidence. On the contrary, she agreed that the person seen on video did look like her son although she was “not sure it’s him”.

[11] In my view, these two errors are sufficiently material to warrant a new de novo bail hearing.

Secondary Ground Concerns

[12] By virtue of the nature of the charges (attempted murder with a firearm and discharge firearm), s. 515(6)(a)(vii) of the Code places the onus on the applicant to demonstrate why his continued detention is not justified.

[13] The applicant advances the same plan put forward in front of the Justice of the Peace along with the additional component of electronic monitoring. The applicant points out that the Justice of the Peace found the plan to be adequate even though he ultimately denied bail based on the adequacy of the sureties.

[14] The Crown, on the other hand, submits that notwithstanding the errors, the Justice of the Peace’s conclusion was correct. It argues that the applicant’s plan fails to satisfy the secondary and tertiary grounds and that the application should be dismissed.

[15] The secondary ground set out in s. 515(10)(b) of the Code justifies detention where it is “necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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”.

[16] The court is mindful of the fact that the applicant is presumed innocent of the charges at this stage of the proceedings. I must, however, have regard to the strength of the Crown’s case when determining potential release.

[17] The Crown’s case is largely based on the surveillance videos recording the applicant leaving his apartment building and entering the stairwell at 79 Clearview Heights. At trial, the Crown intends to tender the video and ask the trier of fact to conduct an identification of the applicant pursuant to the principles in R. v. Nikolovski, [1996] 3 S.C.R. 1197.

[18] I have been provided with colour photographs taken of the applicant taken upon arrest. I find he bears a striking resemblance to the suspect handing the gun to Mohamed on video before the shooting begins. It is worth noting that the applicant appears to have a distinguishing feature of a discolouration of his lip which is also apparent on the suspect in the video. The Crown also submits that the videos of the applicant leaving his residence capture him wearing identical clothing as the suspect on the shooting video.

[19] The Crown, at this stage of proceedings, appears to have a very strong case.

[20] The applicant is 21 years of age and has a criminal record which includes a conviction on 23 April 2018 for Theft Under $5000 for which the applicant received a conditional discharge and a probation order of six months. In addition, the applicant was convicted of two charges of Trafficking Cocaine on October 1, 2019 and sentenced to a 90-day intermittent prison sentence accompanied by a probation order of one year and a s. 109 order prohibiting him from the possession of weapons.

[21] The applicant relies on the same sureties - his parents - who testified at his bail hearing in the Ontario Court of Justice. His mother, Tamara McKenzie, and father, Barrington Cunningham, are prepared to pledge $10,000 to ensure their son’s release. The plan is to have the applicant live with his parents at all times and be subject to house arrest conditions.

[22] Ms. McKenzie is employed as a registered nurse and works five days a week from 2 p.m. to 10 p.m. Her husband is usually employed as a pipe welder but his job opportunities have been restricted due to the COVID-19 pandemic. In his affidavit, he states that he will be returning to full time work in the near future. Barrington Cunningham says that in normal work hours he would work in the mornings and return home by 4 p.m.

[23] Both parents wish to take advantage of the electronic monitoring services offered by the provincial government or, in the alternative, through the services of Recovery Science Corporation.

[24] Ms. McKenzie and Mr. Cunningham insist that they will maintain complete control over the applicant and ensure that he stays away from any criminal activity. They maintain that between the two of them, they can keep an eye on the applicant “24/7”.

[25] I do not doubt either prospective surety’s sincerity. However, in light of the timing and circumstances of the allegations, I have no confidence that they will be able to adequately supervise the applicant.

[26] At the time of the events, the applicant was living with both sureties. He was serving an intermittent sentence as a result of the drug convictions and had been forbidden by court order to possess any weapons. Both parents testified at the bail hearing that they held discussions with the applicant on his future conduct. They agreed that they had cautioned him on the terms of the probation (which also contained a no weapons condition) and the s. 109 order. In response, the applicant had assured them that he would follow those terms. Ms. McKenzie and Mr. Cunningham accepted the applicant’s assurances because they felt he respected them.

[27] Unfortunately, these very serious allegations supported by highly persuasive evidence demonstrate that this belief is misplaced. The applicant would be unlikely to listen to or accept supervision from his parents.

[28] The shooting took place less than a month after the applicant received his sentence. It occurred whilst the appellant was residing with his parents, serving a jail sentence and subject to court orders not to possess weapons. It also happened after the applicant had promised his parents that he would follow each and every condition with which he had to comply.

[29] Moreover, both parents at the bail hearing seemed to know very little about who their son associated with outside the home. They were unaware of the co-accused, and, when Ms. McKenzie was asked about the applicant’s friends, she replied that she had “met a couple” in the past.

[30] I also agree with the Crown that the plan put forward has in some ways weakened from the original bail hearing, as Barrington Cunningham may well be working full time in the months to come as the economy and jobs begin to return to some kind of normality.

[31] I have already commented in another case on the potential uses of electronic monitoring and its limitations: R. v. Osman, 2020 ONSC 965. I restate my conclusion: electronic monitoring is only useful in conjunction with a strong supervisory plan. In this case, despite the well-intentioned sureties put forward in this case, I find the plan to be lacking.

[32] For these reasons, I find that there is a substantial likelihood of the applicant re-offending if released and he is detained on the secondary ground.

The Tertiary Ground

[33] Section 515(10)(c) sets out the following four factors to consider when deciding whether detention is necessary to maintain confidence in the administration of justice:

(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.

[34] In R. v. St-Cloud, 2015 SCC 27, the Supreme Court of Canada explained that the tertiary ground must be considered independently of the secondary ground. The question for the court is whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

[35] The four factors in s. 515(1)(c) are not exhaustive. Other factors may also play a part in deciding whether the tertiary ground requires detention. It is also worth remembering that the four factors must be analysed together and not separately: R. v. E.W.M. (2006), 223 C.C.C. (3d) 407 (C.A.), at para. 31. However, where all four factors have “maximum force” detention is “entirely to be expected”: E.W.M., at para. 32.

[36] In this case, all four factors are significantly engaged. I have already indicated that the Crown has a very strong case against the applicant based on the videos recording the events of 30 October 2019. No one can question the seriousness of the offences and its potential consequences where a firearm was discharged several times into a crowd of unsuspecting people. Finally, if convicted, the applicant faces a lengthy sentence.

[37] The applicant relies on R. v. J.S., 2020 ONSC 1710, as an argument that the current COVID-19 pandemic impacts the tertiary ground assessment and adds considerable weight to his release. It is clear that the pandemic is a factor to be considered but does not override the main considerations set out in s. 515(10)(c) of the Code: R. v. Jesso, 2020 ONCA 280, at para. 36; R. v. Omitiran, 2020 ONCA 261, at para. 26.

[38] Thankfully, the fears of a widespread outbreak of the virus in prisons have not been realised. Moreover, I have no evidence of any COVID-19 cases in the institution in which the applicant resides, which is an important consideration: R. v. S. M., 2020 ONCA 427, at para. 26. Nor does the applicant have any underlying health issues which would have more deleterious effects if he were infected, as was the case, for instance, in R. v. Kazman, 2020 ONCA 251.

[39] For these reasons, the applicant is ordered detained on the secondary and tertiary grounds.

S.A.Q. Akhtar J. Released: 23 July 2020