COURT FILE NO.: CR-20-00000248-00BR DATE: 20 200728 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – COLE KIELEY

Frank Schembri, counsel for the Crown David Heath, counsel for the Applicant

HEARD: July 13 and 20, 2020

M.A. CODE J.

Endorsement on a Bail Review

A. Overview

[1] The Applicant Cole Kieley (hereinafter, Kieley or the Applicant) is before the courts on firearms-related charges in two separate jurisdictions in Ontario. The first set of charges are awaiting trial in the Ontario Court of Justice in Newmarket. They relate to the alleged possession of a loaded firearm on April 16, 2019. The second set of charges are awaiting a preliminary inquiry in the Ontario Court of Justice in Toronto. They relate to a very serious shooting incident on October 18, 2019.

[2] Kieley is now detained on both sets of charges. He was originally released on the Newmarket charges, which all involve possession of a loaded handgun. After a contested bail hearing held on April 25, 2019, Justice of the Peace Clark ordered his release on a $3000 recognizance with two sureties and various conditions. As a result of Kieley’s subsequent arrest on the second set of charges, which include attempt murder, discharge a firearm with intent, possession of a loaded handgun, and breach of the prior recognizance, he was ordered detained after a contested bail hearing before Justice of the Peace Cushnie on December 3, 2019. In addition, his bail on the earlier Newmarket charges was revoked pursuant to s. 524 of the Criminal Code.

[3] The present Application before this Court seeks to review the above two detention orders, pursuant to s. 520 of the Criminal Code. It originally came on before me on July 13, 2020 as a teleconference, due to the ongoing closure of most court rooms in Ontario during the Covid-19 pandemic. I advised that I would need to actually see the two proposed sureties and the Applicant Kieley, under cross-examination, before I could make an appropriate bail decision in this particular case. As a result, the Application was adjourned to July 20, 2020 when it resumed as a video-conference. Kieley consented to this manner of proceeding. At the end of the hearing I reserved judgement. These are my Reasons for Judgement.

B. Facts

[4] The facts relating to the Newmarket charge are that the police were investigating the alleged possession of stolen goods from a break and enter in Markham. They obtained a search warrant for a residence in Toronto where stolen goods from the break and enter were believed to be located. Prior to executing the search warrant, the police had the house under observation. They saw a Nissan Sentra arrive at the house with three male occupants. Kieley was the driver. The three males entered the house and the police executed the search warrant. Stolen goods from residential break and enters were seized inside the house in a basement apartment where an adult female resided. The three males, including Kieley, were in the basement apartment with the female resident. All four were arrested in relation to the stolen goods.

[5] The officers questioned Kieley about the Nissan Sentra and he lied, stating that he had given the keys to a friend who was the person who had rented the car and who had now left the residence. The police knew this to be untrue because the residence had been kept under observation since Kieley had arrived while driving the car. After a search incident to arrest, the police found the car keys in Kieley’s possession. The car was registered in the name of a business called Royal Diagnostic. The police conducted a preliminary search of the car in order to determine its rental/ownership status. During this preliminary search they located a knapsack under the driver’s seat. At this point, they discontinued the search and obtained a warrant. When the warrant was executed, a loaded .357 Magnum revolver was found inside the knapsack. A rental agreement for the car was also located inside the knapsack. It was in the name of one Nelson-Malcom. When Kieley was questioned by the police, he gave a statement admitting that he had rented the Nissan Sentra, using a friend’s credit card. He also admitted being the only driver of the car but he denied any knowledge of the gun. No fingerprints or DNA have been obtained from the gun.

[6] At the April 25, 2019 bail hearing relating to the above Newmarket charges, the plan of release advanced by Kieley was that he reside with Cherie Scott who is his mother. He was 24 years old at the time, he had no adult criminal record, and he had always lived with his mother. His parents had divorced when he was four years old and he had lived with his mother and her new partner, Brett Warren, for the last 20 years. Their home was in the west end of Toronto. Kieley had no real work history and he had not completed grade 12. He was dependent on Ms. Scott and Mr. Warren, who both worked during the day at full-time jobs. Because of their jobs, neither of these proposed sureties would be home to supervise Kieley during the day.

[7] It was a Crown onus bail hearing and the Justice of the Peace released Kieley on a $3000 surety bail, with both Ms. Scott and Mr. Warren as the sureties. The bail conditions were that he reside with his sureties, observe a curfew, and not possess any firearms or weapons. The Justice of the Peace expressly warned Kieley, “if you breach any of these terms and conditions…your parents could lose their money and it is much harder to get out the second time if you breach”.

[8] Kieley spent nine days in custody on the Newmarket charges, before his release on April 25, 2019. A month later, on May 21, 2019, his recognizance was varied and Mr. Warren was replaced by Kieley’s father Joseph as the second surety. The purpose of this bail variation was to allow Kieley to reside with his father on weekends and to involve both biological parents in his supervision while he was on bail. One further development in relation to the Newmarket charges was that the Crown eventually withdrew the possession of stolen goods charges as against Kieley. There was no connection between Kieley and the residence where the stolen goods were found, aside from his arrival there in the Nissan Sentra on the day when the search warrant was executed.

[9] Kieley remains charged in Newmarket with three offences that all relate to alleged possession of the loaded .357 Magnum revolver (contrary to ss. 95, 91, and 86 of the Criminal Code). He elected trial in the Ontario Court of Justice and a date was set for a four-day trial, scheduled to be held on May 12 to 15, 2020. That trial date was adjourned by the Court, due to the substantial closure of most courts in Ontario during the Covid-19 pandemic. A new trial date had not yet been set at the time of the present bail review Application.

[10] The second and far more significant set of charges arose on October 18, 2019, after Kieley had been on bail for six months. There is no doubt that a brazen public gun battle took place that day at about 2:30 pm, in broad daylight on the north sidewalk of St. Clair Avenue West, directly opposite Oakwood Collegiate Institute. This is the high school that Kieley had attended when he was a teenager. The gun battle itself was captured on TTC video because the St. Clair streetcar was stopped at Oakwood and its three interior cameras face backwards and capture the north sidewalk where the incident took place. There is other video surveillance evidence capturing events immediately before and after the gun battle, from a Pizza Pizza restaurant and a gelato store on the north side of St. Clair, from a dashboard camera in a car on the south side of St. Clair, and from cameras at the high school. All of this video evidence and some related witness evidence was filed by the Crown on the bail review in this Court. In summary, it shows the following:

• Two teenage high school students at Oakwood Collegiate abruptly left class that morning without permission. They have both been charged in relation to this shooting incident under the Youth Criminal Justice Act and so I will refer to them by their initials, S.P.-F. and O.L.;
• Oakwood Collegiate is on the south-west corner of St. Clair and Oakwood and there is a Pizza Pizza restaurant on the north-west corner of this intersection. The interior video camera at Pizza Pizza shows O.L. seated inside the restaurant after he had left class. The second student, S.P.-F., arrived and can be seen outside Pizza Pizza on the sidewalk. Both O.L. and S.P.-F. are easy to identify because they were wearing distinctive clothing (which was seized later that day), because S.P.-F is overweight and has a distinctive build, and because O.L. ran back to the school where he was arrested immediately after the gun battle. They are both black males. A white male can also be seen on the sidewalk in front of Pizza Pizza standing near S.P.-F. This white male has a distinctive beard and he was wearing some reasonably distinctive clothing (which was also seized later that day). He is undoubtedly the Applicant Kieley. Both of the proposed sureties, Joseph Kieley and Jessica Oake, know Kieley well (they are his father and his step-mother) and they both made Leaney identifications of him, while under oath at the bail hearing, as this white male in the surveillance video who can be seen standing in front of Pizza Pizza just prior to the gun battle. See: R. v. Leaney and Rawlinson (1989), 50 C.C.C. (3d) 289 (S.C.C.); R. v. Brown (2006), 215 C.C.C. (3d) 330 at para. 39 (Ont. C.A.); R. v. John, 2010 ONSC 6085 at paras. 17-37; R. v. Berhe (2012), 2012 ONCA 716, 292 C.C.C. (3d) 456 (Ont. C.A.);
• It can be inferred that there was something going on, as between the two males standing on the sidewalk outside Pizza Pizza (Kieley and S.P.-F.) and the male seated inside Pizza Pizza (O.L.). An unknown black female can be seen entering and exiting Pizza Pizza several times while on her cell phone, standing near O.L. inside and then standing with Kieley and S.P.-F. outside. More importantly, when Kieley and S.P.-F. departed from their position standing in front of Pizza Pizza and walked to the west along the St. Clair West north sidewalk, O.L. exited Pizza Pizza and walked along the same route as the other two males, at a distance behind them. At one point, O.L. raised his arms in a gesture towards Kieley and S.P.-F., as if to ask “what’s going on” or “what’s up”;
• The gelato store video shows Kieley and S.P.-F. passing the front of the store, still walking to the west along the sidewalk on the north side of St. Clair, and it then shows O.L. still following in the same direction about 30 seconds later. This gelato store is located just to the east of the corner of St. Clair West and Crang Ave., only two store fronts away from the corner. In other words, O.L. had almost reached the corner of St. Clair and Crang, when he passed the gelato store, and Kieley and S.P.-F. would have reached the corner about 30 seconds ahead of O.L. The gun battle then occurred at the corner of St. Clair and Crang. The entire incident lasted about 15 to 20 seconds because, after this short interval, O.L. can be seen once again on the gelato store video, this time running back to the east along the same north side sidewalk in front of the store. At this point, O.L. can be seen firing a handgun back to the west towards the corner of St. Clair and Crang;
• The early stages of the gun battle at the corner of St. Clair and Crang can be seen on the TTC streetcar video. These images are not entirely clear and have to be played repeatedly at slow speed because the three camera angles are all different, the events on the sidewalk are at a distance outside the streetcar, and the resolution of the images is not the best. Nevertheless, it is clear that three persons were standing on the north sidewalk at the corner of St. Clair and Crang, facing towards the east, while a fourth person approached them from the east. This fourth person was undoubtedly O.L., based on his clothing, the timing and sequence of his arrival at the corner, and the subsequent events as he fled to the east. It is also clear that S.P.-F. was one of the three persons standing at the corner as his distinctive hoodie is visible and he was undoubtedly shot and wounded during the gun battle. The images of the other two persons standing at the corner as O.L. approached are not as clear. However, the surrounding circumstantial evidence, both before and after the gun battle (summarized above and below), compellingly infers that they were Kieley and one Jamal Smith-Alexander (he is a black male and his rental car was parked on Crang Ave. at the time). Three persons ended up in hospital with gunshot wounds after the gun battle, namely, O.L., S.P.-F., and Smith-Alexander. The only member of this group of four who was not shot was Kieley (who was also the only white male amongst the four persons at the corner of St. Clair and Crang);
• The gun battle itself can also be seen on the TTC streetcar video. Two members of the group of three standing at the corner approached O.L. while the third member of this group walked to the east around behind O.L., so that O.L. was somewhat surrounded. At this point, O.L. pulled out a gun and appeared to fire while, almost simultaneously, one of the members of the group of three also pulled out a gun and appeared to fire. S.P.-F. fell to the sidewalk, as if hit by one of the gunshots, and O.L. turned and fled to the east while firing back at the group of three on the corner. The two members of the group of three who had been standing in front of O.L., one of whom had fired a gun, began to flee in the opposite direction to O.L. They ran a short distance to the north and west, towards the corner of the last storefront at St. Clair West and Crang Ave. However, as they reached the corner of this building, the person with the gun stopped and returned to the south towards St. Clair Ave. where he stood in the middle of the north sidewalk and fired two more shots towards O.L., who was still fleeing to the east along the north sidewalk while also firing back at the group of three. At this point, S.P.-F got up off the sidewalk and scrambled around the corner onto Crang Ave., together with the member of his group who had just fired the gun again. The number of shots fired is clearly visible because white smoke was emitted from the gun barrel after each shot fired;
• The dashboard camera in a car on the south side of St. Clair and video cameras at Oakwood Collegiate show O.L. running to the east along the same St. Clair West north sidewalk, past the Pizza Pizza, and back to the high school, clearly carrying and firing a gun as he ran. He disposed of the gun at the high school, where it was subsequently seized by the police. He then went to the principal’s office where he was arrested. He was wounded in the abdomen from a gunshot. His gun was a 9-millimeter Taurus sub-compact handgun. Two 9-millimeter shell casings and two projectiles were found at the crime scene;
• The group of three who had been at the corner of St. Clair and Crang when O.L. approached, all ran to the north on Crang Ave. after the gun battle. Video surveillance on Crang Ave. shows a man dressed in black or dark clothing running to the north on his own. This man was neither Kieley nor S.P.-F. It can be inferred from all the evidence that it was Smith-Alexander and that he was the first of the group of three to flee from the gun battle, after he was wounded. Dark green or black pants with a bullet hole in the right leg were subsequently seized from the residence where Kieley and Smith-Alexander were arrested. The hole matches the location of Smith-Alexander’s leg wound. Teachers at Oakwood Collegiate heard gunshots, looked out their windows, and saw two males run to the north on Crang Ave. One of them had fallen, he was overweight, and he appeared to the teachers to be their student S.P.-F. He got into the back seat of a car that was parked on Crang Ave. The car drove away and then picked up a third person. Another significant eye witness, who was sitting on his porch on Crang Ave., heard the gunshots and saw a white male with a full beard at the corner of St. Clair and Crang. This male, who must have been Kieley, was holding a handgun. He ran north on Crang Ave.;
• The eye witnesses described a car that was parked on Crang Ave. and that fled, shortly after the gunshots were heard. It was a silver or grey Mitsubishi Gallant with a license plate that ended in “444”. The police searched their database and found a Mitsubishi Gallant with a license plate that ended in “444”. It was a rental car and the rental agency could track the car on its GPS program. The GPS placed the car at St. Clair West and Crang Ave. at 2:24 pm that day. The car had been rented by Smith-Alexander. A few hours later, the car was parked at a building in Scarborough. The police attended at the building and observed Kieley and Smith-Alexander as they came out of a basement apartment and entered the Mitsubishi Gallant. It was at 9:36 pm, that is, about seven hours after the gun battle had ended. They were both arrested. Smith-Alexander had a gunshot wound to his right leg;
• A search of the Scarborough residence that Kieley and Smith-Alexander had emerged from led to seizures of two pairs of dark or black pants and bloody gauze and bandages. Both pairs of pants had bullet holes in locations that matched the locations of Smith-Alexander’s and S.P.-F.’s gunshot wounds. There was no gun found at the residence or in the Mitsubishi car that Smith -Alexander had rented and that he had entered with Kieley;
• The one member of the group of three who had run north on Crang Ave., and who was not at the Scarborough residence at 9:36 pm when the police arrived and arrested Kieley and Smith-Alexander, was S.P.-F. He had been taken to the Scarborough General Hospital at 7:50 pm, about five hours after he fled from the gun battle on St. Clair West. He had a gunshot wound to his left leg. He advised the police that he was shot outside the Pizza Pizza at Oakwood and St. Clair. He was driven to the hospital by his older brother. He was wearing the same distinctive hoodie that can be seen in the video surveillance on St. Clair West. This hoodie was seized by the police. It can be inferred that S.P.-F.’s black pants had been taken off and left at the Scarborough residence (as noted above) which, in turn, infers that S.P.-F. had been at the Scarborough residence after fleeing in the Mitsubishi Gallant with Kieley and Smith-Alexander. The car that transported S.P.-F. to the hospital was also seized by the police and was searched with a warrant. The police found two knapsacks, one on top of the other, in the rear passenger area of the car. The knapsack on top contained S.P.-F.’s school timetable and an order form for his school photograph. The second knapsack was underneath the first knapsack and it contained an unloaded .357 Magnum revolver in one compartment with three rounds of .357 ammunition in another compartment. There are six chambers in the revolver. The gunman in the group of three at the corner of St. Clair and Crang appeared to have fired three times;
• Finally, it should be noted that the video evidence shows people on the sidewalks, cars in the street, and passengers on the streetcar. The gunshots can be heard, some people ran, and the passengers on the streetcar dove onto the floor and ducked.

[11] The plan of release proposed at the bail hearing on November 21, 2019, just over a month after Kieley’s arrest, was that he reside with two sureties, namely his father Joseph Kieley and his step-mother Jessica Oake. They live in an apartment in the north-east part of Toronto, near Don Mills and York Mills. The object of this plan was to get Kieley away from the west end area near his mother’s home where the offences had occurred and to provide for full-time supervision by the two sureties. They both worked at full-time jobs but they had arranged their schedules so that one of them would always be at home with Kieley in order to supervise a “house arrest” bail.

[12] This second bail hearing, unlike the first, involved a reverse onus on two separate bases as Kieley was on a prior bail order at the time (and so s.515(6)(a)i applied) and he was now charged with a s. 244 offence allegedly committed with a firearm (and so s.515(6)(a)vii applied). The Justice of the Peace detained Kieley on both the secondary and tertiary grounds.

[13] At the bail review in this Court, the plan of release was similar to the one proposed eight months ago at the original bail hearing. The main differences were that Kieley has now spent nine months in custody and there is a suggestion that he may be starting to change. He is now 25 years old. He has been reading serious books and magazines and taking various programs offered at the South Detention Centre. He also wants to complete his missing grade 12 high school credits and to then take on-line courses that require high school graduation. A new addition to the plan of release is GPS ankle bracelet monitoring. Finally, there is concern about the coronavirus because Kieley has asthma, although he acknowledged that he was not taking any medication and he has not used a puffer for his asthma since shortly after high school. The arguably more significant impact of the pandemic is that the charges relating to the St. Clair West shooting had been scheduled for a three-day preliminary inquiry on May 6 and 7 and June 15, 2020. These dates were adjourned due to the recent closure of the courts. However, the Ontario Court of Justice has now set early preliminary inquiry dates for September 14 and 17 and October 5, 2020, so the delay caused by the pandemic in this case is not great at present.

C. Analysis

[14] The Crown sensibly conceded that there has been a material change in circumstances since the Toronto bail hearing relating to the second set of charges was conducted in late November 2019. The material change is a combination of the coronavirus pandemic and the adjournments of both Kieley’s trial in Newmarket and his preliminary inquiry in Toronto. I agree with this concession. See: R. v. Gordon, 2020 ONSC 4071 at paras. 20-24 where the post- St. Cloud meaning of “material change in circumstance” is discussed.

[15] As a result, Kieley is entitled to a fresh bail hearing based on present circumstances. The primary ground is not in issue in this case. On the secondary ground, there are obvious concerns because Kieley is alleged to have discharged a loaded handgun a mere six months after he was released on bail on an earlier charge of possessing a loaded handgun. On the other hand, there are some recent signs that Kieley may be changing after spending nine months in custody, he has no criminal record, and there is a strict plan of release with two responsible sureties. On a narrow preponderance of probabilities, I am satisfied that the latter considerations outweigh the former concerns. As a result, Kieley has met his onus on the secondary ground.

[16] In my view, this bail review is really about the tertiary ground. I recently set out my understanding of the post- St. Cloud law relating to the tertiary ground in R. v. Gordon, supra at paras. 34-41, 48 and 54-6. I simply adopt that analysis for purposes of the present Application. In my view, the most important factors in this case relating to the tertiary ground are the following:

• First, there are some possible weaknesses in the Crown’s case on the Newmarket charges relating to possession of the loaded handgun found in the car. There may be Charter of Rights issues and there were two passengers in Kieley’s car. Nevertheless, Kieley was driving the car, he had the keys to the car, he had rented the car, he was the only driver of the car, and the knapsack with the gun was located under the driver’s seat. In addition, he lied to the police about not having the keys, which could infer that he did not want the police to search the car. There is also a common sense inference that people who possess a car generally have knowledge of any valuable items left in that car, and that third parties generally do not hide their valuables in someone else’s car unless they trust the other person to look after the valuables for them. See: R. v. Thompson, 2020 ONCA 361; R. v. Bonilla-Perez, 2016 ONCA 535, affirming 2014 ONSC 2031 at para. 51. In my view, the Crown’s case on the Newmarket charges is not overwhelming but it is a reasonable case;
• Second, the Crown’s case on the subsequent Toronto charges appears to be strong. There is overwhelming evidence that Kieley was present at the gun battle on St. Clair West and there is strong evidence that he was the person who discharged a firearm three times at O.L. There is a live issue concerning the mental element for attempt murder (although the first shot was fired at close range and O.L. was struck in the abdomen). However, there is no such issue concerning the mental element for the s. 244 offence. The only issue relating to that offence is self-defence because O.L. was armed and he drew and fired his own gun at the others, apparently after he was surrounded. The real difficulty with self-defence is the final two shots fired at O.L., after O.L. had fled to the east. At this point, the gunman had reached a place of safety at the corner of the building on Crang Ave., just to the north and west of the original altercation, and he deliberately stopped and returned south to the middle of the St. Clair West sidewalk in order to fire two additional shots at the fleeing O.L. Self-defence is unlikely to succeed in relation to these final two shots. In addition, there appears to be no defence to the s. 95 charge of possession of a loaded handgun. The independent eye witness puts the gun in Kieley’s hand, as does the circumstantial evidence (by a process of eliminating S.P.-F. and Smith-Alexander as the gunman, since both were wounded and neither was standing and firing the last two shots at the corner);
• Third, the circumstances surrounding the offences are as shocking as can be imagined. Participating in a public gun battle on St. Clair West in mid-town Toronto at 2:30 pm, with people on the sidewalk, cars in the street, people in a stopped streetcar, and high school students in class across the street, represents an intolerable threat to public safety. Many entirely innocent people were put at significant risk of death or serious bodily harm. See, in this regard, R. v. McGowan [2009] O.J. No. 3686 at paras. 11-12 (S.C.J.), per Trotter J. as he then was;
• Fourth, the fact that the offences were committed a mere six months after Kieley was previously released on bail for an earlier s. 95 offence carries additional weight in relation to potential loss of public confidence in the administration of justice, if he was to be released again;
• Fifth, the offences are extremely serious and they will attract a lengthy prison sentence. By the time the Toronto preliminary inquiry ends in early October 2020, Kieley will have spent almost a year in pre-trial custody. The credit he will receive for this “dead time”, if convicted, does not begin to approach the likely sentence for these offences;
• Sixth, the risks associated with the Covid-19 pandemic are not great in this case because Kieley is young, his asthma has not required treatment for a number of years, and there has been no outbreak or spread of the virus on his range at the South Detention Centre for the past four months; and
• Seventh, a reasonable plan of release has been put forward involving close supervision by two responsible sureties who are understandably concerned about their son. This factor weighs in Kieley’s favour on the tertiary ground. See: R. v. Dang, 2015 ONSC 4254 at para. 58, per Trotter J. as he then was.

[17] Taking all the above circumstances or factors into consideration, the first five factors weigh in favour of detention on the tertiary ground and some of them weigh heavily in favour of detention. The sixth factor carries neutral weight. Only the seventh factor favours release. After balancing the above seven factors, I am satisfied that a reasonable member of the public would lose confidence in the administration of justice if Kieley was released on bail. He has not met his onus on the tertiary ground.

[18] For all these Reasons, the bail review Application is dismissed. I would like to thank both counsel for their thorough materials and their helpful submissions.

M.A. Code J. Released: July 28, 2020