COURT FILE NO.: CR-20-0191-00
DATE: 2020 09 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Vlacic for the Crown
- and –
BRANDON REGO
B. Crothers for the Respondent
HEARD: September 23, 2020 by video conference
PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE ONLY WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES
JUDGMENT ON SECTION 521 BAIL APPLICATION
D.E HARRIS J.
[1] The Crown applies under Section 521 of the Criminal Code to reverse a bail review decision of a Superior Court judge dated August 19, 2020 releasing the Respondent on a surety bail with conditions. It is the Crown’s view that the reviewing judge erred in finding a material change of circumstances. The detention order made by the original bail judge should be reimposed.
BACKGROUND
[2] The Respondent is charged with two sets of charges: 1. Attempt murder; and 2. Intimidation of a justice system participant and uttering threats.
The Attempt Murder
[3] The attempt murder involves a shooting outside an after-hours bar in Brampton on September 22, 2018. The key events around this event are captured on high-quality video surveillance. The complainant, Mr. Alves, was drinking and socializing at the bar. He got into an altercation with the Respondent and two other men: a Mr. Melo and Mr. Torres-Sodoma
[4] The video shows the Respondent punching Alves in the face outside the rear entrance of the bar. The three men then got into a Dodge Durango with the Respondent driving. In the video, Alves runs up to the open driver’s window of the vehicle and strikes the Respondent through the window. Suddenly, Alves falls to the ground. He had been shot. He was transported to Sunnybrook Hospital and emergency surgery was performed. He suffered a gunshot wound to his right chest\abdomen. Alves remained in hospital for approximately a month before being released.
[5] The Durango was rented by a man who told police that he had rented it for the Respondent’s use. In the evening hours of September 23, 2018, just a few hours after the shooting, it was found engulphed in flames in Mulmur Township. The vehicle was burned down to the frame.
[6] At first, after being shot, Alves was a reluctant witness. He declined to give a statement. But the video inside and outside the bar was of good quality and the Respondent and the two other men were arrested in mid-October, 2018. The Respondent was released on a strict $40,000 surety bail on November 15, 2018. Eventually the trial was scheduled for January 6, 2020. The Crown is not proceeding against Melo or Torres-Sodoma.
[7] Alves had a change of heart and on December 23, 2019, two weeks before trial, he gave the police a written statement in which he identified the Respondent as the man who shot him on September 22, 2018. Following disclosure of Alves’s statement, the January trial was converted with the agreement of the Crown to a preliminary inquiry. In the days leading up to the January 6, 2020 date, Alves expressed fear of retaliation and asked to be placed in a witness protection program. Soon after, Alves disappeared and could not be found. A material witness warrant was granted on the preliminary hearing date of January 6, 2020 and the Crown was able to adjourn the matter several times in the hopes they could locate Alves.
The Witness Intimidation and Threatening Death
[8] On February 16, 2020, the officer-in-charge received a social media message from Alves saying that he was being held captive. He gave an address. The police tactical squad found Alves chained and padlocked to a bed. He had been fed canned food and bread during his captivity. The apartment was occupied by Alves’s cousin, Alex Barreira and Barreira’s mother. When interviewed by the police, Alves said that Barreira had chained him up because he was under threat of death from the Respondent not to attend court and not to testify against the Respondent. Barreira told Alves that the Respondent had threatened to kill them both as well as the mother of Barreira’s child.
[9] When the police entered his residence, Barreira was found sitting next to a firearm in plain view. Two other firearms were found in another residence of his. He is charged with kidnapping as well as firearm charges and has been detained in custody.
[10] The Respondent was located later that day and charged with the second set of charges with respect to both Barreira and Alves. He was held in custody.
The Bail Proceedings
[11] A preliminary hearing with reference to the attempt murder proceeded before Justice Wells on March 2 and 3, 2020. Alves testified that the Respondent was the person who shot him on September 22, 2018. After committal on the attempt murder charge, defence counsel opted to conduct a bail hearing for Mr. Rego. It took place over several days. The prior release on the attempt murder was revoked under Section 524 of the Code. The proceeding was a reverse onus for several reasons: the new intimidation and threatening offences were alleged to have been committed while on the attempt murder bail, the use of a firearm in the attempt murder and, in addition, because the Respondent was bound at the time by a weapons prohibition order.
[12] In reasons delivered March 12, 2020, Justice Wells found that the onus had not been met and detained the Respondent on the secondary and tertiary grounds. A bail review under Section 525 of the Criminal Code was brought before the Superior Court on May 14, 2020. The review judge dismissed the application. A second review under Section 520 was brought before the same judge on August 12, 2020. This time the review was successful and the Respondent was released on a stringent bail for reasons dated August 19, 2020. It is from this review that the Crown makes application for a review under Section 521 of the Code.
CONCLUSION
[13] Successive bail reviews are permitted in Ontario, even if the reviewing judge is from the same level of court as was the previous review judge: R. v. Saracino, 1989 7197 (ON SC), [1989] O.J. No. 28 (Ont. H.C.) at para. 14 per Doherty J. (as he then was). The Court of Appeal has endorsed this holding: R. v. Durrani, 2008 ONCA 856 (Ont. C.A.) at para. 29. Although allowing successive reviews, the Saracino case has been interpreted by Justice Trotter to require greater deference when the review is from a judge of the same court: Justice Gary Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Carswell, 2010) at p. 8-35 and see R. v. P. (R.T.), 2015 ONSC 5749 (Ont. S.C.J.) at paras. 14-17.
[14] From an institutional perspective, some additional deference towards the earlier review decision may well be appropriate as otherwise there would be a standing invitation to aggrieved litigants to review every review decision. Judge shopping through a revolving door of reviews would be encouraged. As Justice Doherty wrote at para. 18,
Second applications under s. 520 or s. 521 should not be a forum in which a disappointed party to the initial review seeks a fresh exercise of judicial discretion, or a re-determination of findings of fact made on the initial review.
[15] The Supreme Court decision in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.) examined but did not finally resolve the somewhat different issue of deference to an original bail decision (see para. 104). However, the Chief Justice held in St. Cloud that deference must yield when: 1. New evidence demonstrates a material change of circumstances; 2. An error of law has been made; or 3. The decision below is “clearly inappropriate.”
[16] It may well be that there is a stronger case for deference to a review decision than there is for deference to an original bail decision. But there is no need to delve into such intricacies. In this case, the Crown alleges that the reviewing judge committed a fatal error of law. Both Saracino and St. Cloud agree that I have the power and duty to intervene if an error of law was committed that affected the result: Saracino at para. 18; St. Cloud at paras. 6, 139.
[17] The Crown argued that the error of law committed in the August 19, 2020 review decision was that the reviewing judge erroneously found a material change of circumstances resulted from the tendering of new sureties and a modified bail plan. The Crown contends that the reviewing judge did not analyze Justice Wells’ reasons for the purpose of determining whether she found the plan inadequate or simply felt that the Respondent was too serious a threat to the community to be released. The Crown submits that a correct interpretation of Justice Wells’ reasons leads to the latter conclusion. That being the case, better sureties and a better plan did not lead to a material change of circumstances. The reviewing judge was not entitled to intervene.
[18] I believe the Crown is correct in her framing of the issue. It seems clear from the pertinent authorities that a material change in circumstances, like that found by the reviewing judge, must relate to the reasons for the original detention. Without such a connection, the change of circumstances is not material. I wrote in R v. Henry, 2020 ONSC 4196, 164 W.C.B. (2d) 462 at para. 16
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…
[19] Also see: R. v. Ferguson, [2002] O.J. No. 1969 (Ont. S.C.J.) at para, 17; R. v. Al Safi, 2018 ONSC 326, [2018] O.J. No. 473 (Ont.S.C.J.) at paras. 45-51; R. v. Amagyei, 2018 ONSC 7544 (Ont. S.C.J.), at paras. 14-17.
[20] On several occasions, the reviewing judge explicitly stated that a material change of circumstances had occurred based on the superior supervision plan. For example, the reviewing judge said,
[61] I am of the opinion that the plan of supervision proposed is more than a reshuffling of sureties; it is a material change of circumstances.
Also see paras. 71, 74, 90
[21] The reviewing judge missed a step in his August 19, 2020 ruling. He never appeared to analyze Justice Wells’ original bail decision for the purposes of determining the underlying reasons which led her to order the Respondent’s detention. This, in light of the materiality requirement, was an indispensable threshold for readdressing the question of bail.
[22] Therefore, this bail review comes down to an interpretation of Justice Wells’ reasons for detention. If her detention order was not premised in whole or at least in large part on flaws in the plan or inadequate sureties, the reviewing judge’s decision that a new plan and improved sureties was a material change of circumstances constituted legal error.
[23] In this interpretive exercise, the major problem for the Respondent emerges from one passage in Justice Wells’ reasons. Immediately after the heading “Conclusion” Justice Wells said,
In my view, there is no amount of money nor any degree of electronic monitoring that could satisfy the concerns on the secondary and tertiary grounds.
[24] That seems quite clear on its face. However, Mr. Crothers argues that it is significant that Justice Wells did not in this passage mention the prospect of improved sureties. He argues that this left open the possibility that Justice Wells’ left open the possibility hat better sureties might lead to a different result. Mr. Crothers points to other parts of the reasons in urging an interpretation that the root cause of Justice Wells’ detention order was dissatisfaction with the plan and the sureties.
[25] I cannot agree. Reading the reasons as a whole leaves no doubt that Justice Wells’ emphatic statement was based on an assessment that the Respondent could not be trusted on a subsequent bail and that he was one of those few accused who are un-releasable. No real dissatisfaction with the sureties or the plan was voiced.
[26] This interpretation is based on several facets of the reasons. First, Justice Wells emphasized the strength and seriousness of both sets of charges in her reasons. She was very specific in pointing to the attempt murder evidence, such as a gun being visible in the Respondent’s pocket in the video, as well as it showing him taking it out. In her view, the case was a formidable one.
[27] Justice Wells then reviewed the Respondent’s criminal record which included an aggravated assault conviction for stabbing an individual. After stating in the first line of her conclusions that no amount of money nor any degree of electronic monitoring could satisfy the two bail grounds, Justice Wells held,
In the ensuing months since his release Mr. Rego has managed to enjoy his privacy, conceive a child, and obtain a Smartphone (contrary to his bail) all under the watchful eye of his sureties who each testified that there was nothing they would do differently going forward in terms of the supervision of Mr. Rego.
Mr. Rego is clearly loved by his mother, stepfather and Ms. Casati. Unfortunately, none of them are capable of supervising him in the community. Despite their best efforts, Ms. Botelho and Mr. Loza were not able to ensure against a direct attack on both Mr. Alves and the Administration of Justice.
[28] Both parties embraced the first part of this quotation as buttressing their position. Mr. Crothers argued that it conveyed an implicit criticism of the sureties. Ms. Vlacic contended that it indicated that Justice Wells felt that, despite adequate surety supervision, the Respondent could not be trusted and was ungovernable. I think Ms. Vlacic is correct.
[29] The context is pivotal. The Respondent was alleged to have threatened Barreira and Alves with death. This was not an elaborate offence to commit. The means was alleged to have been merely a phone call but one backed up by fear of the Respondent. What Justice Wells was saying in the disputed sentence quoted above at paragraph 27 is that it is very difficult if not impossible for a surety to guard against an offence committed by this clandestine means. It can easily be done under the “watchful eye” of the sureties. And, furthermore, she implied that the possession of a phone contrary to his bail order added to the impression that the Respondent could not be trusted.
[30] The second part of the quotation reproduced above reinforces this interpretation. Justice Wells does not criticize the sureties. She finds them well-intentioned but despite their best efforts, they were unable to ensure against the attack on Alves.
[31] This is consistent with comments made by Justice Wells during Mr. Crothers’ submissions at the original hearing. Justice Wells interjected and said that the sureties were “nice people”, she liked them very much. She then said that “notwithstanding [that] everyone did everything,” the alleged threatening and intimidation offence were still committed.
[32] At the end of her reasons, Justice Wells emphasized that the case on both sets of charges was “very strong.” Then she touched briefly on the seriousness of the charges:
Shooting a human being at close range is a pathetic and cowardly act that is intolerable in a civilized society. Tampering with a witness strikes at the heart of our democracy and signals a belief that one is above the law. If convicted, Mr. Rego faces a significant period of incarceration …
In my view, a well-informed member of the public would completely lose confidence in the administration of justice if Mr. Rego were released on bail. He is therefore detained on both the secondary and tertiary grounds.
[33] These are not the reasons of a judge who believed that better sureties and a better plan could meet the secondary and tertiary challenges posed by the Respondent’s release on bail. Further comfort that this is the correct interpretation can be derived from the reflection that Justice Wells’ remarks on the seriousness of the two sets of charges were eminently reasonable. The attempted murder charge was very serious. As has been said many times, an accused who shoots another person with a firearm is a “lucky murderer.” R. v. Forcillo, 2018 ONCA 402, [2018] O.J. No. 2263, 141 O.R. (3d) 752, at paras. 128-133, leave refused [2018] S.C.C.A. No. 258.
[34] But despite the seriousness of this offence and the strength of the Crown’s case, Mr. Rego was released on bail with respect to the attempted murder charge. The more salient matter for the purposes of the bail hearing in front of Justice Wells was that involving the disappearance and kidnapping of Alves. In its details and duration, this was a brazen, shocking attempt to subvert and manipulate the judicial system for the purpose of escaping conviction for a grave offence against the person committed with a deadly firearm. The administration of criminal justice is obligated to vigilantly safeguard itself against those who attempt to pervert its process in this way.
[35] The last words of the text of the secondary ground specifically refer to an accused who might “interfere with the administration of justice.” Justice Trotter emphasizes that this aspect of bail is “extremely important,” saying
The integrity of the system is dependent upon the ability of the courts to ensure that a proper trial is conducted and that the process is not undermined by those inclined to threaten or intimidate: see Trotter, Section 3.3(c).
[36] The interference alleged in this case is towards the very top of the seriousness scale. This is what underlay Justice Wells’ conclusion that no release plan could possibly allay the threat the Respondent posed. Once the Respondent had demonstrated his willingness to go to such extreme lengths to avoid successful prosecution on the attempt murder, confidence in him could not be restored. It would be nearly impossible to trust him again no matter what the bail plan. Major concerns on both the secondary and tertiary grounds were implicated.
[37] I conclude that Justice Wells’ decision was not premised on inadequate surety supervision. The absence of a specific statement that no surety supervision would have allayed the bail problems does not change the clear import of her words. With respect, not without some reluctance, I must conclude that the reviewing judge erred in finding a material change of circumstances based on the improved plan. Without this erroneous finding, he had no authority to re-examine and then alter Justice Wells’ detention order.
[38] While it was also argued before the reviewing judge that Justice Wells made errors in her reasons, this argument was not reached in that proceeding. I will briefly address it here.
[39] The defence argued that the kidnapping may well have been a ruse. Counsel spent some time on this aspect in this hearing. This point was also fully argued in front of Justice Wells. She obviously did not agree.
[40] For my part, I think it is unlikely that the kidnapping was a ruse. The evidence makes this implausible. I do agree however that there will be obvious evidentiary challenges for the Crown in proving their case against the Respondent. For example, Alves says that during his captivity he heard the Respondent speaking to Barreira on Barreira’s cell phone. That this could have occurred the way it is said to have is certainly open to doubt. Ms. Vlacic conceded, and I agree, that the case on the attempt murder is stronger than on the newer set of charges.
[41] The reviewing judge did hold, in contradiction to Justice Wells’ finding, that the Crown’s case on the threatening and intimidation counts was not strong. This was a passing comment, however, and was made only after the error in finding a material change of circumstances. It is questionable whether the reviewing judge had the right to substitute his decision for that of Justice Wells. She was in a good position to make the assessment having heard full evidence and argument on the question of bail over the space of three court days. And the fact remains, Alves was missing for six weeks and then was found chained to a bed.
[42] On the question of the alleged errors, I have read the defence written submissions on the errors allegedly made by Justice Wells and have heard counsel’s submissions on the subject. The submissions dive into the fine details of the evidence. As has been often said, a bail hearing is not a trial: R. v. Michel, 2020 ONSC 1505, at para. 16. The complaints are not of great substance in the total evidentiary picture. Even taken cumulatively, the alleged errors are incapable of demonstrating that, in the words of St. Cloud, Justice Wells’ detention decision was “clearly inappropriate” or that it was vitiated by an error of law.
[43] It is also argued as part of this review that there have been some material changes to the strength of the uttering threats and intimidation counts. No additional evidence from cell phone records has been produced against the Respondent. Presumably, no phone calls between the Respondent and Barreira have been discovered. I do not believe that this aspect alters in any meaningful way the strength of the Crown’s case.
[44] In the result, the bail release order dated August 19, 2020 is set aside. An order will be made detaining Mr. Rego under the secondary and tertiary grounds. The Respondent is to surrender himself within 24 hours of the release of this ruling. In the event of non-compliance, a bench warrant for Mr. Rego’s arrest will issue at the discretion of the Crown.
D.E HARRIS J.
Released: September 28, 2020
COURT FILE NO.: CR-20-0191-00
DATE: 2020 09 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and –
Brandon Rego
Respondent
BAIL RULING
D.E HARRIS J.
Released: September 28, 2020