R. v. Ainsworth, 2020 ONSC 8054

Court File and Parties

Court File No.: 310/19 Date: 2020-12-21 Superior Court of Justice - Ontario

Re: R. v. Ainsworth

Before: Justice James W. Sloan

Counsel: G. Leach and M. Eshuis – Counsel for the Crown B. Walker and S. Ramalho – Counsel for Ainsworth

Heard: December 21, 2020

Endorsement

1The accused has been charged with two counts of second-degree murder and has been in custody since her arrest on July 10, 2018. She has elected to be tried by judge alone and her trial is scheduled for July 2021.

2The allegations in the case are horrific. The two deceased were bludgeoned to death with a hammer and then transported to Haliburton where the bodies were set ablaze and abandoned.

3It is alleged the two deceased were killed on or about January 2, 2018.

4The evidence of the Crown presented is exceptionally strong.

5On January 2, 2018, the accused, with the assistance of her mother, Giselle Ainsworth (because she had a valid credit card), rented a vehicle. It is the allegation of the accused that she could not use her mother’s vehicle that day because her mother needed her own car. No evidence was offered with respect to what “important” appointments she had that would have caused her to have to rent a vehicle at the last minute on January 2 to get to them. No evidence was presented as to why the accused could not get to these appointments by some other means, such as a taxi, public transit, a friend or on foot, etc. Both the accused and her mother appear to be people of modest means.

6When the vehicle was returned to the rental car company it was damaged and the DNA of the deceased female was found within it. In addition, the car smelled of smoke.

7The cell phone records of the accused reflect that her phone travelled in the same direction as the deceased bodies on January 2, 2018.

8The accused’s cell phone records also put her phone in the vicinity of a pawnshop on January 2, 2018, where items belonging to one of the accused were pawned. The pawnshop, near Toronto, is on the route that her cell phone took from the Niagara area to Haliburton.

9In addition, the accused is alleged to have told four different people that she participated in the killings. Although it appears they are all members of what I will call the drug culture, they testified to the foregoing fact, that the accused admitted to the killings at the preliminary inquiry. Notwithstanding the accused’s position that these people are drug users and were essentially afraid because of when and how they were picked up by the police for questioning, they still gave damning evidence against the accused at the preliminary inquiry.

10A fifth witness testified that the accused called him to ask what the best way was, to clean up blood in a car.

11To the accused’s credit, at the time of the offence she was almost 40 years old and did not have a criminal record, but was awaiting trial on a robbery charge, to which she later pled guilty to a lesser charge.

12In addition to submitting that the integrity/believability of the previously discussed witnesses is low because of their drug culture life, she puts forward the following arguments and conditions for release.

13Her co-accused on the murder charges is out on bail. No evidence was led before this court with respect to the allegations against him or why he got bail.

14The accused’s plan for release is threefold. She offers the court two sureties and electronic GPS monitoring.

Gisella Ainsworth

15The first surety is her mother, Gisella Ainsworth. She will be seventy-five in January and is in good health. She is employed part time at a 7-Eleven where she has worked for fifty years. In addition to her work she is raising her five-year-old granddaughter, Lily, because the accused is incarcerated. As a result, and until matters could be straightened out with Family and Children’s Services, the accused would not be able to live at her house. In fact, she testified that if the accused is released, she would immediately inform Family and Children’s Services to advise them of same and work towards getting access between mother and daughter approved.

16She is prepared to pledge $85,000 if the accused fails to comply with her release conditions. She currently owns her own home with an estimated $206,000 of net equity.

17Under the circumstances, if released, she would move in with the second surety, Valerie Armstrong, who is a good friend of Gisella.

18She has a cell phone and stated it would be no problem coordinating surety duties with her good friend, Ms. Armstrong. She only works flexible daytime hours and her granddaughter is in daycare while she works.

19She admits renting a car for the accused so she could go to unspecified appointments.

20She heard the car was returned in the damaged condition, because it was covered by insurance. She did not bother to ask what the damage was.

21When told by her stepson, Jesse Wallace, that the accused had done something terrible, she stated unbelievably, that she did not want to hear about it.

22She acknowledged that the accused moved in with her in 2015 shortly after Lily was born and that the accused would have been living with her on August 17, 2017, when the accused committed a theft and assault to which she pleaded guilty.

23She knew that the accused used drugs but stated she never did so in her presence.

24When asked why she did not come forward earlier, she stated that this was the first time she had been asked to be a surety. Currently she talks to her daughter most days and has visited her two or three times in prison.

25When asked how she would control the accused while she was living with Ms. Armstrong, her answer was that she had trusted her daughter not to abuse this chance. She went on to state that she knew her daughter wants contact with Lily and herself, that her daughter has abstained from drugs for two years while being in prison and swears she will never use drugs again.

26She stated to the court that she would not hesitate to call the police if the accused does not follow the rules that are set down for her, such as if she were to use drugs.

Valerie Armstrong

27Ms. Armstrong is retired, seventy-one years of age and in good health. She appears to be a very good friend of the accused’s mother. Other than the last couple of years, she has spent most of the thirty-five years previous to that in Winnipeg and Thunder Bay.

28She lives on government pensions and supplement plans which give her about $1,600 a month and she is prepared to pledge $2,500. She resides alone in a rented two-bedroom apartment in Thorold, Ontario.

29Like the accused mother she states that if the accused does not abide by all the conditions set forth by the court, she will immediately call the police.

30While Ms. Armstrong knows the accused and has seen her on occasional visits to the Niagara area, they certainly have not spent very much time together.

31Although she heard that the accused had gone to the Canadian Mental Health Association for treatment, she knows virtually nothing about the accused’s prior drug use, nor was she told about the relatively recent theft and assault convictions. She was told about the murder charges and is aware of the allegations, such as the bodies being burned.

32She has not asked the accused about her drug treatment, criminal record or the allegations with respect to the murder charges.

33She frequently visits the accused’s mother’s home and joins her approximately one to three times a week in telephone conversations with the accused.

34She told the court she could tell if the accused was under the influence of drugs and if any rules are broken, she would immediately call the police.

Lindsay Ainsworth

35She testified that after the theft and assault charges, she was assisted by the John Howard Society and did not have any breaches. She is prepared to reside with Ms. Armstrong and abide by her house rules and the rules laid down by the court.

36She testified that she was at the Canadian Mental Health Association from February to the end of March 2018 and was successful in getting off drugs. She is currently on methadone to assist her staying clean. She stated she will call the John Howard Society immediately upon being released and also Family and Children’s Services told her to call when she gets out.

37If she were to get out, she said she would do what she does now, which is reading and watching Netflix. Part of the reading and time would be sent preparing for her defence. In addition, of course with the blessing of Family and Children’s Services, she would see her daughter.

38She told the court she became addicted between 20 and 25 and then was on a roller coaster ride where she would be clean for some periods of time and others not.

39Her plan is to stay home, stay clean and not see any people who are associated with the drug culture.

40She acknowledged she was living with her mother when the robbery and assault charges took place.

41She testified that she would not put her mother or Lily or Val (Armstrong) in any jeopardy. She has been clean in jail and she is committed to staying clean.

Steven Tan

42Mr. Tan gave evidence with respect to the workings of the electronic monitoring system which seemed to be quite robust.

Rhonda Frank

43Ms. Frank is the Deputy Superintendent at the Vanier Centre for women. She testified to the institution’s response to COVID 19 and that there are currently no positive cases in the area where the accused is housed. She took the court through the cleaning and other protocols in place. In short there did not seem to be any heightened concerns about COVID19 within the institution.

Findings

44I agree with the defence that there was no evidence presented with respect to any flight risk and this was essentially conceded by the Crown at the beginning of the hearing.

45Although the defence will be able to call into question some of the memories and testimony of the people referred to earlier in these reasons because of their ties to the drug culture, their evidence at this point is very powerful.

[46] In addition to the evidence of witnesses alleging that the accused confessed to murder, the Crown has: (a) the car rented by the accused on January 2, 2018 with DNA from one of the victims in it; (b) the car being returned in a damaged condition smelling of smoke; (c) the accused’s cell phone on January 2, 2018 travelling north in the direction of where the bodies were found; and (d) the accused’s cell phone was in the vicinity of the pawnshop on January 2, 2018, when items belonging to the victims were pawned.

47While electronic monitoring certainly assists the accused in putting her position forward, the two sureties are weak.

48To date her mother does not seem to have had much, if any, positive influence on her. Her evidence that she did not want to hear about something terrible that her daughter had done, is not only unbelievable, it is exactly the behaviour that the court would not want in a surety.

49Ms. Armstrong hardly knows anything about the accused. While she is a great friend of the accused’s mother and wants to help out, she did not bother to find out about her prior drug use and the relatively recent theft and assault convictions.

50I do not find that the electronic monitoring in this case would make up for the week sureties.

51Therefore, I would not release the accused on the secondary ground.

52Although not necessary, on the tertiary ground I find that the detention of the accused is justified, notwithstanding no firearm was used. As stated before, the strength of the prosecution’s case is very strong, obviously the offence of murder is grave, the circumstances surrounding the offence, such as smashing heads with a hammer and burning the bodies, is horrific and the accused is liable on conviction to a very lengthy term of imprisonment.

53I therefore dismiss the application for judicial interim release and confirm the accused continue detention pending trial.

James W. Sloan