Court File and Parties

COURT FILE NO.: CR-20-00000364-00BR DATE: 20201222

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAUFIQ STANLEY Applicant

COUNSEL: Donna Kellway and Tim Edwards, Counsel for the Crown Dirk Derstine and Jordyn Cowley, Counsel for the Applicant

HEARD: December 21, 2020

BEFORE: M.A. CODE J.

Endorsement

[1] The Applicant Taufiq Stanley is awaiting trial in this Court on two separate Indictments. One Indictment alleges various firearms possession offences. They arise out of the execution of a search warrant and Stanley’s arrest on June 29, 2017. He was found lying on a bed in his bedroom in his mother’s home with a loaded handgun under the pillow. The other Indictment involves the first degree murder of Samatar Farah on April 15, 2017, some two months before Stanley’s arrest. This is an Application for bail in relation to the charges set out in both Indictments.

[2] I began hearing pre-trial Motions on the murder Indictment on October 14, 2020. The Motions were all completed and the case was ready to proceed to jury selection on November 17, 2020. However, by directive of the Chief Justice all new Toronto jury trials were stopped due to the Covid-19 pandemic on November 13, 2020. Jury trials remain shut down in Toronto until at least the end of January 2021. There is some hope the jury trial in this case could begin in February 2021 but this is far from certain. The pandemic continues to worsen in Toronto and the Applicant’s counsel has other trials booked in his calendar in 2021. It may be September 2021 before jury selection can proceed in this case.

[3] There was a previous s. 522 bail hearing in this case in April 2020 before A. O’Marra J. He detained the Applicant on both the secondary and tertiary grounds. He released written Reasons on April 24, 2020. See: R. v. Stanley, 2020 ONSC 2665. I substantially agree with O’Marra J.’s analysis and with his conclusion, subject to what I will say below about the changed circumstances.

[4] The facts of this case are set out in some considerable detail in my Reasons on one particularly difficult pre-trial Motion concerning “prior discreditable conduct.” I adopt that summary of the facts and will not repeat it. See: R. v. Stanley, 2020 ONSC 6673. Two men shot and killed the deceased Farah late at night in a parking lot in the Chester Le neighbourhood of north Scarborough on April 15, 2017. Two separate guns were fired by two men who ran after Farah. Bullets from both guns caused death. There is no realistic issue in the case other than the identity of the two gunmen. Stanley and one Fountain are alleged to be the two co-perpetrators.

[5] Some 30 hours before the murder of Farah, on April 13, 2017, there had been another shooting in the same Chester Le neighbourhood. Three men were together talking in a backyard area, seven gun shots were fired, and two of the men were seriously wounded. They did not see their assailant or assailants. The Applicant Stanley was charged with attempt murder in relation to this separate earlier shooting and he was committed for trial. The Crown entered a stay in this Court on the attempt murder Indictment in early 2020, while advising that the Crown would seek to call the April 13, 2017 attempt murder evidence at the trial of the April 15, 2017 murder. This decision led to the above pre-trial Motion that I heard in October 2020. I heard the Motion after O’Marra J.’s April 2020 decision denying Stanley bail. The main reason for the Crown seeking to elicit evidence relating to the earlier shooting at the trial of the subsequent murder was that ballistics testing established that the gun used on April 13, 2017, which has never been seized, was the same as one of the two guns used on April 15, 2017. The Crown alleges that Stanley was in possession of this gun at the time of the April 13, 2017 shooting. The other gun used on April 15, 2017 was a Taurus revolver that had been seized by the police on April 16, 2017 from an associate of Stanley’s. The police also seized the Applicant Stanley’s cell phone, upon his arrest on June 29, 2017. Photographs in the cell phone show Stanley in possession of a Taurus revolver. The photographs were taken on April 2, 2017. The Taurus in the photographs bears a number of similarities to the Taurus seized on April 16, 2017. The Crown alleges they are the same gun. The photographs also show Stanley in possession of a second handgun and large amounts of cash.

[6] My ruling, allowing the pre-trial Motion, means that the Crown will be able to prove at trial that the Applicant was in possession of both guns used in the shooting of Farah in the days shortly before the murder. I also ruled that certain prejudicial and less probative evidence associated with Stanley’s prior possession of both guns could be edited (such as Stanley’s possession of a second gun and cash, as depicted in the April 2, 2017 photographs, and evidence concerning use of the murder weapon in the April 13, 2017 shooting), subject to counsel negotiating certain admissions that would make this other evidence unnecessary. See, e.g. R. v. Backhouse (2005), 2005 4937 (ON CA), 194 C.C.C. (3d) 1 at paras. 156-172 (Ont. C.A.).

[7] In spite of my substantial agreement with A. O’Marra J.’s decision to deny bail in this case in April 2020, I agree with the Applicant that there are now changed circumstances. The test for the admissibility of “new evidence” on a review of an earlier bail decision is set out in R. v. St. Cloud (2015), 2015 SCC 27, 321 C.C.C. (3d) 307 at paras. 129-139 (S.C.C.): “the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515 (1)” [emphasis added]. This test of “materiality”, at the admissibility stage, is a lower threshold than whether the new evidence “would or should” change the ultimate result, once the bail review proceeds to a hearing de novo after admitting the “new evidence”. See: R. v. J.A., 2020 ONCA 660 at paras. 26 and 55; R. v. Gordon, 2020 ONSC 4071 at paras. 20-24.

[8] Applying the above threshold approach to the admissibility of “new evidence” on a review of an earlier bail decision, I am satisfied that there are four “material” changes that “could” affect the outcome:

i) the jury selection portion of the trial has been delayed, perhaps by as much as 10 months (from November 2020 to September 2021);

ii) there is now a somewhat stronger plan of release as an additional surety in the amount of $50,000 has been put forward and he appears to be a responsible pro-social individual. This one change, if it stood alone, would not meet the test of “materiality”;

iii) the Covid-19 pandemic has changed since the earlier bail hearing in late April 2020. Cases of infection are spreading much more rapidly in the community and in the jails. In particular, there has been a recent outbreak at the Toronto South Detention Centre where the Applicant is being held. There are presently 60 positive inmate cases and 12 positive staff cases. Most of these cases were on two ranges (not the Applicant’s range). All 72 cases have been isolated at home (in the case of staff) or in medical units (in the case of inmates). Finally, one inmate who was on the Applicant’s range has tested positive. He was removed. I heard a great deal of evidence from Deputy Superintendent Marchant about efforts being taken to protect the other 32 inmates on the Applicant’s range from further spread of the virus; and

iv) my Ruling on the “discreditable conduct” pre-trial Motion has added strength to the Crown’s case. O’Marra J. concluded, in his April 2020 bail decision, that the Crown’s case was “compelling”, while acknowledging the following: “In terms of the strength of the Crown’s case I take into consideration that the landscape of a case may very well change by the time of trial”, noting that there were pending “motions to be heard to determine the scope of the evidence to be placed before the jury” (at paras. 49, 52, and 67 of his Reasons). These uncertainties about the strength of the Crown’s case have now been removed as a result of my Ruling.

[9] In light of the above “material” changes, I must “conduct a fresh analysis” of the three grounds for detention set out in s. 515(10). See: R. v. St. Cloud, supra at para. 138; R. v. J.A., supra at para. 26.

[10] The Crown concedes that the Applicant has satisfied the primary ground and O’Marra J. agreed, as do I. The Applicant was born and raised in Toronto and he has strong connections to the community, in particular, he has a large supportive family in Toronto. He has no connections to any other jurisdiction and he has no history of failing to appear. The real issues on this bail hearing are the secondary and tertiary grounds.

[11] In terms of the secondary grounds, there are a number of factors that favour the Applicant. He has no criminal record and he has a reasonable and somewhat strengthened release plan (although O’Marra J. noted at paras. 54-5 of his Reasons that there were some frailties in two of the sureties who testified before him). In addition, there may now be some possible signs of reformation in the Applicant who, it is conceded, was involved in significant anti-social behaviour at the time of the index offences some three and a half years ago. As against these positive considerations, there are a number of factors that argue strongly against release on the secondary grounds. The Crown has a strong case of extremely violent and dangerous offences which, in itself, gives rise to real concern on the secondary ground. See: R. v. Gulyas 2013 ONCA 68, [2013] O.J. No. 417 at paras. 7-11 per. MacPherson J.A. (C.A.); R. v. Rondeau (1996), 1996 6516 (QC CA), 108 C.C.C. (3d) 474 at pp. 478-80 per. Proulx J.A. (Que. C.A.); R. v. R.H. 2006 ONCJ 116, [2006] O.J. No. 1447 at para. 29, per. Trotter J. (as he then was). As Trotter J. put it, writing extra-judicially in The Law of Bail in Canada, 3rd Ed. 2017 at p. 3-21:

Rondeau links the nature of the offence and the strength of the prosecution’s case to the secondary ground. The allegations respecting the index offence(s) are relevant to the accused person’s future dangerousness. The strength of the Crown’s case determines the weight that may be attributed to the index offence in this assessment. Although the accused person is presumed innocent, this cannot prevent a court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability. [Italics in the original].

[12] In addition to the above secondary ground concerns raised by the index offences, the Applicant has shown an extraordinary ability and need to access and possess loaded handguns. In a two month period, from April to June 2017, he was in possession of four separate handguns (one used in the April 13 shooting, two used in the April 15 murder, one kept under his pillow on June 29, and two kept in his lap on April 2 while he posed for photographs with large amounts of apparent cash proceeds of some unlawful activity). His mother conceded, in her evidence at the bail hearing, that she bought a bullet proof vest for the family because of the dangers they faced during this period.

[13] Weighing all the above factors relevant to the secondary ground, they are at best evenly balanced. The burden of proof resolves this ground against the Applicant.

[14] Turning to the tertiary ground, all four statutory factors argue strongly in favour of detention on this ground. The Crown’s case is strong, the offences are the most serious, the Applicant faces lengthy imprisonment, and the violent circumstances involving repeated use and possession of loaded handguns are extremely aggravating. In a Toronto community that is suffering from a plague of gun violence, the public would be appalled by the release of a man who appears to have been involved in two shootings, one resulting in death, and who repeatedly accessed and possessed loaded handguns. On the other hand, the Applicant is a relatively young 23 year old first offender with a reasonable plan of release. In addition, the increased risks posed by the recent spread of the Covid-19 virus in the jails is undoubtedly relevant to the tertiary ground. See: R. v. J.A., supra at para. 63. Finally, there has been recent delay in the Applicant’s trial, although he was undoubtedly the cause of some of the previous delay.

[15] Once again, taking all these relevant factors into consideration in relation to the tertiary ground, they are at best evenly balanced. The burden of proof resolves this ground against the Applicant.

[16] For all these reasons, the Application for bail is dismissed.

M.A. Code J.

Released: December 22, 2020

COURT FILE NO.: CR-20-00000364-00BR DATE: 20201222

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TAUFIQ STANLEY

ENDORSEMENT M.A. Code J.

Released: December 22, 2020