Court File and Parties

COURT FILE NO.: CR-21-60000063-00BR DATE: 20210225

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – RYAN McQUINN Applicant

Counsel: R. Fried, for the Respondent A. Goldkind, for the Applicant

HEARD: February 19, 22, 24, 2021.

REASONS FOR DECISION

SCHRECK J.:

[1] Ryan McQuinn is charged with attempted murder, aggravated assault, discharge firearm and a number of firearm possession offences. He was arrested on these charges on July 26, 2019 and has been in custody since that time. As he has been in custody for more than 90 days, he is entitled to have his detention reviewed by this court to determine whether his continued detention is justified within the meaning of s. 515(10) of the Criminal Code: R. v. Myers, 2019 SCC 18, 2019 SCC 105, [2019] 2 S.C.R. 105, at paras. 45-47.

I. FACTS

A. The Allegations

[2] The allegations against Mr. McQuinn are as follows. In the early morning hours of July 26, 2019, the complainant was sitting by himself in the courtyard of an apartment building in Scarborough. A man the Crown alleges is Mr. McQuinn entered the courtyard and began yelling at the complainant while pointing a firearm at him. The man approached the complainant and shot him twice at close range. A struggle ensued during which the gun was fired again. At some point, a woman whom the Crown alleges to be Mr. McQuinn’s girlfriend, J.R., entered the fray and struck the complainant. The man and the woman then left the scene in a taxi. The complainant suffered a gunshot wound to the neck as a result of this incident.

[3] Security video from inside the taxi shows a woman who is apparently recognizable as J.R.. She is with someone who cannot be seen on the video. The police found a mobile phone in the area where the altercation took place. They obtained a warrant to search its contents and found that it contained images of Mr. McQuinn, documents in his name, and what appeared to be text messages between him and other people. It appears to be Mr. McQuinn’s phone.

[4] J.R. was arrested on July 28, 2019 at her home. Mr. McQuinn was not there, although there were documents in his name inside the apartment, at least one of which appeared to show his address as being at J.R.’s apartment.

[5] On August 21, 2019, the police received information that Mr. McQuinn was staying at a certain address in Mississauga with a person named D.C. He was arrested there, as was D.C. A search of the residence resulted in the seizure of two handguns. According to the Centre of Forensic Sciences, one of them, a .32 calibre, was the source of shell casings found where the altercation with the complainant had taken place.

[6] The complainant and Mr. McQuinn do not know each other. It is the Crown’s theory that the attack was motivated by the fact that the complainant had made disrespectful comments towards J.R. earlier that day.

B. Mr. McQuinn’s Circumstances

[7] Mr. McQuinn is 28 years old. He has three young children, the youngest of which he has never met as she was born while he was in custody. J.R. is the mother of that child. Sadly, the mother of the other two children passed away. All of the children are in the care of their respective maternal grandmothers.

[8] At the time of the alleged offences, Mr. McQuinn was subject to a probation order resulting from a mischief conviction. He was also facing human trafficking charges and was subject to a recognizance that specifically prohibited him from possessing firearms.

[9] Mr. McQuinn had a bail hearing on the attempted murder and firearm charges on August 27, 2019 at which he was detained on the primary and secondary grounds. Mr. McQuinn later pleaded guilty to the human trafficking charges and on December 21, 2019 was sentenced to two years less a day, less five months credit for presentence custody. These and the mischief conviction referred to earlier are the only entries on his criminal record.

[10] Mr. McQuinn’s trial on the charges that are the subject of this hearing is scheduled to begin on May 31, 2021. While his sentence on the human trafficking charges has not yet expired, I am advised that but for his detention on these charges, he would have been entitled to statutory release as of the end of 2020. In other words, at this point the only thing keeping Mr. McQuinn in custody is the fact that he was denied bail. He wishes to be released on bail for the three-month period between now and the commencement of his trial.

C. The Proposed Plan

[11] It is proposed that Mr. McQuinn be released on bail with three sureties: his mother, his aunt, and a childhood friend. Both Mr. McQuinn’s mother and aunt were proposed as sureties at the initial bail hearing. However, at that time it was proposed that Mr. McQuinn reside in Hamilton while his sureties lived in Toronto, an arrangement the presiding Justice of the Peace found unsatisfactory. This time, it is proposed that Mr. McQuinn reside with his mother and aunt, that he be under their constant supervision and subject to electronic monitoring through Safetracks.

II. ANALYSIS

A. The Secondary Ground

[12] There are no primary ground concerns in this case. With respect to the secondary ground, Crown counsel has fairly acknowledged that he cannot say that there is a substantial likelihood that Mr. McQuinn would commit further offences if released on the proposed plan. The Crown has, however, raised concerns with respect to that plan.

[13] Mr. McQuinn’s mother acted as a surety for him while he was on bail on the human trafficking charges. One of the conditions of that bail required him to reside with her. However, it appears from an Ontario Works document that was seized from J.R.’s home that Mr. McQuinn had reported his address as being there rather than at his mother’s. Mr. McQuinn testified at this hearing and explained that he had provided that address because he expected the human trafficking charges to be withdrawn and wished to register for Ontario Works in anticipation of moving in with J.R. and contributing to the rent. I have some difficulty with that explanation. At the very least, it shows a willingness to deceive Ontario Works. It also likely shows that he was not residing with his mother as he was required to.

[14] At the initial bail hearing, the Justice of the Peace found that while Mr. McQuinn was on bail, he would sometimes spend one or more nights away from home and his mother would not know where he was. These findings were supported by the record and I have no reason to interfere with them: Myers, at para. 47.

[15] While there are shortcomings in the proposed plan, I agree with Crown counsel that there is not a substantial likelihood that Mr. McQuinn will commit further offences if released, so Mr. McQuinn’s continued detention is not justified on the secondary ground: R. v. Manasseri, 2017 ONCA 226, at para. 87.

B. The Tertiary Ground

(i) Overview

[16] While the Crown accepts that detention is not justified on the secondary ground, the Crown vigorously opposes Mr. McQuinn’s release on the tertiary ground in s. 515(10)(c) of the Criminal Code, which justifies detention where it is necessary to maintain confidence in the administration of justice. That section requires the court to assess public confidence in the administration of justice from the perspective of reasonable members of the community who are informed about the philosophy behind the bail provisions in the Code, Charter values and the actual circumstances of the case: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 75-80.

(ii) The Enumerated Factors

[17] Section 515(10)(c) requires the court to consider all of the circumstances, in particular those enumerated in subsections (i) to (iv). Those are: (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.

[18] All four factors clearly favour detention in this case. While the Crown case with respect to attempted murder is not strong in my view, the Crown’s case with respect to the remaining charges is. All of the offences are grave and the circumstances involve the use of a firearm. If convicted, Mr. McQuinn is likely to be sentenced to a lengthy term of imprisonment, even if he is acquitted on the attempted murder charge.

(c) Other Factors

[19] Of course, the enumerated factors in s. 515(10)(c) are not exhaustive and the court must consider other factors as well: St-Cloud, at paras. 66-71. One of these is the ongoing COVID-19 pandemic. This factor is particularly significant where an accused has some sort of underlying medical condition putting him at greater risk: R. v. Kazman, 2020 ONCA 251, at para. 17. In this case, Mr. McQuinn has said that he suffers from asthma. It would appear however, that this is a minor condition as he does not receive any treatment for it. The pandemic is nonetheless relevant as reducing the populations of prisons, which are congregate settings, has benefits for the community as a whole: Kazman, at para. 18; R. v. Hoo-Hing, 2020 ONSC 6343, at para. 40; R. v. S.A., 2020 ONSC 3622, at para. 41; R. v. H.K., 2020 ONSC 3275, at para. 97; R. v. D.M., 2020 ONSC 3152, at para. 35.

[20] Another factor relied on by counsel for Mr. McQuinn is the fact that he has not seen two of his children for some time and has never met one of them. Crown counsel reminds me that the reasonable member of the public whose confidence must be maintained is “not one prone to emotional reactions”: St-Cloud, at para. 79. In my view, taking compassionate considerations into account does not amount to an “emotional reaction.” Indeed, in my view, the public would have little confidence in a justice system in which compassion has no place. This is a relevant circumstance on the tertiary ground: R. v. Iglesias, 2020 ONSC 169, at para. 67.

[21] Other non-enumerated circumstances do not weigh in favour of release. Mr. McQuinn is not a youthful first offender: St-Cloud, at para. 71. Not only does he have a prior record which includes convictions for serious offences, he is still serving a sentence for them. While the proposed release plan is sufficient to address a substantial likelihood of reoffence, it is not particularly strong: R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85, at para. 58. Finally, this is not a case where there is likely to be a delay before the trial can take place: Myers, at para. 50. To the contrary, the trial is imminent.

(d) Balancing the Factors

[22] Mr. McQuinn’s primary concern seems to be that he would like to see his children before his trial as he has not been able to have in-person visits while in custody because of the pandemic. I have some sympathy for Mr. McQuinn in this regard, although he is to a large extent the author of his own misfortune.

[23] While the situation with Mr. McQuinn’s children and the ongoing pandemic are factors favouring release, they are outweighed by the enumerated and other factors. Mr. McQuinn’s continued detention is therefore necessary to maintain confidence in the administration of justice.

III. DISPOSITION

[24] The application is dismissed.

Justice P.A. Schreck

Released: February 25, 2021