Court File and Parties
COURT FILE NO.: CR-21-00000058-BR DATE: 2021-02-26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – TRAEQUON MAHONEY Applicant
BEFORE: M.A. Code J.
COUNSEL: Kene Canton, Counsel for the Crown Hilary Dudding, Counsel for the Applicant
HEARD: February 8 and 18, 2021
Reasons for Judgement
A. Overview
1The Applicant Traequon Mahoney brought this bail review pursuant to s. 520 of the Criminal Code, seeking his release from custody pending trial on two separate sets of charges. The two sets of charges are awaiting trial in two separate jurisdictions in Ontario. After a bail hearing before McInnes J. in the Ontario Court of Justice on July 3, 2020, the Applicant’s prior release on the first set of charges was revoked pursuant to s. 524 and he was detained on both sets of charges on the secondary and tertiary grounds. McInnes J. gave short oral Reasons on July 6, 2020 and more thorough written Reasons on September 4, 2020.
2In brief summary, the first set of charges involved an armed robbery of a legal marijuana “grow-op” located in a rural area of Norfolk County, some distance to the south-west of the Applicant’s home in Brampton. The robbery took place late at night on October 25, 2018 and the Applicant was arrested shortly afterwards in a nearby field, together with three other co-accused. The Applicant was 19 years old at the time, he had no adult criminal record and no Youth Court record, and he was released on bail on October 29, 2018 with his mother, Kenishia Brown, as the main residential surety. The terms of bail required that he “not be away from your home unless you are in the company of [one of your sureties]” and that he not possess “any weapons”.
3The second set of charges took place about 20 months later, on June 9, 2020, when the Applicant was almost 21 years old. His best friend, a successful rap music performer who used the name Hudini, had been killed in downtown Toronto in an exchange of gunfire between two groups on May 26, 2020. The funeral for Hudini was held two weeks later, on June 9, 2020, at a Mississauga funeral home. It was followed by a celebration of life event at a restaurant located adjacent to the north side of the 401 Highway in Toronto. A large group was gathered behind the restaurant in a parking area, late at night, when a car pulled over on the 401 Highway. Gunshots were exchanged between the occupants of the car and the large group in the restaurant parking area. It is alleged that the Applicant was amongst the group who returned fire from the restaurant parking area. The Applicant is charged, in particular, with discharging a firearm with intent (contrary to s. 244), possession of a loaded handgun (contrary to s. 95), and breach of the earlier weapons prohibition term of bail (contrary to s. 145).
4This bail review Application initially came on before me on February 8, 2021, as a teleconference hearing. I advised the parties that there were a number of areas in the record where I would require further evidence. I also requested that the hearing not be conducted by teleconference, given the gravity of the charges. As a result, the hearing was adjourned until February 18, 2021, the parties filed the further materials that I had requested, and the hearing resumed on the Zoom platform, so that I could see the witnesses and counsel. The Applicant consented to proceeding in this manner.
5At the end of the hearing I reserved judgement. These are my Reasons.
B. Facts
(i) Facts relating to the first set of charges
6As noted above, the first set of charges relate to an armed robbery of a legal marijuana “grow-op” in a rural part of Norfolk County, which is located south and west of Toronto near Lake Erie (hereinafter, the Norfolk charges). The alleged offences took place on October 25, 2018. They have not yet proceeded to trial. A preliminary inquiry was scheduled for a date in July 2020 but it was cancelled due to the Covid-19 pandemic. The Applicant subsequently waived his right to a preliminary inquiry and scheduled March 1, 2021 as the date for a jury trial at the local Norfolk County Court House located in the town of Simcoe. If the Applicant maintains his election of trial by jury, that trial date will not proceed. All jury trials in Ontario are currently suspended by Order of the Chief Justice “until May 3, 2021 at the earliest”, because of the ongoing pandemic.
7The Indictment setting out the Norfolk charges contains 20 counts, all relating to this one incident. The most serious charges are: break and enter of a dwelling house (which carries a maximum life sentence, contrary to s. 348(1)); robbery with a firearm (which carries a maximum life sentence and a minimum 4 year sentence, contrary to s. 344(1)); and hostage taking and forcible confinement with a firearm (which carries a maximum life sentence and a minimum 4 year sentence contrary to s. 279.1). It does not appear that the Applicant Mahoney is alleged to be one of the principals who entered the farm house and carried out these offences. Rather, it appears that he is alleged to have been present outside, acting as an aider and abettor.
8The facts, as summarized by the parties, are that three vehicles carrying eight persons arrived at the rural property some time after 9:00 p.m. The vehicles were an SUV, a pick-up truck, and a U-Haul van. The property was licensed to produce marijuana for medical purposes. Five persons remained outside while three persons entered the residence located on the property at about 10:00 p.m. All three of the men who entered were armed with handguns, they were wearing gloves and ski masks, and they were carrying zip ties. They pointed their firearms at the three occupants who were inside the residence, pistol-whipped one of these occupants, tied their hands with zip ties, and forced them to lie on the floor. A fourth occupant of the premises, who was outside when the above events took place, called the police. When the police arrived the perpetrators fled. There was a high-speed chase of the SUV, which the police called off when speeds of 195 km/hr were reached. Others fled on foot and were pursued by the police and a K-9 unit. At 4:17 a.m. the following morning, the police arrested four persons in a corn field about 1.2 km from the residence (Ramadan, Mahadale, the Applicant, and Nosworthy). A gun, a mask, and a pair of gloves were all found nearby. A fifth person who had arrived in the pick-up truck (Gismondi) was subsequently arrested in Toronto. The three remaining persons escaped and have never been arrested. Of the five persons who were charged and arrested, four have pleaded guilty. The Applicant is the only one who is still awaiting trial.
9It can be inferred from all the evidence that the three persons who entered the residential premises and who were the principals in the various offences were likely Ramadan, Mahadale, and Gismondi. It can also be inferred that the two other accused who were arrested – Nosworthy and the Applicant – must have been amongst the group of five persons who were waiting outside and that the other three members of this group managed to escape (presumably in the SUV). It can be seen that when both Nosworthy and the Applicant were arrested in the corn field, they were together with two of the principals (Ramadan and Mahadale). The third principal, Gismondi, managed to escape but he was connected to the pick-up truck, which was reported stolen after it was left at the scene. He was arrested later in Toronto.
10Gismondi gave a tape recorded statement to the police. The Crown is seeking to tender that statement at the Applicant’s trial (Gismondi cannot be called as a witness at trial because he died of a drug overdose after his guilty plea and while he was awaiting sentencing). In the statement, Gismondi provided a certain amount of detail about the prior planning and preparation involved in the robbery, including how the other two vehicles followed the U-Haul truck to the remote location after all three vehicles had met up at a location in Toronto and switched some license plates. Gismondi was provided with a mask, gloves, and a gun by the main principals. He also described helping to “load the truck” with marijuana, while still masked. He stated that there was “a lot of shit to be moved” and so they “started to move bags into the U-Haul truck” while the “people were tied up already.” A pre-trial Motion concerning the admissibility of this hearsay statement was argued on February 11, 2021 and Krawchenko J. reserved judgement. Gismondi does not name his co-accused in the statement. I am advised that the defence position concerning his description of the robbery and its prior planning is that much of this evidence is already available to the Crown from non-hearsay sources.
(ii) Facts relating to the second set of charges
11As noted above, the second set of charges involved a gun battle between two armed groups in a very public place, namely, a parking lot behind a restaurant adjacent to the busiest highway in Toronto (hereinafter, the Toronto charges). The context in which these events arose appears to relate to gun violence that surrounds certain aspects of the rap music scene in Toronto.
12The Applicant had been released on a “house arrest” bail on October 29, 2018 on the Norfolk charges, as summarized above. There were some difficulties with this bail order which eventually led to it being varied. In particular, on August 27, 2019 a bench warrant was issued when the Applicant failed to attend court on the Norfolk charges. Two days later, on August 29, 2019, the Applicant attended a rap music concert in Brampton. He was arrested for failing to comply with the “house arrest” terms of bail on the Norfolk charges, which required that he be “in the company of ” one of his two sureties when not in his residence. There was a factual dispute about this alleged breach of his terms of bail. The police asserted that the Applicant was not in the company of his sureties at the concert and that he was behaving suspiciously. The Applicant’s mother, who was one of the sureties, testified at the bail hearing before McInnes J. on July 3, 2020 that she was present while the Applicant was performing at the concert. This factual dispute was subsequently resolved in the Applicant’s favour at his trial on the fail to comply charge which recently took place on January 4 and 5, 2021. The Crown withdrew the charge after reviewing certain video evidence provided by the defence which tended to support the mother’s account.
13The Applicant was released on a Promise to Appear on the above fail to comply charge in Brampton on August 30, 2019. However, he was held in custody on the bench warrant that had been issued on the Norfolk charges. A reverse onus bail hearing proceeded in the town of Simcoe on September 20, 2019. The Applicant was released again but on a new bail plan. In light of the above alleged breach of bail in Brampton, at a time when his mother had been the residential surety in the amount of $12,000, the new plan of release approved by the court was that he reside at his grandfather and grandmother’s residence in Brampton, on “house arrest” terms and with his grandfather as surety in the amount of $25,000. He was allowed to leave the residence for medical emergencies, to attend court or to meet with his lawyer, or “when you are in the presence of your surety [his grandfather] or his grandmother.”
14The next development was in December 2019, shortly after the above release on the new “house arrest” bail. The Applicant attended for the filming of a rap music video at an outdoors location. This was not in breach of his terms of bail because his grandfather attended with him. His mother was also present. As the rap video was being filmed, another group of individuals arrived and they began shooting at the rap music video group. The police subsequently found 18 shell casings at the scene. The Applicant’s grandfather was hit by one of the bullets and was in intensive care in hospital until he recovered. The Applicant’s mother testified before McInnes J. that she spoke to the Applicant after this incident and told him that “he can’t be going outside”, that he had to “stay inside … for safety reasons”, and that she was “terrified” as a result of this shooting.
15The next development was about five months later, on May 26, 2020, when the rap music performer known as Hudini was shot and killed. Hudini was the Applicant’s best friend and they collaborated together on both rap music recordings and at concerts. The shooting was described by the Crown at the bail hearing before McInnes J. as follows: “there were two groups, several individuals, that opened fire on one another” on Blue Jays Way in downtown Toronto; “the gunfight resulted in three people getting shot”, including the deceased Hudini, an innocent bystander, and “a 15 year old who was armed with a gun”. The latter two individuals were both injured but not killed.
16The final development was two weeks later, on June 9, 2020, when Hudini’s funeral was held at a funeral home in Mississauga, followed by a celebration of life event at a restaurant near the 401 Highway in Toronto. There is reliable identification of the Applicant attending these two events, which I need not detail in these Reasons as the issue is not challenged for purposes of this bail review. It is also implicit from the record before me, and not seriously disputed, that the Applicant was in breach of his “house arrest” terms of bail when he attended at the celebration of life event at the Toronto restaurant. At the bail hearing before McInnes J., the new proposed plan of release was that he would return to residing with his mother at her home in Brampton. A second proposed surety, the Applicant’s godmother Marie Shaw, would pledge $50,000 or more and would move in with the Applicant and his mother and provide additional supervision. The grandparents were not proposed as sureties before McInnes J. or before me. Ms. Shaw, the godmother, testified before McInnes J. that at the time of the shooting at the Toronto restaurant parking lot, the Applicant “was supposed to be, you know, home with his grandparents. That’s where he was supposed to be.”
17The gun battle between the two groups in the parking lot area behind the restaurant is captured by a video surveillance camera. At about 11:21 p.m., a car pulled over on the north side of the westbound collector lanes of the 401 Highway. A large group of 40 or more mourners at the event for Hudini were gathered in the parking lot, while drinking and socializing. One or more of the occupants of the car that had stopped on the north side of the 401 exited the car and opened fire on the group in the parking lot. The Applicant was with part of the group who were closer to the 401. They all ran back towards the restaurant and did not immediately return fire. The Applicant did not draw a gun at this point and he did not appear to be running in a manner that is sometimes associated with possession of a gun. When the Applicant reached the rear door to the restaurant, where another part of the group was taking cover behind a garbage dumpster, he fell to the ground and hit the wall of the building in a crush of bodies as everyone ran towards the back door of the restaurant. While the Applicant was on the ground, another person climbed over top of him in order to reach the back door to the restaurant, where many in the group had escaped in order to take shelter inside. At this point, the Applicant is partially visible at the bottom of the surveillance video frame, and he can be seen rotating his body on the ground and reaching across his body with his left arm. However, much of what the Applicant did at this stage is not visible for a few seconds because he is either not in the video frame at all or he is only partially visible in the frame. After this brief period where he cannot be seen, the Applicant re-appears at the bottom of the video frame, still lying on his back on the ground. At this point, he is clearly armed with a handgun and he began to fire it repeatedly. A group of other young males in the same area as the Applicant, behind the dumpster and near the back door to the restaurant, can also be seen firing handguns in the same general direction of the 401 Highway. The police identified approximately 10 different guns being fired by the group in the parking area behind the restaurant, firing generally in the direction of the initial assailants who had stopped on the north side of the 401.
18The Applicant appeared to fire his gun approximately six times over a 14 second period. He initially fired the gun while lying on his back on the ground, sometimes appearing to fire wildly into the air or to the east of where the car had stopped on the 401. He eventually got to his feet and ran into the back door of the restaurant, while still firing his gun towards the area where the car had stopped. When he ran into the restaurant he remained in possession of the gun. Traffic was constantly streaming past in the westbound lanes of the 401 throughout the gun battle. One person in the group in the restaurant parking lot was hit by a bullet while he was taking shelter behind the dumpster. It is unclear who fired this bullet and it is unclear as to which group fired the bullet.
19The Applicant was arrested two days after the above events, on June 10, 2020. The bail hearing before McInnes J. was held a month later, on July 3, 2020. The Applicant’s mother testified that she believed he was in danger because of “an element of violence that has been around him for the past two years.”
20A preliminary inquiry on the Toronto charges has been scheduled for July 7 to 9, 2021. The Applicant is jointly charged with another co-accused. By the end of the preliminary inquiry, the Applicant will have been in custody for 13 months if he remains detained. As noted above, the main charges against the Applicant are discharging a firearm with intent (which carries a 14 year maximum sentence and a 5 year minimum sentence, contrary to s. 244), possession of a loaded handgun (which carries a maximum sentence of 10 years, contrary to s. 95), and breach of the weapons prohibition term of bail (which carries a 2 year maximum sentence, contrary to s. 145).
(iii) Facts relating to the Applicant and the plan of release
21The Applicant is now 21 years old. He has no Youth Court record and no adult criminal record. He graduated from high school in Brampton in 2017. He was raised by his mother and he is her oldest child. She has eight younger children (the Applicant’s half siblings) and lives with their father. She has recently moved the family to a large house in Kleinberg with five bedrooms and a finished basement, in order to get the family away from the violence they have experienced in Toronto and Brampton.
22The Applicant began a career as a rap music artist in 2017, after finishing high school, and he achieved some early success. Two of his tracks released that year were posted on YouTube and they had millions of views. He was able to earn income from his music and he began “to consider record deals”. However, these efforts were truncated in 2018 as a result of his criminal charges. His terms of bail did not permit travel to the United States, which is apparently essential to success in this genre of music. In his affidavit filed on the bail review, he stated that he has “learned hard lessons about life since 2018”, that a career as “a professional music performer may not be something I can now do”, and that “I may have lost that dream, I hope that is not what happens but I have learned my lessons.” He also stated that “being in jail has had a severe impact on me” and that “I never want to come back here.”
23The present plan of release is different from the one that was proposed at the bail hearing before McInnes J. The Applicant’s mother and his godmother are no longer proposed as sureties. However, it is proposed that the Applicant would live with his mother under “house arrest” at the new home where she now lives with her family in Kleinberg. It is proposed that Sophia Bent would move in with the family in their Kleinberg home and would become the residential surety (in the amount of $10,000), with primary supervisory responsibility for the Applicant.
24Ms. Bent is 53 years old, she works as a personal support worker at a long term care home in Georgetown, she raised four children, and she now lives alone in a basement flat in Brampton. Her connection to the Applicant is that she is the mother of his now deceased best friend, Hudini. She testified before me and poignantly explained that she is lonely, that the Applicant is a connection to her deceased son, and that taking on the task of supervising the Applicant on bail will be a comfort to her and will provide meaning and will also act as a form of therapy. She is an impressive woman who has no tolerance for gun violence or for the “gangster rap” genre. She attended her son’s funeral but not the subsequent celebration of life event at the restaurant. She explained that she did not want to celebrate his death “in a party way” and she did not like the large crowd “atmosphere” in places like that. She described herself as “strict”, as a practitioner of “tough love”, and as someone who has a history of helping and counseling young people, in particular, through her church.
25The difficulty with Ms. Bent acting as the main residential surety is that she works full time. Her shifts at the long term care home are always from 3:00 to 11:00 p.m. and she would have to leave the Kleinberg house at 1:45 p.m., in order to drive to her place of work in Georgetown. She would not be back at home until 12:00 midnight. As a result, she would be absent from the home for over 10 hours on every working day. The only flexibility she has is that she can schedule her shifts on non-consecutive days, as long as she completes 10 shifts every two weeks. For example, as I understand it, in any two week period she could work four of her required shifts on two weekends and then work the six remaining shifts on any weekdays of her choosing. However, no firm schedule of when she will work has been arrived at.
26Three additional sureties are proposed, in order to provide back-up for Ms. Bent. They all work and there appear to be some difficulties with all of their schedules. Joseph Gibbs testified before me. He is a 52 year old family friend who lives in downtown Toronto. He owns and operates a janitorial business. He raised four children and he is now actively involved in community work, in particular, in the “Stop the Violence” campaign in the black community. He is already the sole residential surety for another young man named Stampp, on a “house arrest” bail. As a result, the Applicant would become a second bail responsibility for Mr. Gibbs. He testified that he could attend at the Kleinberg home twice a week, while Ms. Bent was at work, in order to supervise the Applicant. He was proposed as the largest financial surety, in the amount of $50,000. He is clearly a pro-social individual who is well-intentioned, although he has some misunderstanding about the meaning of a “house arrest” bail. He does understand that he would have to bring Mr. Stampp with him to Kleinberg, when attending there to supervise the Applicant. This is not an ideal arrangement.
27The other two proposed sureties did not testify before me but they both appear, from their affidavits, to be hard-working and responsible individuals. Tiare Allimant is a friend of the Applicant’s mother. She is 36 years old, she lives in Mississauga with her three children (age 16, 14 and 10), and she works full-time as a dental assistant. She does not work on Fridays and Sundays so it appears that she would be available to attend in Kleinberg and supervise the Applicant, if Ms. Bent scheduled shifts at work on those two days. Ms. Allimant is proposed as a surety in the amount of $5,000.
28Christine Okyere is similarly proposed as a surety in the amount of $5,000. She is also a friend of the Applicant’s mother. She lives in the town of Sharon with her three children (age 17, 15, and 14). She works full-time on the five week days for a major bank. It appears that she would be available to attend in Kleinberg on weekends, in order to supervise the Applicant, if Ms. Bent was at work on those days.
29It can be seen that there are some difficulties in arranging full-time supervision of the Applicant, while on a “house arrest” bail, because all four of the sureties work full time on varying days and because Mr. Gibbs is already supervising another “house arrest” bail. However, Ms. Dudding spoke to the four sureties during a recess in the hearing and she assures me that they can organize Ms. Bent’s scheduled shifts in such a way that the other three proposed sureties would be able to attend in Kleinberg while Ms. Bent is at work. In other words, Ms. Dudding submitted that a schedule could be worked out that would provide for full-time 24/7 supervision. I should add that the plan of release includes ankle-bracelet monitoring and certain other conditions, such as no contact between the Applicant and his previous friends and associates (which was a condition that was specifically requested by Ms. Bent). Ms. Bent also testified that she would insist on a strict set of rules relating to searches and a social media prohibition.
C. Analysis
(i) Introduction
30The Crown concedes that there has been a “material change in circumstance” since the bail hearing before McInnes J., such that the Applicant is now entitled to a hearing de novo. In particular, the Applicant is no longer facing the Brampton fail to comply charge, which was recently resolved in his favour at trial. In addition, there is a new and substantially different plan of release. Finally, the Applicant has now been in custody for almost nine months and it appears that his trial on the Norfolk charges will be further delayed as a result of the Covid-19 pandemic. In all these circumstances, considered together in their totality, I am satisfied that there is “new evidence” amounting to a “material change in circumstance”, as that legal test is explained in R. v. St-Cloud, 2015 SCC 27 and in R. v. Gordon, 2020 ONSC 4071 at paras. 20-24.
31The primary grounds for detention are not in issue in this case, given the Applicant’s strong connection to this jurisdiction. In addition, he has no history of failing to attend court aside from the bench warrant that was issued on one occasion on the Norfolk charges, as set out above. He was not charged with fail to appear on that occasion as there was apparently a satisfactory explanation for his non-appearance.
32The bail review, therefore, turns entirely on the secondary and tertiary grounds for detention. The onus is on the Applicant for three distinct reasons: first, he was charged with the Toronto offences while he was already on bail for the Norfolk offences (s. 515(6)(a)i); second, he is charged with a s. 244 offence allegedly committed with a firearm (s. 515(6)(a) vii); and third, he is charged with a s. 145 breach of bail offence (s. 515 (6)(c)).
(ii) The secondary grounds
33The considerations relating to the secondary grounds are relatively evenly balanced. In the Applicant’s favour, he is a young 21 year old with no Youth Court or adult criminal record. He successfully completed high school and he appears to have musical abilities (albeit, that talent has been expressed to date in a genre that appears to be unsafe and anti-social). In addition, Ms. Dudding has put together a relatively strong plan of release with a number of positive features, including the following: first, the Applicant’s family has moved to Kleinberg, away from the dangers apparently associated with certain aspects of rap music culture in Toronto and Brampton; second, a strong and more independent residential surety, Ms. Bent, will move into the Kleinberg home and will take primary responsibility for supervising the Applicant; third, there are three back-up sureties, who all appear to be responsible, who can apparently attend at the Kleinberg home and provide constant supervision of the Applicant while Ms. Bent is at work; fourth, ankle-bracelet monitoring; and fifth, certain rules and conditions, insisted on or requested by Ms. Bent, relating to regular searches for weapons, restrictions on social media, and no contact with the Applicant’s prior friends and associates. Finally, the Applicant’s affidavit filed on the bail review perhaps shows signs that he may be developing some maturity. He did not testify before me, so I cannot evaluate his sincerity, but he appears to be realistically assessing the numerous negative impacts of his criminal charges. He also appears to be reflecting on the loss of his best friend due to gun violence, the impact of being detained in jail, and his good fortune in having a family whose friends are willing to help him at considerable cost to themselves. For all these reasons, he may be ready to change, although I cannot reach any firm conclusions on this point.
34On the other hand, there are a number of significant negative considerations relating to the secondary grounds. The Applicant was undoubtedly in breach of two important terms of his prior bail order when he attended in the parking lot area behind the Toronto restaurant on June 9, 2020. First, he was subject to “house arrest” and his grandfather was not present. Second, he either armed himself with a loaded handgun in advance or he took up possession of a loaded handgun in the parking area. In addition, the nature and gravity of the two sets of index offences is relevant to the secondary grounds because it can infer the Applicant’s future dangerousness, provided the Crown’s case is relatively strong on these charges. See: R. v. Rondeau (1996) at 478-80 (Que. C.A.); R. v. Gulyas, 2013 ONCA 68 at paras. 7-11 (C.A.); R. v. Gordon, supra at para. 32; Trotter, The Law of Bail in Canada, 3rd Ed. 2017 [Thomson Reuters], at p. 3-21. The Norfolk charges undoubtedly involved a serious and violent robbery that was carefully planned and premeditated, with three vehicles, three handguns, ski masks, gloves, zip ties, and considerable travel to a remote location. The Toronto charges involved a wildly dangerous gun battle between two armed groups in a very public place. I will analyse the strength of the Crown’s two cases below, when discussing the tertiary grounds, but the violence and dangerousness of these offences is self-evident. In addition to the gravity of these two sets of offences, they both say something about the Applicant’s choice of associates. The Norfolk charges indicate that the Applicant was associating with individuals who had access to three illegal handguns. The main principal, Ramadan, was already on a “house arrest” bail for serious charges in Toronto when he apparently planned the Norfolk robbery. He is now serving a lengthy penitentiary sentence. The Toronto charges indicate that the Applicant was associating with at least ten individuals who came to the “celebration of life” event while armed with ten loaded illegal handguns that they were willing to fire wildly in a very public place. The Applicant’s apparent repeated association with these kinds of people, in both 2018 and again in 2020, raises real concerns about his character and his dangerousness. As a result of these concerns, Ms. Bent’s request for a condition of bail prohibiting any contact between the Applicant and his prior friends and associates becomes significant, as will be discussed below.
35It can be seen that it is a close case on the secondary grounds, with good arguments on both sides.
(iii) The tertiary grounds
36I recently set out my understanding of the impact that the Supreme Court’s decision in R. v. St-Cloud, supra has had on the proper interpretation and application of the tertiary grounds, in R. v. Gordon, supra at paras. 34-53. I will not repeat that analysis, which relied heavily on the Reasons of Trotter J. (as he then was) in R. v. Dang, 2015 ONSC 4254. I simply adopt it for purposes of the present case.
37In terms of the four statutory factors set out in s. 515(10)(c), three of them are relatively straight forward in this case. Both sets of offences are objectively serious (they carry lengthy maximum jail sentences), the accused is “liable on conviction for a potentially lengthy term of imprisonment” (including various minimum sentences relating to the use of a firearm), and “the circumstances surrounding the commission of the offences” are particularly aggravating (the careful planning and premeditation and use of firearms on the Norfolk charges and the repeated wild and reckless firing of an illegal handgun in a very public place on the Toronto charges). However, it should also be noted that the Applicant appeared to play a more minor role in the Norfolk offences and there is an arguable element of self-defence in relation to at least the most serious of the Toronto charges, as will be discussed below.
38As explained in Gordon and in Dang, the above three statutory factors are dependent on the fourth statutory factor, namely, “the apparent strength of the prosecution’s case.” No matter how serious the offences or how lengthy the potential sentences, these factors greatly recede in importance if the Crown’s case is “weak or doubtful”, as Trotter J. put it in R. v. Dang, supra. The statutory term used in s. 515(10)(c) is “the apparent strength” of the Crown’s case, because no definitive evaluation can be made on the basis of the kind of record that is normally filed at a bail hearing, because the bail judge “must be careful not to play the role of trial judge or jury”, and because the Crown is “not required to prove beyond a reasonable doubt that the accused committed the offence” at this stage of the proceedings, as Wagner J. (as he then was) put it in R. v. St-Cloud, supra at paras. 57-59. Despite these qualifications, Wagner J. made it clear that the judge at the bail review stage “must determine the apparent strength of the prosecution’s case”, including considering “any defence raised by the accused” and whether “there appears to be some basis for the defence” [emphasis added].
39Ms. Dudding’s position is that there are live issues and viable defences in relation to both the Norfolk and the Toronto charges. In relation to the Norfolk charges, she submits that eight individuals attended at the rural property in three separate vehicles and only three individuals entered the premises while five remained outside. As a result, different levels of prior knowledge about the planned armed robbery could have been acquired by the different parties travelling in different vehicles. She submits that the Applicant, who remained outside the premises and was not a principal who entered the farm house and carried out the armed robbery, could have believed that the plan was simply to purchase and move a large amount of marijuana, thus requiring three vehicles and eight persons.
40I agree with Ms. Dudding that the critical issue in relation to the Norfolk charges will be proof of the Applicant’s knowledge that an armed robbery was to be carried out at the rural property. Attendance at the scene of a crime, with prior knowledge that the crime is to be committed, is evidence of aiding and abetting. See: R. v. Dunlop and Sylvester (1979). In this case, the natural inference is that the five persons who waited outside were needed to help load large amounts of marijuana into the U-Haul van and truck, while the three persons who went inside had the task of overcoming and restraining the occupants of the house. A defence of lack of knowledge of this plan would require the trier of fact to believe, or to have a reasonable doubt, about all of the following: that the Applicant saw or heard nothing that pointed to a robbery such as guns, ski masks, gloves, zip ties, and changing license plates when the three vehicles and eight persons met up in Toronto or during their lengthy trip down to the rural property in Norfolk County; that upon arrival, the Applicant did not see the three principals break and enter the premises while armed with handguns, while wearing ski masks and gloves, and while carrying zip ties; that the Applicant remained ignorant of any robbery even once the loading of the marijuana into the truck and van had begun (which would presumably require that none of the three principals ever emerged from the premises while armed and masked, in order to assist in the loading or to give instructions); and that it was only once the police arrived and the Applicant fled to the surrounding fields (apparently with two or three of the principals) that he saw the guns and masks and for the first time realized that it was a robbery.
41In my view, this proposed defence of lack of knowledge is slender and unlikely to succeed. However, without seeing all the evidence I cannot say that there is no basis for the defence (which is the St-Cloud issue, when evaluating a suggested defence at the bail hearing stage). In this regard, I note that the Crown prosecuting the Norfolk charges did not appear at these Toronto bail proceedings, nor has the Crown’s evidence supporting the Norfolk charges been filed in the record before me. As a result, I cannot evaluate it and cannot say that the proposed defence is frivolous or that it has no basis.
42Turning to the Toronto charges, Ms. Dudding raises two issues. First, she submits that the brief gap in the surveillance video, when the Applicant had been knocked over in a crush of bodies and fell to the ground and out of the video frame for a few seconds, leaves open the possibility that he picked up someone else’s handgun that had fallen to the ground. This inference is supported, she submits, by the movement of his left arm across his body before he rolled out of the video frame and by his manner of running prior to falling to the ground (which does not suggest that he was armed). In other words, the first issue is whether the Crown can prove that the Applicant was already armed with the loaded handgun before the shooting started. Second, she submits that once the car stopped on the 401 Highway, and its occupants began firing at the group in the restaurant parking lot, the Applicant was acting in self-defence pursuant to s. 34 of the Criminal Code.
43There will be difficulties in raising a reasonable doubt as to self-defence. The jury will need to determine whether it was “reasonable in the circumstances” to fire in an apparently wild and reckless manner in a number of directions, in a very public place, while lying on the ground behind a dumpster, and while near to the back door of the restaurant where many had already escaped. Nevertheless, it is apparent that the occupants of the car parked at the side of the 401 Highway began the altercation by firing first and that deadly force was, therefore, being used against the group in the parking lot. Accordingly, there is “some basis” for self-defence (which is the St-Cloud issue), at least in relation to the more serious s. 244 charge of discharging a firearm with intent.
44Ms. Dudding concedes that self-defence would not be available to the s. 95 charge of possession of a loaded handgun, if there was prior possession before the gun battle or ongoing possession after the gun battle. See: R. v. R.S., 2014 ONSC 1996 at paras. 127-136, revsd but not on this issue, 2019 ONCA 832 at para. 1; R. v. Bengy (2015), 2015 ONCA 397, 325 C.C.C. (3d) 22 at paras. 47-8. In my view, this will be the most important factual issue at the trial of the Toronto charges. The fact that the Applicant ran into the restaurant, moving away from the threat, and was carrying the illegal handgun with him, is damaging to him and infers ongoing possession after the gun battle. On the other hand, there is the evidence relied on by the defence, as summarized above, which may raise a reasonable doubt as to prior possession. Once again, it appears that the Applicant is likely to be convicted of the s. 95 offence but I cannot say there is no basis for the defence (which is the St-Cloud issue).
45In conclusion on this point, concerning the “apparent strength” of the Crown’s case, both sets of charges appear to be reasonably strong although there is undoubtedly a potential defence to the more serious s. 244 offence charged in Toronto.
46The four statutory factors are not exhaustive in relation to the tertiary grounds. In addition, a reasonable member of the public under the tertiary grounds test would consider the fact that the Applicant is 21 years old, he graduated from high school and has musical talent, he has no prior Youth Court or adult criminal record, he has a reasonably strong plan of release, he may have his trial delayed on the Norfolk charges because of the Covid-19 pandemic, and he is perhaps beginning to show some signs of maturity.
47In all these circumstances, the tertiary grounds for detention are relatively evenly balanced. There are some factors that tend to infer a loss of public “confidence in the administration of justice”, if the Applicant was to be released, and some factors that argue the other way.
D. Conclusion
48It can be seen that this is a close case, on both the secondary and tertiary grounds for detention. A close case can often be resolved by applying the burden of proof. In this particular case, the burden is on the Applicant and so he must establish that the factors favouring release outweigh the factors favouring detention.
49In my view, the determinative factor on both grounds for detention is the plan of release. If that plan is strong, I would be persuaded to grant bail. However, the Applicant’s plan of release has changed a number of times, including during the hearing before me, and at present there remain some uncertainties in that plan. I would be prepared to allow the Application and grant bail if the Applicant is able to file further sworn Affidavits from the four proposed sureties and from the Applicant setting out the following: a schedule or plan that they all agree to, setting out the days of the week when Ms. Bent will be working and the days of the week when the other three sureties will attend in Kleinberg in order to ensure 24 hour and 7 day a week supervision of the Applicant; the specific rules that they all agree to enforce, how they will enforce them, and the Applicant’s agreement to those rules; and the specific conditions that they and counsel want the Court to impose as terms of bail, in particular, spelling out how the important condition concerning no contact with the Applicant’s prior friends and associates would be framed, how it would be enforced, and the Applicant’s agreement to it.
50I require this additional sworn evidence because the bail review proceeded with the sureties initially proposing a plan of supervision that would not involve their 24/7 presence at the Kleinberg home. It was only when I made it clear that the informal regime being proposed would not suffice, that Ms. Dudding then spoke to the sureties during a recess and informed me, in her final submissions, that the sureties could rearrange their schedules in order to permit 24/7 supervision. No specific schedule or plan of the days to be covered by each one of the sureties was ever submitted or agreed to, so it simply remains an aspiration or proposal set out in counsel’s closing submissions. I require a firm sworn commitment in this regard from the sureties, setting out the specific schedule or plan that they agree to and that they are able to execute.
51In addition, the proposed rules and conditions of bail are presently unclear and would benefit from much greater specificity. For example, when and how will the Applicant, and any room he has access to, be searched for weapons and by whom; how will he be prohibited from access to social media, or will his social media access simply be monitored and if so, how, when and by whom; and most importantly, how will the condition prohibiting contact with his prior friends and associates be framed and how, when, and by whom will it be enforced? These are all important details and I need to be satisfied that they can be effectively imposed and enforced. In addition, I have the impression that Ms. Bent is strict and that she intends to enforce some fairly demanding rules. In my view, there is considerable benefit to setting out these proposed rules in writing in advance and making sure that all four sureties, and the Applicant, agree to them and will enforce them and abide by them.
52In my view, it is not unreasonable to insist on this greater degree of clarity about the plan of release. The charges against the Applicant are serious, there are sound reasons justifying his ongoing detention, the onus is on him, and the result of this bail review Application depends on being persuaded that the plan of release is strong and that it can be enforced. See, e.g. R. v. Jaser, 2020 ONCA 606 at paras. 108-134 where Doherty J.A. required a further appearance and further materials before being satisfied about the proposed terms of release.
53For all these reasons, the Application is adjourned. It can be brought back on by Ms. Dudding on short notice, before me, once she is ready to proceed and has served and filed her additional material. It would be helpful if Ms. Dudding and Mr. Canton conferred, in advance, about how best to frame the proposed terms of bail. In addition, it would be helpful if the Applicant and the four sureties were able to read these Reasons, so that they understand my concerns. However, I leave these matters in counsel’s hands.
54I wish to thank both counsel for their effective submissions in this difficult case.
M.A. Code J. Released: February 26, 2021