Court File and Parties
CITATION: R. v. Ledinek, 2021 ONSC 1818 COURT FILE NO.: CR-21-00000074-00BR DATE: 20210310
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – GADDIEL LEDINEK, Applicant
COUNSEL: Kene Canton, for the Crown Robert Chartier, for the Applicant
HEARD: March 5, 2021
JUDGE: B.A. Allen J.
Publication Restrictions Notice
There is a ban on the publication of the proceeding under section 517 of the Criminal Code until such time that the accused is discharged after a preliminary inquiry or the trial is completed, subject to any other court orders.
Reasons for Decision on Bail Review
Temporary Suspension of the Court and Procedure on the Hearing
[1] This application was heard and decided amidst of the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference.
[2] The parties consented to the bail review proceeding by way of teleconference. A registrar and court monitor maintained the court record. A publication ban was made. The applicant filed affidavits of the three proposed sureties and his own affidavit. The parties provided written materials electronically by email and made oral submissions. Affirmations to tell the truth were administered. Viva voce evidence was given by the three proposed sureties who were examined in-chief and cross-examined.
Factual Background
[3] The Applicant, Gaddiel Ledinek, 24 years of age, was charged on June 9, 2020 with five firearms offences, namely discharge of a firearm with intent, possession of a restricted firearm with ammunition, careless use of a firearm, unauthorized possession of a firearm, possession of a firearm knowing it was unauthorized. He also stands charged with breach of a firearm prohibition. He is detained at Toronto South Detention Centre.
[4] At the original bail hearing, the Applicant was awaiting sentencing after pleading guilty to obstruction of justice. In September 2020, the Applicant was sentenced to 12 month’s custody on that charge. He was out on bail and parole when he was arrested on the current charges.
[5] The current charges arise from a shootout that occurred in North York outside a restaurant. On June 8, 2020, a large number of people attended an event at the restaurant to celebrate the life of a young man who died as a victim of a shooting incident in downtown Toronto. The incident before this court was captured on video security footage. The video recording shows the occupants of a vehicle parked on the 401 opening fire on the crowd gathered in front of the restaurant. It is the Crown’s position that the Applicant was one of the many people who returned fire on the shooter or shooters.
[6] The Applicant’s fiancée, Shanoah McNeil, one of his sureties proposed at his bail hearing, testified at the hearing that she had attended the event with the Applicant but had run to her car that was some distance away when she heard the shots. By Ms. McNeil’s admission, the Applicant was not under her direct and continuous supervision as required by his bail conditions.
[7] The Applicant suffered an abdominal gunshot wound during the incident and was transported to the hospital. Police attended the hospital and seized the accused’s clothes without arresting him and without a warrant. The police believed that the Applicant was a victim of the shootout rather than a suspect.
[8] The Applicant had prior convictions including two previous firearms convictions and two breaches of court orders. Police had previously identified him as a gang member although previous charges of involvement in a criminal organization were withdrawn. A parole assessment available to the bail court indicates the accused was a high dynamic risk case with medium reintegration potential.
[9] At the original bail hearing, the Applicant indicated he had respiratory problems for which he provided no supporting medical evidence. He also claimed complications from the gunshot wound and medical issues arising from a previous rectal surgery performed while he was in detention.
[10] The Applicant proposed release on a 24/7 house arrest plan with two sureties. The primary surety was the Applicant’s fiancée, Ms. McNeil, the mother of her 9-year-old daughter with the Applicant. Ms. McNeil’s mother, Kimberley Richardson, was to be the secondary surety. The Applicant was also to wear an electronic GPS ankle monitor. Both Ms. McNeil and Ms. Richardson worked from home. The plan proposed that the Applicant and sureties reside at Ms. McNeil’s home at 73 Knapton Drive, Newmarket, Ontario.
The Initial Bail Decision
[11] In his decision, Justice of the Peace John Scarfe denied release on both secondary and tertiary grounds. While he found the proposed plan with two residential sureties and electronic monitoring to be “tight”, he felt there were weaknesses that made it an unsuitable plan. He found the seriousness of the offences, the potentially lengthy sentence, the circumstances surrounding the offences and the strength of the Crown’s case necessitated detention notwithstanding a strong plan. The COVID virus and the Applicant’s unsupported claim to health vulnerabilities did not tip the scales in his favour.
[12] The Justice found Ms. Richardson to be well-intentioned but had doubts about her capacity to supervise and control the Applicant. He expressed concerns about the fact that she did not have a direct connection and relationship with the Applicant but rather related to him through Ms. McNeil. Ms. Richardson indicated she was not familiar with the Applicant’s friends or criminal antecedents. He found her to be rather naïve about her role in supervising the Applicant.
[13] At the time of the memorial celebration, the Applicant was under a condition that he does not associate with a long list of persons. And yet, he was at the event doubtless attended by some of the forbidden people. The Justice found some of Ms. McNeil’s evidence rather doubtful. He found she had a blind dedication to the Applicant that threatened her ability to execute her duties as a surety. The Justice had a problem accepting that Ms. McNeil was at the restaurant event where the shooting took place. Ms. McNeil acknowledged she was not in the Applicant’s direct and continuous presence, as is required of the terms of bail, when the shooting broke out. She claims to have been on the other side of the parking lot but in a position where she could see him. The Justice concluded that while this explains why Ms. McNeil was not the one to take him to the hospital, he was skeptical as to whether she was even at the celebration at all.
[14] On the tertiary ground, the Justice found the offences, involving the discharge of a firearm in the public, to be an aggravating factor which with a conviction, would result in a long custodial sentence. He considered the Applicant’s criminal antecedents which involve previous firearm offences and breaches of court orders. He was in breach of bail and parole when he committed the offences before the court. The Justice found the evidence supports a strong, even overwhelming case for the Crown.
[15] The Justice considered the Applicant’s claim to medical vulnerability at the Toronto South Detention Centre pertaining to his asthma and bronchial conditions. He found that the absence of supporting evidence for his conditions made this claim insufficient to warrant release.
[16] The Justice concluded there was a substantial likelihood the Applicant would re-offend if released and that detention was necessary to maintain confidence in the administration of justice.
The Law Governing Bail Reviews
[17] The Crown seeks detention on secondary and tertiary grounds. There are no primary ground concerns in this case.
[18] There are three bases upon which a court on a bail review can vary an order:
- where the justice has erred in law;
- where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor. But not on the basis that the justice would have weighed the factors differently; or
- where there is a material change in circumstances. R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121.
[19] The defence seeks a de novo proceeding based on a material change in circumstances. A de novo hearing is not appropriate unless there is new evidence being proffered on review: R. v. St-Cloud, at para. 118.
[20] The Applicant requests that the court regard the three new proposed sureties and the strengthened plan as a material change in circumstances. He posits that the review court may consider whether the accused should be detained if new evidence is submitted and that evidence shows a material and relevant change in the circumstances of the case. R. v. St-Cloud held that there should be a flexible approach in determining what constitutes “new evidence” and that the application of the Palmer test should be flexible in the context of a bail review: R. v. St-Cloud, at paras. 57, 127, 129, 131-133 and R. v. Mbuyamba, 2020 ONSC 4000, at paras. 37 and 38.
[21] The Applicant submits that a change in sureties can be a material change if the original decision to detain was linked, connected to, or based on the proposed sureties: R. v. Seegobinsingh, 2020 ONSC 3900. New evidence must be responsive to and alleviate a flaw identified by the judicial officer at the original bail hearing: R. v. Henry, 2020 ONSC 3940, at paras. 16 and 17.
[22] In the context of bail, a modified Palmer test governs the admissibility of new evidence. This reflects the different nature, purpose and timing of those proceedings. Where new evidence is proffered by the defence or the prosecutor, the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. St-Cloud modifies the Palmer test setting out the following criteria for what constitutes “new evidence” and those are diligence, relevance, credibility and impact: R. v. St-Cloud, at paras. 122-137.
[23] I find the proposed plan involving three new proposed sureties with a much stricter 24/7 supervision plan represents a material change in circumstances. This permits a de novo proceeding.
[24] Section 11(e) of the Charter of Rights and Freedoms states that “Any person charged with an offence has the right ... not to be denied reasonable bail without just cause”. This provision is directed at ensuring that the accused will not be denied bail without reason and only denied bail where necessary.
[25] Subsections 515(10)(b) and (c) of the Criminal Code provide the bases on which bail can be denied on secondary and tertiary grounds:
- On the secondary ground, bail can be denied for the protection or safety of the public considering whether there is any “substantial likelihood” the accused will commit a criminal offence or interfere with the administration of justice. Substantial likelihood means “substantial risk”, a standard below proof beyond a reasonable doubt: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.
- On the tertiary ground, bail can be denied in order to maintain confidence in the administration of justice, having regard to all the circumstances ... Bail can only be denied if the court is satisfied that in view of the factors enumerated under s. 515(10)(c) and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309.
[26] When determining whether detention “is necessary to maintain confidence in the administration of justice”, the following factors are set down in s. 515(10)(c): (a) the apparent strength of the prosecution’s case; (b) the objective gravity of the offence in comparison with other offences in the Criminal Code; (c) the circumstances surrounding the commission of the offence, whether a firearm was used; and (d) whether the accused is potentially liable for a lengthy term of imprisonment. R. v. St-Cloud
[27] The court must consider all the circumstances of each case with particular attention to the four enumerated factors. However, no single circumstance is determinative. The court is required to consider the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all the relevant circumstances. The decisive question to be asked after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice: R. v. St-Cloud.
The Secondary Ground
[28] This is a reverse onus case. It is the defence’s onus on a balance of probabilities to show cause why detention is not justified.
[29] The Applicant filed an affidavit but did not testify at the hearing. He attested to understanding the seriousness of his offences and the importance of complying with the conditions of his bail. He proposes three sureties, his mother, Michelle Ledinek, his mother’s friend Adrianna Palmer, and his fiancée’s stepsister, Sartaria John. The Applicant’s mother and Ms. Palmer will reside at 73 Knapson Drive, Newmarket with the Applicant, Ms. McNeil and their young daughter. Ms. John lives a moment’s drive from the surety residence and can conveniently arrive at the surety address if needed.
[30] The three sureties swore affidavits and testified at the hearing. The sureties have known each other and the Applicant for periods from several years to many years. They state that they are aware of the Applicant’s criminal past and the offences before the court and that the sureties plan to work together closely as a team to supervise him and ensure he complies with the strict terms if released. He will not be allowed to leave the premises without being in the direct and continuous presence of one of his sureties. One of the sureties will be with the Applicant wherever he is in the home. The mother’s bedroom is close to the bedroom of the Applicant and Ms. McNeil will share.
[31] There are features of the plan that impress me as creating an exceptionally secure environment within which to supervise the Applicant.
[32] The home has a security system with interior and exterior cameras. Recordings of rooms inside the home and of the outside of the home can be accessed remotely at any time by the sureties through an App on their cellphones. They will be able to view the Applicant’s movements inside and outside of the home. The doors to exits from the home are secured by deadbolts that lock from inside the home. Only the sureties will have the key to those doors. The Applicant would not be able to leave the home without the key.
[33] The sureties stressed that the Applicant will not be allowed to access any electronic devices neither a computer, iPad nor cellphone or other device. The internet system in the home allows the sureties access to identify what devices are using the service at any particular time. The Applicant will not be able to access the system with a device without the sureties being aware.
[34] The sureties ensured that they will do periodic random searches of the home, the Applicant’s belongings and bedroom to ensure he does not have drugs, a firearm nor any electronic devices hidden. They will not allow the Applicant to contact any of his friends or have any of them over to the home.
[35] Ms. Palmer conducts an online fragrant candle and essential oil retail business from the basement of the home. To occupy the Applicant’s time, she will require the Applicant to assist with the business by labelling and packaging products for delivery. The mother testified she wants the Applicant to complete the nine credits he requires to graduate from high school. She hopes to be able to get him enrolled in online courses to this end, his use of the computer to be supervised at all times by her.
[36] The sureties are willing to pledge a total of $27,000.00. They each testified they could not afford to lose the money they have pledged. I found the sureties to be in earnest about their duties and in their insistence to ensure the Applicant complies with their expectation. They were emphatic that they would have no hesitation to call the police and cancel their pledges if the Applicant refuses to comply with the conditions of bail and their house rules.
[37] I do note that the mother was somewhat defensive of and naïve about her son and the extent of his involvement in a criminal lifestyle in testifying that he was just in the wrong place at the wrong time and he got into trouble because of the influence of a bad group of friends. While this caused me some concern, I find those sentiments did not overwhelm her intention with the other sureties to keep close supervision and control over him.
[38] It is proposed that Recovery Science Corporation provide the electronic monitoring service. Documents are filed explaining the monitoring service, the function of the electronic ankle bracelet and the associated fees. The sureties indicated they understand how the bracelet works and undertake to split the costs of the service. I recognize as Nordheimer, J., as he then was, observed in R. v. Doucette, January 4, 2016 (unreported), electronic monitoring is most effective in conjunction with an effective plan of supervision:
The electronic monitoring does change the calculus, however. While there are weaknesses in electronic monitoring when it comes to other issues relating to the issue of bail, electronic monitoring does significantly reduce the likelihood that an accused person will commit an offence if he or she is released. This is because the accused has to know that in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area.
[39] The sureties will work as a team stepping in for each other if any one of them is not available on any day. They plan to have team meetings every evening at 7:00 p.m. to review the plan and confirm their availability for the next day.
[40] I find the plan to be very solid involving as it does 24/7 supervision by three dedicated sureties who have pledged considerable savings, and which involves electronic ankle monitoring, a home security system with alarms and cameras and interior locking deadbolt locks, and the Applicant not being allowed to use an electronic device or to be outside without the supervision of one of his sureties. The electronic bracelet together with an otherwise very strong plan gives the court confidence there are real obstacles to breach. The Applicant will truly be jailed in the community.
[41] I find the Applicant has satisfied the court there is not a substantial likelihood he will re-offend or interfere with the administration of justice if released. The Applicant has succeeded in meeting the secondary ground.
The Tertiary Ground
[42] The four enumerated factors under s. 515(10) of the Criminal Code and other relevant factors must be considered in the context of the case.
[43] As for the strength of the Crown’s case under s. 515(10)(a), it is obvious that at such an early stage in the prosecution, the case might appear stronger than it might be later on with more disclosure. The strength of the Crown’s case lies in the viability of the evidence that establishes that the Applicant was one of the persons who returned fire on the assailants parked on the 401. The video recording shows many return shots from the restaurant parking lot by several persons with firearms.
[44] The video depicts a maelstrom of people scattering after the shots rang out and others taking cover behind a dumpster to return fire, many with their backs to the cameras during the shooting. It is difficult to discern from the video with any real certainty during the shooting who is who, who is doing what. Only some people can clearly be seen discharging a firearm while for others it is not so apparent.
[45] The Crown filed still images of portions of the video depicting the mêlée on the parking lot capturing, as I understand it, what occurred just before, during and after the shooting. It is clear from some of the stills that the Applicant was present when his clothing on the still is compared to the clothing seized by the police. It is not so evident from the stills and video that the person thought to be the Applicant was one of the persons who discharged a firearm.
[46] The Crown points to a male wearing a green shirt, black jacket and at times a black hat who was crouching down behind the dumpster with others. The Crown submits that the crouching person can be identified by the white lettering on the band at the top of his underwear that appears above his pants. That person appears in some of the images to have camouflage-coloured running shoes and black pants with white stripes on the legs. The Crown suggests this is the Applicant. Although this is an inference that might be drawn in the context of the other evidence, it is not clear that this person has a firearm in his possession. Further, I am not aware of any forensic evidence connecting to a firearm used during the shooting.
[47] As noted earlier, the police seized the Applicant’s clothes at the hospital. They did so without arresting him and without a warrant. The clothing seized were plaid underwear with a waistband with wording that looks similar to that shown in the video and stills. There were also black pants with white stripes, a green shirt, a black jacket, a black hat and camouflage running shoes.
[48] The Crown submits that the police were treating the Applicant as a victim rather than a suspect when they seized his clothing and thus a warrant was not seen to be necessary. A question arises as to the possibility of the defence bringing a s. 24(2) application seeking to exclude the seized clothes. The Defence counsel indicates he will cross-examine the officers about this at the preliminary inquiry. There is a chance if that application is successful and the clothing excluded, that the Crown’s case could be diminished. I find the Crown at this stage has a strong to moderately strong case.
[49] On the seriousness of the offences as per s. 515(10)(b), considering that a firearm was discharged, there is no question we are looking at a very serious crime. Heard on the video is a shocking hale of numerous bullets being fired rapidly. The video plainly depicts some males with firearms in their hands firing indiscriminately towards the 401. Discharging a firearm in a gun battle in a public place where many people are gathered and many cars passing by on the highway is a very dangerous situation. There are definite public safety concerns that must be considered.
[50] There is no question as per s. 515(10)(d) that the Applicant will face a lengthy sentence if found guilty. The offence of discharging a firearm alone carries a lengthy penitentiary sentence especially so given the Applicant’s criminal record. The firearms charges before the court are the third of such offences for the Applicant. Aggravating the current firearm offences is the further fact that the Applicant was on a weapons prohibition at the time.
[51] In considering the circumstances surrounding the offence under s. 515(10)(c), the court must be guided by an inquiry into whether the accused’s continued detention is necessary to maintain confidence in the administration of justice. That consideration must be viewed from the perspective of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law. This includes the presumption of innocence, the right to liberty and the rights guaranteed by the Charter: R. v. St-Cloud, at paras. 72-87.
[52] There is no finite list of circumstances under s. 515(10)(c). R. v. St-Cloud presents some examples of possible circumstances surrounding the commission of the offence that pertain to the victim and the nature of the crime:
… the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.
[53] The circumstances of the accused may also be considered:
Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant.
R. v. St-Cloud, at paras. 61 and 71
[54] The Applicant is a young man, currently 24 years of age. He has no recent employment experience. He did not complete secondary school. He has a lengthy criminal record stemming from his youth to the present which includes two other convictions involving firearms for which he has served time in custody. He has a history of two breaches of court orders including a violation of a firearm prohibition. This demonstrates that the Applicant has problems respecting the court and learning lessons from past punishment. He could pose a danger to public safety. This must be considered in determining whether the Applicant can be released.
[55] The existence of the COVID virus is a surrounding factor that must be considered. It is not a critical balance-tipping factor in this case. The Toronto South Detention Centre has gone through various phases of being virus-free and experiencing varying levels of outbreak among staff and inmates since March 2020. The March 2, 2021 data from the Ontario Ministry of the Solicitor General reveals four staff and four inmates had tested positive for COVID.
[56] It appears that the Applicant suffers from asthma and bronchitis which present as risk factors in a congregant setting. He has provided medical evidence from a telephone consultation on June 10, 2020 with a physician who confirms the Applicant’s condition and his prescriptions for Ventolin and Flovent puffers. The mother testified that her son has suffered from respiratory problems since his childhood. The Applicant also suffers from a condition affecting his rectum for which he received surgery while in custody which did not remedy the condition.
[57] The plan of supervision is one of the factors to be balanced under s. 515(10)(d). Given the dangerous nature of the offences, a very strong plan is critical in this case. Looking at the circumstances as a whole, I find the public safety concern is addressed on the secondary ground by a remarkably strong plan of supervision. I find the plan assuages any concerns the public might have with confidence in the administration of justice: R. v. Mordue (2006), 2006 ONCA 647, 223 C.C.C. (3d) 407, at para. 23.
Release Order
[58] Gaddiel Ledinek shall comply with the following conditions on release: (a) Gaddiel Ledinek shall reside with his mother, Michelle Ledinek and Adrianna Palmer at 73 Knapson Drive, Newmarket, Ontario; (b) He shall be under 24-hour a day, 7-day per week house arrest only being allowed outside the residence if in the direct and continuing presence of one of his sureties; (c) He shall not have access to a cellphone, computer, iPad or another electronic device unless under the direct and continuous supervision of a surety; (d) His residential sureties shall be his mother, Michelle Ledinek, and Adrianna Palmer who shall reside at 73 Knapson Drive, Newmarket, Ontario during the period of Gaddiel Ledinek’s release. (e) Sartaria John shall be a non-residential surety who shall reside at 68 Harding Park Street, Newmarket during the period of Gaddiel Ledinek’s release; (f) Michelle Ledinek shall post security for bail in the amount of $10,000.00; (g) Adrianna Palmer shall post security for bail in the amount of $7,000.00; (h) Sartaria John shall post security for bail in the amount of $10,000.00; (i) A GPS ankle monitor shall be installed by a representative of Recovery Science Corporation at the Toronto South Detention Centre before Gaddiel Ledinek is released from custody; (j) Michelle Ledinek shall be principally responsible for the payment of the initiation and monthly fees for the GPS ankle monitor system by coordinating the contributions of the other two sureties and ensuring the payments are made to Recovery Science Corporation; (k) Gaddiel Ledinek shall not be within 500 metres of Blaxx Restaurant & Dive Bar located at 55 Beverly Hills Dr., North York, Ontario; (l) He is to have no contact with Traequan Mahoney directly or indirectly except while at court or through counsel for the purpose of preparing a defence; (m) He is prohibited from having possession of a weapon as defined in the Criminal Code which includes any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance; (n) Gaddiel Ledinek is prohibited from possessing any illegal non-prescribed controlled substance as provided by the Controlled Drugs and Substances Act; and (o) He shall abstain from the consumption of alcohol or other intoxicating substances.
B.A. Allen J. Released: March 10, 2021