Court File and Parties
PARRY SOUND COURT FILE NO.: CR-21-04-00BR DATE: 2021-04-29 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. D’Angelo Dimitrius Kingston
BEFORE: The Honourable Madam Justice K.E. Cullin
COUNSEL: Wesley Beatty, for the Provincial Crown Robin Bellows, for the Federal Crown Alvin Pollard, for the Defence
HEARD: April 23, 2021
ENDORSEMENT
[1] This matter appeared before me for a bail review. The applicant, D’Angelo Kingston, was ordered detained on February 5, 2021 following a contested bail hearing before Justice of the Peace C. Mews (“J.P. Mews”). Both the provincial and federal Crown responded and opposed the applicant’s release.
[2] On April 23, 2021, I provided a brief oral decision releasing the applicant from custody with conditions. This endorsement represents my reasons for that decision.
Background
[3] The applicant, D’Angelo Kingston (“the applicant”), is 19 years of age and is a resident of Toronto, Ontario.
[4] On April 6, 2020, the applicant was arrested with three co-accused for allegedly being in possession of a stolen vehicle. At the time of his arrest, a knife was found in the front pocket of his sweater. He was charged with Possession of Stolen Property Over $5,000 and Carrying a Concealed Weapon. He was released on his own recognizance in the amount of $500, with no deposit.
[5] On January 15, 2021, the applicant was operating a motor vehicle on Highway 69, south of Pointe au Baril; he was driving southbound toward Toronto. In addition to the applicant, there were four passengers in the vehicle. The vehicle was leased by the wife of one of the passengers; that passenger was asleep in the backseat of the vehicle.
[6] At approximately 7:55 p.m., the applicant was pulled over for a routine traffic stop; the police allege that he was speeding and driving with his high beam headlights on. During the traffic stop, the police allege that they formed reasonable and probable grounds to search the vehicle. That search revealed the following:
a. One bag (approximately 11g) of “Jetpack Premium Cannabis” in the front passenger footwell of the vehicle;
b. A small black and silver digital scale covered in a white powdery residue suspected to be cocaine in the rear storage compartment of the front passenger seat;
c. A sealed syringe and a cannabis grinder;
d. A grey backpack containing 149 grams of cannabis, initially observed in the possession of one of the vehicle passengers. The cannabis was divided into 5 bags, each containing approximately 26 to 31 grams;
e. A baseball-sized wrapped and tied bag containing 30g (approximately 1 ounce) of suspected cocaine in the rear of the vehicle (it is not clear whether it was in the rear seat or the rear trunk area); and,
f. A dark blue backpack containing a handgun with a magazine and two rounds loaded, located in the trunk, behind the vehicle’s rear seats.
[7] When they were initially detained, the applicant and three of the vehicle’s passengers provided false names to the police. During the search of the vehicle and the arrest of its occupants, all were found to be in possession of cash which was seized by the police.
[8] All the occupants of the vehicle were detained in custody. The applicant was charged with the following criminal offences:
a. Possession of a firearm without a licence, Possession of a firearm while the occupant of a motor vehicle, Possession of a weapon for the purpose of committing an offence, and Possession of a loaded restricted weapon without a licence;
b. Trafficking (cocaine);
c. Possession of proceeds of crime not exceeding $5,000;
d. Unlawfully possessing more than 30g of dried cannabis in a public place and Unlawfully possessing cannabis for the purpose of distribution;
e. Breach of Recognizance (re: possession of firearm); and,
f. Providing false identification to a police officer.
[9] The other occupants of the vehicle were charged with substantially the same offences.
[10] The applicant was also charged with provincial offences arising from his operation of the motor vehicle: failing to use lower beam headlights; speeding; driving without a licence; and driving a vehicle containing cannabis. He was also charged for an offence arising from his failure to observe the province’s pandemic lockdown.
[11] Bail hearings were conducted. Three of the occupants, including the applicant, were ordered detained. Two of the occupants, one of whom was a young offender, were released to sureties.
[12] The applicant’s bail hearing was conducted on February 3, 2021 and February 5, 2021. The Crown brought an application pursuant to s.524 of the Criminal Code to revoke the applicant’s recognizance of bail from April 2020; that request was not opposed by the applicant. The applicant was required to satisfy a reverse onus at the hearing. Justice of the Peace Mews determined that the applicant had failed to meet his onus on the secondary and tertiary grounds and ordered his detention pending trial.
General Legal Principles re: Bail Review
[13] The applicant’s request for bail review has been submitted pursuant to s.520 of the Criminal Code.
[14] A bail review is not a hearing de novo. The presiding justice must determine whether it is appropriate to exercise their power of review, within the following parameters as set out in R. v. St-Cloud, 2015 SCC 27 at paras. 92, 120-21:
a. Whether there is admissible new evidence that demonstrates a material and relevant change in the circumstances of the case;
b. Whether the decision denying release contains an error of law; or,
c. Whether the decision denying release contains findings or reasoning which are clearly inappropriate (specifically, whether the court gave excessive weight to one relevant factor or insufficient weight to another).
[15] If the court determines that it is appropriate to exercise its power of review, the presiding judge may conduct an independent review of the evidence in accordance with s.515(10) of the Criminal Code: R. v. St-Cloud, paras. 138-139. If the independent review determines that release is appropriate, terms of release may be ordered in accordance with s. 515 of the Criminal Code.
[16] Pursuant to s.520(7)(e) of the Criminal Code, the onus at a bail review hearing rests with the applicant.
[17] At a bail review, and indeed throughout the detention process, the court must always be mindful of the accused’s constitutional right to be presumed innocent. Corollary to that is the right not to be denied bail on reasonable terms without just cause: R. v. Antic, 2017 SCC 27, para. 67.
[18] In his submissions, defence counsel also raised the issue of parity, noting that two of the co-accused in this matter have been released on bail with conditions. While parity is not codified as a factor to be considered in assessing the appropriateness of bail, some courts have acknowledged that detaining one co-accused while releasing another for the same charges may adversely impact the public’s confidence in the administration of justice: R. v. Hennessy, 2008 ABCA 240, para. 10.
Evidence Considered
[19] I have had the benefit of comprehensive materials to assist in my review of the accused’s detention. These materials have included the following:
a. Information 20-45001277 and Release Order (Toronto);
b. Information’s 21-30100113, 21-30100114, 210014, 30100008 (Parry Sound);
c. Affidavit of Filessa Kingston and Oral Evidence of Filessa Kingston;
d. Affidavit of D’Angelo Kingston;
e. Affidavit of Alora Brunatti and attached Supplementary Occurrence Report;
f. Correspondence of Recovery Science Corporation, dated April 22, 2021 and appendix containing information re: compliance monitoring for criminal cases;
g. Transcript of Bail Proceedings, February 3, 2021;
h. Transcript of Bail Proceedings, February 5, 2021;
i. Toronto Police Service – Charge Sheet re: Occurrence No. 20-672847;
j. General Report re: Occurrence No. NP21005599; and,
k. Bail Hearing Synopsis (identified as RAB Synopsis).
New Developments Following Bail Hearing
[20] There have been several new developments since the applicant’s bail hearing.
[21] First, sadly, the court was advised that the applicant’s grandmother, Avril Kingston, who was initially proposed as one of his sureties, has died of COVID-19. The applicant’s great-grandmother has also recently died of COVID-19.
[22] The applicant’s mother, Filessa Kingston, has been proposed as the applicant’s surety. The applicant has also submitted correspondence from Recovery Science Corporation, confirming its readiness to provide monitoring for the applicant in the event of his release. The monitoring would be conducted with a GPS ankle bracelet.
[23] With respect to the applicant’s outstanding criminal charges in Toronto, the court was advised that the Possession of Stolen Property charge has been withdrawn. Counsel for the applicant advised the court that a plea agreement has been discussed for the remaining charge of Carrying a Concealed Weapon with a proposed joint sentence recommendation for a conditional discharge. Mr. Beatty for the Crown indicated that it was his information that there would not be a joint submission but rather open submissions. Either way, it appears that the applicant’s Toronto charges are in the process of being resolved, and that it is unlikely that they will result in imprisonment.
[24] The Crown submits that it has further evidence supporting the strength of its case, in the form of photographs and videos taken from the cellphones of the applicant and the co-accused, which arguably implicates them in criminal activities.
Issues & Analysis
Is there admissible new evidence that demonstrates a material and relevant change in the circumstances of the case?
[25] In R. v. St-Cloud, the Court held that, for new evidence to be admissible at a bail review hearing, the four criteria established in Palmer v. The Queen, 1979 CanLII 8 (SCC) must be met, subjection to modifications adapted to bail review proceedings. These criteria are as follows:
a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at the bail hearing. The court noted however that, in addition to considering “truly new” evidence, a court may also consider, “evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable” at para.132.
b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the hearing.
c. The evidence must be credible in the sense that it is reasonably capable of belief. The evidence must also be interpreted using the relaxed rules of evidence that apply to bail hearings at para. 136.
d. The evidence must be such that if believed it could reasonably, when considered with the other evidence at the hearing, be expected to have affected the result.
[26] It is my view that the new evidence submitted by the applicant is admissible, and that it demonstrates a material and relevant change in the circumstances of his case.
[27] The Crown argued that the evidence of Filessa Kingston was available at the applicant’s initial bail hearing, but that the applicant did not rely on that evidence as it was unfavorable to him. They argued that Filessa Kingston’s evidence did not support a material change in circumstances supporting bail, but rather that it represented a regression in the bail plan proposed by the applicant.
[28] I would note first that Filessa Kingston offered a credible and reasonable explanation for the withdrawal of her evidence at the bail hearing. She advised the court that the applicant’s previous counsel recommended a bail plan proposing the applicant’s grandmother, Avril Kingston, and his sister, Brianna Kingston, as his sureties. Counsel advised the family that the proposed plan represented a change in the applicant’s environment and offered him the possibility of curfew conditions as opposed to house arrest. They accepted that advice.
[29] With respect to whether the bail plan proposed at his hearing constitutes a material change in circumstances, I am mindful of the comments of Hill, J. in R. v. Ferguson, [2002] O.J. No. 1969 at para. 17, who noted that simply “reshuffling the deck” to submit different sureties is insufficient to support a material change in circumstances. The court must assess whether the commitment and nature of the new surety plan materially calls into question the reasons for detention.
[30] I find that the proposed bail plan by Filessa Kingston represents a material change in the applicant’s circumstances. It addresses several of the concerns raised in the decision of J.P. Mews. Unlike his grandmother and his sister who had no history of providing structure and discipline to the applicant, the applicant’s mother has been his primary caregiver throughout his life. Under his mother’s care, the applicant completed high school, assisted in the care of his siblings, participated in extra-curricular activities, worked, and progressed through the first 18 years of his life without criminal involvement. In her oral evidence, the applicant’s mother acknowledged that he has fallen onto a bad path and that, as his mother, she needs to take an active role in righting his course. It is my view that she is a substantially stronger candidate to act as a surety for her son.
[31] Filessa Kingston also presents with the ability to guarantee her surety with $5,000, as opposed to the $1,000 to $2,000 proposed by the applicant’s grandmother and sister. She has taken active steps to enrol her son in an educational program to assist him in occupying his time productively. A GPS ankle monitoring device is available if required by the court. These facts represent enhancements to the plan proposed by the applicant at the original bail hearing.
[32] I further find that the death of the applicant’s grandmother and great-grandmother from COVID-19 represents a material change in his circumstances. It is clear from the evidence at this hearing and at the applicant’s prior bail hearing that he enjoyed a close relationship with his grandmother. It is my view that this tragic turn of events will serve as an additional deterrent to the applicant in extending his activities outside of his immediate household. His mother testified that his younger sister is vulnerable to COVID-19; it is my view that he is less likely to engage in conduct that would put her at risk having experienced first-hand the pandemic’s worst possible outcome.
[33] I find that this evidence would have materially impacted the decision at the applicant’s bail hearing; it justifies an independent review of the applicant’s detention.
Did the decision denying release contain an error of law?
[34] It is my view that the decision of J.P. Mews failed to provide sufficient reasons for the findings in support of her decision to deny release. This insufficiency was an error in law that justifies an independent review of the applicant’s detention.
[35] The sufficiency of judicial reasons is an issue that has been the subject of significant appellate review. While reasons are not held to the standard of perfection, they must generally justify and explain the decision such that all parties to the proceeding, the public, and a subsequent court on review, can understand the result. As Hill, J. noted in R. v. Brooks, 2001 CanLII 28401 at para. 45:
It has never been suggested that the judicial official presiding in a busy bail court, in providing reasons for detention, need deliver breathless prose or slavishly track the wording of one or more of the paragraphs of s. 515(10) of the Code. However, the text of the reasons must, in some meaningful and coherent fashion, expose analysis related to the primary, secondary or tertiary grounds described in that statutory provision.
[36] In her decision, J.P. Mews found that the applicant and three of his co-accused were “four young drug dealers” and that they were engaged in, “an established drug-dealing enterprise or effort”. This finding of fact weighed heavily in her decision to deny bail. What is unclear, however, is how she arrived at this finding. To the extent that she referred to the evidence, she made significant factual and inferential errors, including the following:
a. She referred to the applicant being in possession of a “substantial amount of Canadian currency” with no discernable source other than the sale of drugs, but failed to make any reference to the uncontradicted evidence that he lived at home with his mother and was in receipt of CERB benefits in the amount of $2,000 per month.
b. She referred to the applicant as travelling to Northern Ontario to pursue “illegal activities” and to “distribute drugs”, with no evidentiary basis beyond mere speculation to support those findings.
[37] It is also my view that J.P. Mews failed to discharge her obligations pursuant to s.493.2 of the Criminal Code, which required that she give particular attention to the circumstances of the applicant as an accused person who belongs to a vulnerable population that is overrepresented in the criminal justice system and is disadvantaged in obtaining release. To the contrary, J.P. Mews made findings that appear to be grounded in inappropriate racial stereotypes. This also constituted an error in law.
[38] At the applicant’s bail hearing, Mr. Beatty on behalf of the Provincial Crown, submitted the following:
And what is notable is that when he was stopped – when the vehicle was stopped, he identified himself as Jermaine Lyle…We really do have to look at what kind of optics are presented when somebody…tells police the wrong name. What sensible person does that? You know, the African-American – African-Canadian community has had a long history of having difficulties with police officers. It’s a history that is replete with abuses by police officers, et cetera. But there’s nothing that justifies, in this particular case, you know, identifying himself to a police officer in an incorrect way, other than the offences that are now alleged – the drug offences, et cetera, go from there. I think it’s important that we are dealing with a vulnerable community member, Mr. Kingston, and we should be aware of that. But that awareness – I’m just a little bit at sea as – how do we reflect that? How do we address that when we come to the fact that he’s not – he’s not identified himself properly? But for the offences alleged, drug offences, there doesn’t seem to me to be any reason compelling telling the police officer the wrong name, or pushing – pushing that forward.
[39] With respect, the Crown’s submission that, as a young black man, the applicant’s conduct conveyed guilt because he “ought to have known better” constituted racial stereotyping.
[40] Section 493.2 of the Criminal Code required the Justice of the Peace, before making a factual finding, to turn her mind to the historically complicated relationship between young black men and the police and to consider alternative explanations for the applicant’s decision to initially provide a false name.
[41] There is nothing in J.P. Mews’ decision to suggest that she considered the legitimate concerns that the applicant may have had: about escalating his encounter with the police when they discovered that he was on bail and had an outstanding charge for carrying a concealed weapon; about being stopped for driving without a licence; and, about being a young black man stopped by the police in an unfamiliar place, on the side of a highway, at night, in the winter. There is also nothing to suggest that she considered the mitigating fact that he was otherwise co-operative throughout the search of the vehicle and his arrest.
[42] Instead, J.P. Mews accepted the Crown’s submission without question and found that the applicant’s conduct inevitably represented guilty knowledge of the presence of drugs and a gun in the vehicle. This was, in my view, an error of law.
Did the decision denying release contain findings or reasoning which were clearly inappropriate?
[43] In assessing the Crown’s case at a bail hearing, a justice of the peace must weigh the evidence. In doing so, they may make reasonable inferences from any circumstantial evidence: R. v. Piccinini, 2011 ONSC 2524, para. 17.
[44] Circumstantial evidence must be approached with care. As noted by Cromwell, J. in R. v. Villaroman, 2016 SCC 33 at paras. 37-38, the court should view circumstantial evidence logically, and consider other plausible theories and reasonable possibilities to determine whether the evidence can support an inference other than the guilt of the accused.
[45] While the rules of evidence at a bail hearing are relaxed, the court should still conduct a robust and critical review of the evidence to assess the strength of the case before it. In the absence of extenuating circumstances, an accused should not be detained in pretrial custody solely based on inference or speculation.
[46] In ordering the detention of the applicant, J.P. Mews made clear findings that the applicant had been involved in a carefully planned illegal drug enterprise. Her decision contained no reasoning to explain how she arrived at that inference or whether she considered any other plausible, less insidious, explanation for the circumstances disclosed by the evidence.
[47] J.P. Mews’ decision failed to acknowledge or consider the following evidence:
a. The fact that the cannabis seized from the knapsack was wrapped in five individual packages which were generally within the permissible carrying limits provided in the Cannabis Act, S.C. 2018, c.16, for the five occupants in the vehicle. To the extent that the individual packages exceeded those limits, it was a ticketable offence pursuant to that Act.
b. The fact that the cocaine seized from the vehicle amounted to slightly more than one ounce of cocaine, which was also within the realm of personal use, particularly given the number of occupants in the vehicle (R. v. Nuttall, 2016 ONSC 7777).
c. The fact that the cannabis grinder and the syringe found in the vehicle were legal and supported an inference of personal use.
d. The fact that the seized firearm was searched on CPIC and there were no records to identify that it was stolen or that it had been used in the commission of an offence.
e. The fact that the applicant and the co-accused were not the subject of surveillance, undercover drug operations or otherwise observed in the process of selling or distributing drugs. They were arrested secondary to a routine traffic stop.
[48] The evidence provided an insufficient foundation on which to conclude that the applicant was a scion of the drug trade and undeserving of supervised release. These findings warrant an independent review of the applicant’s detention.
Does the applicant meet the grounds for release provided in s.515(10) of the Criminal Code?
1. Onus
[49] For the purpose of the independent review of the applicant’s detention, he continues to bear a reverse onus.
[50] As noted by Justice Trotter in his text The Law of Bail in Canada (3rd ed.), (Carswell: Toronto, loose-leaf service, release 2010, p.206):
Reversing the onus of proof does not mean that the accused must disprove the commission of the offence, his or her involvement in it, the strength of the evidence pointing to culpability, or any of the other factors ... that the prosecution might rely upon. The reversal of the onus merely means that the accused must satisfy the judge on a balance of probabilities that, in all the circumstances, his or her detention is not justified on the primary, secondary or tertiary grounds.
2. Primary Ground
[51] J.P. Mews found no concerns with respect to the primary ground, and I concur with this finding. The applicant has no prior criminal record, nor was there any evidence before the court that he has failed to attend any scheduled court appearances. He has retained counsel and can attend Court remotely or by agent.
3. Secondary Ground
[52] The role of the court in assessing the secondary ground in a reverse onus hearing was well-summarized by J.P. LeBlanc in R. v. Lutczyk, 2013 ONCJ 127 at para. 44:
The Court is cognizant of case law which requires a two-step analysis of the secondary ground: the first step being evidence from which the jurist can conclude ongoing criminal lifestyle; and if so, with the onus on the accused is there a plan of supervision and sureties that will ensure the defendant will probably not engage in further criminal activity or interfere with the administration of justice. The secondary ground involves prediction of future conduct which requires an examination of the accused, the sureties, the amount pledged and the proposed plan of release.
[53] It is not sufficient that there is a mere risk of ongoing criminal activity; the risk must be substantial. As noted by Lamer, C.J. in R. v. Morales, 1992 CanLII 53 (SCC):
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.
[54] While the charges against the applicant are serious, I am not satisfied that the evidence, when viewed in its totality, demonstrates that there is a “substantial likelihood” that the applicant will commit an offence, interfere with the administration of justice, or otherwise endanger the safety of the public while he is on bail. I am further satisfied that the applicant has discharged his onus of demonstrating that any risk about which the court may be concerned can be effectively managed by his bail plan.
[55] In their submissions, the Crown relied upon the decision of Hill, J. in R. v. Whervin, [2006] O.J. No. 443. In many respects, the facts are similar to the present case. In Whervin, the accused was a 20-year-old male with no prior criminal record or outstanding charges and a history of employment. He and a female passenger were found during a routine traffic stop to be in possession of less than 30g of marijuana and 6.7 grams of crack cocaine. Also in the vehicle were a marijuana pipe and rolling papers, 3 cellphones, cash, and a loaded handgun located in the trunk of the vehicle. Hill, J. was satisfied on the evidence that the “profile” of the applicant supported his involvement in “ongoing drug dealing” and, as such, justified his ongoing detention.
[56] The facts in Whervin bear a few key distinctions from the present case which were not highlighted by the Crown or substantially acknowledged by the justice of the peace:
a. In Whervin, the accused owned the vehicle and used it daily; in the present case, the applicant did not own the vehicle and appears to have been driving it for the first time.
b. In Whervin, the vehicle was occupied by the accused and one passenger with no apparent criminal history; in the present case, the vehicle was occupied by five individuals, all of whom had varying degrees of involvement with the criminal justice system.
c. In Whervin, the accused was in possession of two illegal controlled substances; in the present case, the cannabis was legal, the amount located in the vehicle was not significantly in excess of what the occupants collectively were legally permitted to possess, and the excess in their possession was not a criminal offence.
d. In Whervin, the crack cocaine was found in the console of the driver’s door, cocaine residue was found on the driver’s door, and the gun was found in the trunk wrapped in a bandana; in the present case, the cocaine was found in the back of the vehicle and the gun was found in the trunk in a knapsack. The applicant was in the driver’s seat and there is no evidence before the court connecting him to either the cocaine or the knapsack.
[57] The Crown also relied upon photographs and videos accessed from the cellphones of the applicant and the co-accused as new and additional evidence of their involvement in criminal enterprise. I did not have the benefit of viewing the photographs or videos but did receive a written description of them in a supplementary occurrence report. With respect to this evidence, I would note the following:
a. There is no evidence before the court regarding the origin of the photographs and videos, and specifically whether they were taken using the devices or downloaded and, if they were taken with the devices, who took them.
b. While there were photographs and videos on the devices of the co-accused depicting them in possession of firearms, there were no photographs or videos on any devices depicting the applicant in possession of firearms.
c. There was a photograph and a video on the device of a co-accused depicting the applicant holding a “large” sum of Canadian currency. It is not illegal to be in possession of Canadian currency, and there is evidence before the court that historically the applicant has worked and has been in receipt of CERB benefits. While it is possible that these images confirm criminal enterprise, it is equally possible that they were posturing photos for social media or were created in conjunction with the homemade rap videos on some of the devices where such imagery is often prevalent.
d. While there is a video on the applicant’s cellphone which appears to depict a brick of cocaine and pieces being weighed on a scale, it is impossible to determine on the evidence before me the nature of the transaction that this depicted (was it being purchased or was it being sold), who took the video, and whether the video was taken with the applicant’s device or downloaded. I would also note that no “brick” of cocaine was found in the vehicle.
e. There was a video on the applicant’s device depicting him sleeping, which suggests that he was not the only person who had access to his cellphone and that not all the photographs and videos originated from him.
[58] To be clear, I am not operating under the illusion that the applicant is a saint. At minimum, he is consorting with people who are handling firearms and are involved with the drug trade (either as consumers or distributors). At worst, he is an active participant. For the purpose of the secondary ground, however, the applicant is not required to persuade me of his sainthood – he is only required to persuade me that his detention is not necessary for the protection or safety of the public. I find that he has met this onus. In making this finding, I have relied upon the following:
a. It is my view that the applicant has viable defences to the charges presently before the court. The applicant was not operating his own vehicle, there were multiple occupants in the vehicle with varying degrees of prior criminal involvement, and the seized drugs and the firearm were found in areas of the vehicle which were not visible or readily accessible to the applicant as the driver. The quantity of drugs seized were within the realm of personal use and, with respect to the cannabis, the possession may not have constituted a criminal offence.
b. The applicant’s criminal charges in Toronto appear to be substantially resolved on a basis which is unlikely to result in a term of incarceration. I would also note that, while there is obviously a concern that the applicant was in possession of a concealed weapon, I view as a mitigating factor the applicant’s disclosure that the knife was for his “personal protection” in light of the fact that his father was murdered in a robbery in the two years leading up to the offence.
c. While the applicant initially provided a false name to the police, evidence which I have considered in light of s.493.2 of the Criminal Code, he was otherwise co-operative during the search of the vehicle and his arrest. There is also no evidence before me that the applicant has been uncooperative while he has been in custody.
d. The applicant’s mother was a compelling, credible witness on his behalf. She testified that, historically, the applicant has been co-operative and helpful at home and has been amenable to discipline. She testified that he was a good student with plans to attend post-secondary education, that he was involved in chess and basketball, that he assisted her at home with his younger siblings, and that he shared a close and loving relationship with his extended family members, including his recently deceased grandmother. Ms. Kingston’s affidavit evidence also confirmed that the applicant has struggled since his father’s death due to gun violence.
e. The applicant lost his job in February 2020 due to the pandemic. His first charges followed in April 2020. There is no evidence before me of any further interactions with law enforcement until January 2021. Both the applicant and his mother confirm that being idle and unemployed for the last year has not been productive for him. His mother has enrolled him in a virtual education program through the Toronto District School Board, which he can commence on Monday, April 26, 2021; the applicant has expressed a desire to resume his goal of working towards admission to college.
f. While there were weapons charges involved in both the applicant’s encounters with the police, neither involved violence or allegations of violence. There is no evidence before me that the applicant was the subject of an ongoing police investigation for involvement in criminal enterprise. There is no evidence that he handled or was aware of the presence of the firearm, which was concealed in a knapsack in the trunk of the vehicle. There was no evidence that the firearm had been used in the commission of an offence, or that it had been discharged on the day of the applicant’s arrest.
4. Tertiary Ground
[59] In assessing the tertiary ground, a key consideration for the court is the effect of release on the public’s confidence in the administration of justice: R. v. Mordue, 2006 CanLII 31720, para. 25. The court reviews the circumstances of the offence including: the presence of violence; the context of the offence; the role of the accused; and the involvement of others. If the offence is "serious or very violent" or if there is "overwhelming evidence against the accused", then pre-trial detention will usually be ordered: R. v. St-Cloud, 2015 SCC 27, para. 88.
[60] In R. v. Lutczyk at para. 52, J.P. LeBlanc noted the direction given by the appellate courts that detention on the tertiary ground is to be used, “sparingly”, and only after being satisfied that a reasonable member of the community would find it necessary to exercise that authority.
[61] In the present case, J.P. Mews found that the applicant had not discharged his onus under the tertiary ground. In making this determination, she relied significantly upon her finding that the applicant was involved in a criminal enterprise, that a firearm was found upon the applicant’s arrest and that the applicant was travelling outside of his residence during the pandemic.
[62] I have already addressed J.P. Mews’ findings regarding the applicant’s involvement in a criminal enterprise and will not restate my views here. I do not find that the evidence supports a finding of involvement in criminal enterprise that rises to the level of denying bail on the tertiary ground.
[63] The presence of a firearm in the applicant’s vehicle warrants consideration. The proliferation of firearms is a scourge and a cause for public alarm. The public expects firearms offences to be taken seriously by the court as they threaten the safety of the public.
[64] While the court has frequently recognized that firearms offences are sufficient to justify detention on the tertiary ground, this has been balanced by the recognition that there is a “vast spectrum” of firearms offences, not all of which warrant the detention of an accused pending trial. As noted by Ducharme J. in R. v. B.C., [2011] O.J. No. 6661 at para.34, “the tertiary ground will most often be invoked as firearms offences approach the serious end of the spectrum”.
[65] Having regard to the totality of the evidence, it is my view that the involvement of a firearm in this case does not rise to the level of denying bail on the tertiary ground. The firearm was discovered in a knapsack in the trunk of the vehicle. There is no fingerprint or DNA evidence before me specifically connecting the applicant to the firearm. There are no photographs or videos depicting the applicant handling or using a firearm. There is no evidence before me to suggest that the firearm was used in the commission of an offence. It may even be reasonable to infer that the applicant would be disinclined to use a firearm given the circumstances of his father’s death. In my view, the public’s confidence in the administration of justice would not be undermined by releasing the applicant pending the resolution of his outstanding charges.
[66] Finally, J.P. Mews referred to the applicant’s breach of the COVID lockdown restrictions several times in her decision, and specifically referred to it as a basis for justifying detention under the tertiary ground. While I recognize and acknowledge her concerns, I disagree that it should be given any weight in assessing the appropriateness of detention under the tertiary ground.
[67] Any breach of the COVID lockdown restrictions, particularly in furtherance of criminal activity, is a cause for concern by every reasonable member of the public. As the pandemic rages and the public receives news of mounting deaths and financial chaos, I have no doubt that there are some who would advocate to imprison every person who flouts lockdown restrictions. This is unrealistic. If this reasoning were to seep into bail decisions, there is a substantial risk that individuals who would otherwise be granted bail would be detained for conduct that has also been undertaken by otherwise law-abiding citizens. A breach of lockdown restrictions, while troubling, does not support a finding that an accused person should be detained pending trial on the tertiary ground.
[68] Even if this were an appropriate consideration, it is my view that, in the applicant’s case, it is mitigated by the deaths of his grandmother and great-grandmother from COVID-19 while he has been in custody. Given his close family relationships, I have no doubt that their passing will serve as a stark reminder to him about the consequences of the pandemic and the need for restrictions. It is my view that reasonable members of the public would also acknowledge the deterrent effect of this personal tragedy.
5. Propriety of Surety
[69] The Crown has also raised a concern about Filessa Kingston’s appropriateness to act as a surety. It is alleged that, during the first day of the bail hearing for the applicant’s co-accused, Abdul Wafa, Ms. Kingston remained on the Zoom conference in contravention of the court’s direction and then reported information that she received during the conference to the applicant. Mr. Wafa alleged during his next court appearance that the applicant had become aware of certain aspects of his criminal record that endangered his safety while he was in custody.
[70] Ms. Kingston offered a different account. She advised the court that she logged into the Zoom conference for bail court, waiting throughout the day for her son’s matter to be addressed. She divided her attention between the Zoom conference and her three children at home who were attending virtual school. At one point, she returned to the Zoom conference to hear the Justice of the Peace indicating that she had “disobeyed” the court because she remained logged into the Zoom conference. She did not know that she had been asked to log out, because she was not present when the direction had been given. She advised the court that she did not receive any information about Mr. Wafa, nor did she communicate any aspect of the hearing to her son.
[71] I have placed no weight on the Crown’s objections to Filessa Kingston’s ability to act as a surety. There were no transcripts filed to assist the court to understand what had occurred or what directions had been given to Ms. Kingston. There was a question in my mind about why Ms. Kingston would not have been placed into a Zoom waiting room by the court if there was a concern about her presence.
[72] The Crown’s submissions about the concerns expressed by Mr. Wafa are not only hearsay but they also represent self-serving statements by Mr. Wafa, who no doubt would have been searching for any justification for his release from detention. It is possible that he identified an opportunity to allege a threat of danger when he realized that Ms. Kingston had been logged on during his hearing.
[73] Finally, and most significantly, I found Filessa Kingston to be a credible, compelling witness. I believed her evidence. I also believe that she will take her duties as her son’s surety seriously, that she will ensure that he will abide by his conditions, and that she will not hesitate to revoke her surety if he breaches them.
Disposition
[74] The Order of Justice of the Peace Mews, dated February 5, 2021, is vacated pursuant to s. 520(7)(e) of the Criminal Code. The applicant, D’Angelo Dimitrius Kingston born June 24, 2001 is released from custody on the following terms and conditions:
a. That he will be released into the custody of his surety, Filessa Kingston born January 11, 1978.
b. That he will reside with his surety at 205-2010 Sheppard Ave. W., North York, Ontario, M3N 1A1.
c. That he will notify the Officer in Charge (or designate) of any changes in his address within 24 hours.
d. That he will be under House Arrest, and will remain in his residence always except:
i. for medical emergencies involving him or a member of his immediate family (spouse, child, parent, sibling); or,
ii. when he is in the presence of his surety or an adult approved of in writing by his surety, with the approval to be dated and signed.
e. That he is not to contact or communicate directly or indirectly by any physical, electronic or other means, with the following: Abdinasir Aden, Matthew Digiandomenico, Abdul Wafa, or Leshawn Biggart, except in the presence of legal counsel for the purpose of preparing a defence.
f. That he is not to be within 100 metres of any place he knows the above person(s) to live, work, attend school, or happen to be.
g. That he is to attend and actively participate in any education or counselling programs as recommended by his surety and to sign releases so that his surety can monitor his progress.
h. That he is not to possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance, or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
i. That he is not to apply for a Firearms Acquisition Certificate.
j. That he is not to buy, possess, or consume any illegal substances unless lawfully prescribed.
k. That he is to possess only one cell phone or one cell phone SIM card registered in his name.
l. That any internet access is to be permitted only under the strict supervision of his surety or designate.
[75] I am not imposing a condition requiring the applicant or his surety to pay a deposit or a cash bail to secure his release. As noted in R. v. Antic at para. 67(h), “cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable”. I note that Filessa Kingston has the financial ability to satisfy her guarantee and that the applicant has the threat of re-incarceration in the event of a breach of his conditions of release. It is my view that these consequences impose a sufficient coercive incentive to ensure compliance with the recognizance.
[76] I have also elected not to require the applicant to submit to a GPS ankle monitoring device, since I have imposed house arrest as a condition of his release. Had I permitted him to be in the community outside of the presence of his surety, then I would have required monitoring. It is my view that his whereabouts will be sufficiently monitored by his surety since I am requiring him to be either in her presence or in the presence of her authorized designate at all times.
[77] I am directing that a copy of this decision be filed in the relevant court files at the Ontario Court of Justice in Parry Sound and the Ontario Court of Justice at 1000 Finch Avenue West in Toronto so that it is available if required for any future proceedings involving the applicant.
[78] This matter is otherwise adjourned to May 20, 2021 (Ontario Court of Justice, Parry Sound).
The Honourable Madam Justice K.E. Cullin
Date: April 29, 2021