COURT FILE NO.: CR-20-191 & CR-21-836
DATE: 2021 06 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Jelena Vlacic for the Crown Respondent
- and –
B.R.
Applicant
Brian Crothers for the Applicant
HEARD: June 18, 2021 by video conference
PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE ONLY WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES
JUDGMENT ON SECTION 520 BAIL APPLICATION
D.E HARRIS J.
[1] This is the third bail review application I am conducting for the Applicant. In the first, an application by the Crown under Section 521 of the Criminal Code in September of 2020, I vacated another judge’s order for the Applicant’s release and ordered his detention. In my opinion, there had been no valid material change of circumstances since Justice Wells detained the Applicant at the first instance bail hearing in March of 2020: R v. B.R., 2020 ONSC 5843 (No. 1).
[2] In the second review in February of 2021, this time brought by the defence under Section 520 of the Code, while determining that there has been a material change of circumstances, the application for release was dismissed on the merits and the Applicant detained on the secondary and tertiary grounds: R v. B.R., 2021 ONSC 1210 (No. 2). This present ruling should be read in conjunction with the two previous rulings.
THE EVIDENTIARY AND PROCEDURAL BACKGROUND
[3] On this third review, the Applicant again argues that there has been a material change of circumstance and that the secondary and tertiary grounds have both been satisfied. The central fact behind both the Applicant’s threshold and ultimate argument is that at the recent preliminary hearing, the complainant Mr. Alves has been exposed as a much weaker and more unreliable witness than he was believed to be heretofore.
[4] There are two sets of charges against the Applicant. He is accused of attempted murder for shooting Alves outside a bar with a handgun at point blank range. The second set of charges alleged that the Applicant threatened Alves with death if he testified against him on the attempt murder case. For this, the Applicant is charged with intimidation of a justice system participant and threatening death.
[5] These are the allegations on this second set of charges. Alves was a reluctant witness from the start. At the bar on the night of the shooting in September of 2018, Alves and the Applicant exchanged words. Alves then attacked the Applicant with his fists outside the bar as the Applicant was driving away with several others. It was in reaction to this assault that the Applicant allegedly shot Alves in the chest. Alves did not come forward and make a statement to the police until December 2019, just weeks before the attempt murder trial was to commence. Alves failed to show up for the January 6, 2020 trial, which had been converted into a preliminary hearing. In the days before the preliminary hearing, he had expressed fear of retaliation and had shown interest in the witness protection program.
[6] Alves was missing for over a month despite law enforcement efforts to find him. On February 16, 2020 the officer-in-charge received a social media message from Alves saying that he was being held at a specific location against his will. The police tactical squad performed a dynamic entry and found Alves chained to a bed at his cousin Alex Barreira’s. Alves gave a statement to the police that day. He said that the Applicant threatened Barreira that if the complainant testified against him in court, he would kill Barreira, the mother of Barreira’s child and Alves. The allegation is that Barreira kidnapped Alves to ensure that he did not testify against the Applicant. Barreira is charged as well as are two other persons.
[7] The Applicant has now been committed for trial on the intimidation set of charges. He was committed to trial on the attempt murder back in March of 2020. A jury trial is scheduled on the attempt murder for the early new year, 2022. The case with respect to intimidation is to go to trial before a judge sitting without a jury in the summer of 2022. There are several co-accused, including Barreira.
[8] As mentioned, this bail review is posited on the complainant’s evidence at the preliminary hearing on the second set of charges. The preliminary hearing took place in April, a little more than two months ago. There is no disagreement between counsel that the complainant’s credibility and reliability on the witness stand at the preliminary hearing were unimpressive.
[9] This is a summary of some of the more problematic evidence from Alves given on the intimidation preliminary hearing. In examination-in-chief, Alves testified that he believed the Applicant shot him, the subject matter of the attempt murder charges, and said he was subsequently threatened and as a result wanted to enter the witness protection program. Alves stated that his memory was poor due to a brain injury he had previously suffered. He often answered “I don’t remember” during Crown questioning. At the time he was rescued by the police tactical squad and gave a statement, which he could not remember giving, he said he was high on cocaine and intoxicated from alcohol. The Crown was permitted to cross-examine Alves under Section 9(2) of the Canada Evidence Act. Alves testified as he had mentioned in his statement previously that while being held captive, he overheard a phone conversation between Barreira and the Applicant, in which the Applicant threatened to kill him, Barreira and Barreira’s family. Alves did not hear the voice on the other end of the phone but was told by Barreira that the Applicant had threatened him. Alves confirmed that he was chained up by Barreira because of the threats that had been made by the Applicant.
[10] It was at this point that Alves’s evidence veered off its previous path. Alves testified that Barreira and his aunt did not kidnap him but rather the whole situation happened because the Applicant sent his two former co-accused on the attempt murder—their charges were withdrawn--after him. Fear of the former co-accused was a consistent theme in his evidence.
[11] Alves clarified during the Crown’s cross-examination that he chained himself up because he feared the Applicant. He stayed at Barreira’s for protection. Everything he had previously said about his cousin and his aunt were lies. Alves testified under defence cross-examination that due to his reckless behaviour while under the influence of heavy drug use, he has tied himself up before to stop doing something he regrets later. When high on cocaine he hallucinates and his memory is poor.
[12] Alves agreed that he was free to come and go while staying at Alex’s mom’s house, but that he would chain himself up when drinking and using a lot of drugs to keep himself out of trouble. Alves agreed that he was the only one who controlled the chaining up; Barreira did not chain him up. He was worried that if he were not chained up and got high, he would run. Alves said he had ongoing fear for his life and that he felt the Applicant was to blame.
[13] There were times while staying with Barriera that Alves recalled having normal conversations with Alex’s mom and sister and they would make him a coffee. He testified that he was not always chained up while staying there. He went shopping with Barreira several times and went to Barreira’s hockey games. Alves admitted to having his own court date for an outstanding criminal case in January that he did not attend.
[14] Alves recalled attending a Peel Regional Police station on April 8th, 2021 for the purpose of giving a video statement. He recalls being in a normal state of mind and not under the influence of drugs or alcohol. Alves confirmed that he told the police on video that the kidnapping was false, that his life was not in jeopardy, and that he had said otherwise because he was high and intoxicated.
[15] Alves testified that he was worried that when he got high, it could lead to new criminal charges, such as break and enters. He agreed that the whole point of laying low for the 6 weeks was so that he did not have to go to trial and would not be found by the police. Alves agreed that during the 6 weeks he had access to the internet, and that he could message friends.
[16] Alves testified at one point in his cross-examination that Alex Barreira did not tell him he was threatened, or his family was threatened. Alex never told him he had to kidnap and hold him captive. Alves agreed that during the first few weeks of hanging out, it was fine but became boring after a while. As time went on, he became more stressed, and used more drugs. Due to his irrational behaviour on drugs, as time went on, Alves would lock himself up for longer time periods.
[17] Mr. Alves testified that hearing about R.’s trial getting postponed again and again, began to drive him crazy. Alves testified in response to defence cross-examination that it was a mistake to message the police back on February 16, 2020 as he was not actually kidnapped. He agreed that because of his drug use and state of mind he did not have the capacity to think of the consequences of messaging the police at that time.
[18] Alves testified that he was worried about missing his own court appearance due to the significant jail sentence he received before for a fail to appear for court. Mr. Alves agreed that it is possible, in his irrational state of mind, that if he called the police while he had locked himself up, it would be like a get out of jail free card. Lastly, Alves acknowledged that while in the initial process of the witness protection program, that he obtained new criminal charges, including an aggravated assault where he stabbed someone in the neck, purportedly in self-defence.
[19] I do not intend to elaborate in any detail on the effect of his preliminary hearing evidence on Alves credibility and reliability. Obviously, it was damaging. The evidence with respect to chaining himself up appears absurd and unbelievable. It is worth mentioning, however, that Alves did maintain at least at several points that the Applicant had made a threat against his life. His evidence vacillated on the issue. Ms. Vlacic, in her written submissions, accurately summed up Alves preliminary hearing evidence:
Mr. Alves’ admittedly contradictory evidence can be characterized into three narratives: 1. The “I don’t know/ I don’t remember” narrative – where Mr. Alves professed a total lack of memory for all events; 2. The “sympathetic but ultimately inculpatory” narrative – where Mr. Alves acquiesced that he had been kept chained in by his cousin … but that Mr. Barreira’s hand was ultimately forced by the threats delivered by [R.]; and, 3. The “ruse/ self-imposed chaining” narrative – wherein Mr. Alves took responsibility for chaining himself up absolving Mr. Barreira and all other parties of any responsibility.
CONCLUSION
[20] Mr. Carothers argues that the value of Alves’ account has been materially diminished by his preliminary hearing evidence. This constitutes a material change of circumstances and should lead to his release.
[21] Ms. Vlacic takes the position that when bail review ruling No. 2 is examined, nothing has changed. The ruling foresaw the problems with Alves’s evidence and approached the issue of bail with those infirmities in mind.
[22] In my view, in approaching the material change of circumstances issue, it is important to recognize the predicament in which Alves finds himself. Fear for his life pervades his evidence. The act of being shot would reasonably be expected to produce a fear for his safety particularly in the milieu in which it occurred. It appears that this was in fact the case. Alves came forward and made a police statement only after more than a year had passed since the time of the incident.
[23] There has now been a judicial finding by the preliminary hearing judge that there is a prima facie case to support the allegation that the Applicant threatened Alves and others with death if he testified against him on the attempt murder. The threat to his life from a person who had already allegedly shot him, together with the experience of being watched over by Barreira for six weeks, would cause any reasonable person to become even more afraid for their safety than they had been before. It is likely that this fear has played a significant role in the destruction of Alves’ credibility and reliability on the witness stand. Clearly, he is afraid of his cousin Barreira as well.
[24] I agree with Ms. Vlacic that the flaws in Alves’ preliminary hearing evidence which have now come to pass were predictable. Fear is the motivating element roiling his evidence. At the time of the last review, this fear was clearly manifest. Alves said he did not want to testify. His statement to this effect was the basis for the finding of a material change of circumstance:
6 … The case on the intimidating and threatening has weakened as the alleged victim has expressed an unwillingness to testify for “personal reasons” and is unreliable.
10 A strong Crown case is virtually a lynchpin to the bail decision under both secondary and tertiary grounds…
11 I will delve into the factual circumstances and legal implications of Alves’ reluctance to testify more fully below. For now it is enough to say that his reluctance weakens the Crown’s case and makes it less likely that the Applicant will be found guilty. I accept as well that there may be reliability and credibility concerns with his evidence. It can no longer be said, as Justice Wells did, that the case on the intimidation is “very strong.” The diminution in the Crown’s case “could have affected” the detention decision and therefore constitutes a material change: St. Cloud at para. 137.
(Emphasis Added)
[25] After this finding of material change, it was held on the full review analysis that the damage to the Crown’s case was not irreparable:
26 Although the case against the Applicant has been weakened by Alves reluctance, the Crown nonetheless has effective tools at its disposal to present a substantial case to prove the Applicant’s guilt. If Alves deviates from his statement, the Crown can use Section 9(2) of the Canada Evidence Act to confront him and push him back to his previous statement and preliminary hearing testimony inculpating the Applicant. Failing success on that line of attack, the Crown can apply to admit Alves’ prior statement under the principled exception to the hearsay rule: R. v. B. (K.G.)(1993), 1993 CanLII 116 (SCC), 19 C.R. (4th) 1, 79 C.C.C. (3d) 257, [1993] 1 S.C.R. 740 (S.C.C.). The preliminary hearing evidence is almost certainly admissible under the principled exception: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, 111 C.C.C. (3d) 129 (S.C.C.).
[26] Based on these passages from ruling No. 2, I agree with Ms. Vlacic that what has now occurred at the preliminary hearing was already baked into the last ruling. Alves stated reluctance was an unmistakable harbinger of his future as a witness. It is perhaps remarkable that he testified at all and that a good part of his evidence directly implicated the Applicant.
[27] The surface of Alves’ evidence at trial, like at the preliminary hearing, is likely to be contradictory and inconsistent. Any value of Alves’ as a witness must be found below the surface: in his preliminary hearing testimony from the attempt murder—in which he testified at length about the threat against him and his kidnapping—in other prior statements, and in the considerable circumstantial evidence at the Crown’s disposal. Alves’ accusations are frozen and incapable of being significantly enhanced—or diminished —by anything he now says at trial. However, the path of his evidence traces a line which, together with the Applicant’s powerful motive to threaten Alves to ensure he did not testify on the attempt murder, demonstrates a persuasive case for conviction on the intimidation allegation.
[28] Remedies to fortify the Crown’s case were specifically contemplated in the last ruling, as seen in the quote above from paragraph 26. As a remedy to support his veracity, resort to Section 9(2) of the Canada Evidence Act was alluded to as was the likely need to invoke the principled exception to the hearsay rule. The former has already been used at the preliminary inquiry. These remain effective tools in the Crown’s arsenal to advance their case at trial. The strength of the case is premised on these circumstances, not on Alves’ testimonial presentation.
[29] For these reasons, on both secondary and tertiary grounds, the threshold to justify a new examination of the detention order has not been crossed. What has now happened comes as no surprise. It was already incorporated in the decision to refuse release on the last occasion. There is no significant legal distinction between Alves’ statement before the last bail review that he was not going to testify and testifying poorly, as he in fact did. Both were motivated by fear, fear that a finder of fact could use to discount the vagaries in his evidence. The cause was the same in both and the impact on the Crown’s case has been the same. Alternative evidentiary routes remain available to the Crown and could lay a strong foundation towards finding the Applicant guilty.
[30] The Crown’s case has not been materially weakened from its previous status, in my view. The Applicant has failed to establish a material change of circumstances that could affect the Crown’s case. Furthermore, on the tertiary ground in particular, it would shake the confidence of the public if the Applicant’s threats against Alves, a significant contributing factor to the inferior quality of his evidence, could lead at least indirectly to the Applicant’s release. The flaws in the Alves evidence championed by Mr. Carothers are at least to some extent a natural outgrowth of the very threatening offence which his client has been charged with committing. This factor is properly taken into account within the “all the circumstances” clause in the initial language of the tertiary ground found in Section 515(10)(c): R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.) at para. 71.
[31] The informed and reasonable public would agree with the concept that an accused should not profit from his attempt to pervert the course of justice to his own advantage. It is critical to ensure the reputation and propriety of our system of bail. What was said previously in ruling No. 2 at para. 48 still hold true:
The Applicant’s misconduct, seen from the public’s perspective, is a direct attack on the integrity of the process. Witnesses cannot be allowed to be intimidated by an accused for the purpose of ensuring the accused will not be convicted of serious offences against him. It is to protect the integrity of the process and the public’s perception of it that the Applicant cannot be released on bail.
[32] For these reasons, the application for release is dismissed.
D.E HARRIS J.
Released: June 29, 2021
COURT FILE NO.: CR-20-191 & CR-21-836
DATE: 2021 06 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and –
B.R.
Respondent
BAIL RULING
D.E HARRIS J.
Released: June 29, 2021