[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Davis, 2021 ONSC 730
COURT FILE NO.: CR-21-00000006-00BR
DATE: 20210129
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
MARLON PATRICK DAVIS
Counsel: Tara Cassidy, for the Crown Ari Goldkind, for the accused
HEARD: January 7 and 15, 2021
M. DAMBROT J.:
[1] Marlon Davis is charged with the second degree murder of Paluku Sewe. Counsel for Mr. Davis concedes that Mr. Davis caused Mr. Sewe’s death. This is unsurprising in light of what is revealed by video surveillance, eyewitness evidence of the homicide, and forensic evidence, which I will describe shortly. The accused brings this application for judicial interim release pending his trial.
THE HOMICIDE
[2] The following description of the homicide is derived from the video surveillance, eyewitness evidence, and forensic evidence.
[3] On December 5, 2020, shortly before 4:00 a.m., the accused entered the vestibule of the Bloor Street West branch of the Canadian Imperial Bank of Commerce in Toronto to use an ATM. After doing so, he remained in the vestibule and ate some food he had purchased from a nearby restaurant. While he was eating, Mr. Sewe entered the vestibule to use the ATM. The two men were strangers. Mr. Davis is 30 years old, 6’2’’ in height, and weighs 200 lbs. Mr. Sewe was 47 years old, 5’9’’ in height, and weighed approximately 137 lbs. After a brief conversation, the accused approached Mr. Sewe in an aggressive manner, engaged him verbally, and ultimately lunged towards him and began to physically assault him.
[4] After a brief altercation in the vestibule, the two men moved onto the street. They struggled on the ground for less than three minutes, with the accused on top of Mr. Sewe throughout. While the precise nature of the struggle is not clear from the video evidence, one civilian witness observed the accused punch Mr. Sewe eight to ten times to the head and upper body, stand up, and then kick Mr. Sewe, who was lying on the ground, in the head. Another civilian witness saw Mr. Sewe lying on the ground while the accused was shouting at him. He says that the accused moved a couple steps back and then kicked the deceased in the face. The kick was “super hard” and “full power.” After the kick, Mr. Sewe did not move. The brutal beating inflicted by the accused resulted in Mr. Sewe’s death. He was pronounced dead on December 6, 2020 at 12:21 p.m. He died as a result of blunt force, traumatic head and spinal cord injuries.
[5] After kicking the deceased in the head, the accused entered the vestibule and searched Mr. Sewe’s backpack and belongings. He came back out and told witnesses that he was being robbed, shouted something about “forty thousand dollars”, appeared to check on the victim, rushed back into the vestibule, and then left the scene. He walked west on Bloor Street. As he approached Dufferin Street, a police officer arrived in a scout car and came to a stop in front of the bank. Mr. Davis began walking north on Dufferin. An unknown person pointed Mr. Davis out to the police officer. The officer began running towards Mr. Davis and Mr. Davis began walking south towards the officer. When they met, the officer arrested Mr. Davis, who had blood on his clothing and was in possession of Mr. Sewe’s cell phone.
EARLIER IN THE EVENING
[6] In the early hours of December 5, 2020 – at a time when Ontario was subject to COVID-19 Emergency Orders, Toronto was in lockdown, and residents were advised to stay home except for essential trips – the accused met up with a friend named Kareem Gordon at an illegal “booze-can” operating on Dundas Street in Toronto in an industrial building above an autobody garage. They had coordinated their plan to meet by text message. They remained at the booze-can for 30 to 45 minutes, left in a taxi at about 3:00 a.m., and proceeded to a restaurant on Bloor Street West, arriving at 3:35 a.m. After they purchased some takeout food, Mr. Gordon left in the taxi and Mr. Davis walked to the bank.
[7] In the early hours of December 7, 2020, in response to a noise complaint, police officers attended at the same booze-can. They heard loud music and the voice of a D.J. from the street. Upon entering, they found a smoke-filled premise with a fully-stocked bar, a menu posted for bottle service, and 40 to 50 patrons drinking alcohol, not wearing facial masks or coverings, and not social distancing.
THE ACCUSED
[8] The accused is 30 years old. At the time of the homicide, he was living with his mother, Sylvia Patrick; his sister, Ebony Richards; his partner, Breanna Rushton; and his three children, who are ten, seven and two years of age. The ten-year-old is not the accused’s biological son but has the same mother as the seven-year-old. Mr. Davis considers both boys to be his sons, and his mother has legal custody of them. Mr. Davis’s current partner, Ms. Rushton, is the mother of the youngest child. The accused has been living with his mother on and off for the last three years.
[9] The accused has a high school education. His mother encouraged him to go to college, but, according to her, he was running with a bad crowd at the time and getting into trouble, and he chose not to continue his education.
[10] The accused has a criminal record with 43 entries. He has a long history of committing serious property offences, mostly residential break and enters, and has spent a significant period of time in custody. He began committing break and enters when he was 15 or 16. He committed them by himself.
[11] The accused’s criminal record begins in April 2007, when he was 16, with convictions for 3 counts of robbery and 1 count of theft as a youth. It continues in June of that year with convictions for theft and possession of a weapon, and in November for break and enter and theft, theft, and fail to comply with a disposition. In 2008, while still a youth, Mr. Davis was convicted of obstructing a peace officer.
[12] Mr. Davis’s adult record begins in 2009 with a total of two convictions for break and enter, one conviction for theft, three convictions for possession of property obtained by crime, two convictions for failing to comply with a recognizance, two convictions for failing to comply with a probation order, one conviction for breaching a conditional sentence order, and one conviction for escaping lawful custody. His longest sentence in 2009 was imprisonment for one year.
[13] It is noteworthy that on October 1, 2009, in respect of one count of break and enter and one count of failing to comply with a probation order, Mr. Davis was given an eight-month conditional sentence requiring him to reside with his mother. He breached the order within a month, and it was terminated.
[14] In 2011, Mr. Davis was convicted of three counts of break and enter, one count of obstructing a peace officer, and one count of failing to comply with a probation order. He was sentenced to imprisonment for 14 months and 3 weeks, in addition to 6 months and 1 week of pre-trial custody and 2 years of probation.
[15] In October 2012, Mr. Davis was convicted of 12 counts of break and enter and 4 counts of trafficking in property obtained by crime. He was sentenced to imprisonment for a total of five years and was released in June 2017, after serving almost his entire sentence.
[16] Mr. Davis was arrested for this matter on December 5, 2020. At that time, there was an outstanding arrest warrant for him in relation to two other Criminal Code, R.S.C. 1985, c. C-46, offences alleged to have been committed on July 18, 2020: one count of possession of property obtained by crime, specifically a Kawasaki motorcycle, and one count of failure to stop when operating a conveyance involved in an accident. The warrant was executed and Mr. Davis appeared in court in respect of the outstanding charges on December 6, 2020. He was subsequently charged with driving a motor vehicle while his licence was suspended contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8. In relation to the Criminal Code charges, he was released on a recognizance in the amount of $2,000 with one surety, his mother.
[17] The case against the accused in that matter is very strong. It is alleged that the complainant, who was operating a motor vehicle with three passengers, was stopped at an intersection when a motorcycle sideswiped his vehicle. The complainant exited his vehicle to assist the motorcycle driver. The motorcycle driver became enraged and began hitting the complainant’s vehicle with his bare hands. A witness took photographs of the motorcycle driver, whose face is plainly visible. When the complainant called 911, the motorcycle driver fled on foot. It was discovered that the motorcycle had been stolen on July 7, 2020. Mr. Davis’s blood and fingerprints were on the motorcycle. In addition, the shoes worn by the motorcycle driver were distinctive and match the shoes Mr. Davis was wearing when he was arrested on December 5, 2020.
[18] Mr. Davis met Ms. Rushton in December 2017, six months after his release from prison. They began living together a couple of months after they met. They lived in Ms. Rushton’s sister’s home in London, Ontario for two weeks, and then in hotels in London for a few months. There is independent evidence that they were staying in a hotel in London on April 12, 2018. Mr. Davis acknowledged that it was expensive to live in hotels, but he was able to pay for it with money he earned while on parole. The couple moved next to Toronto, where they lived with friends for three months. Meanwhile, Ms. Patrick was looking after the accused’s two sons. While Mr. Davis and Ms. Rushton were living with these friends, they learned that she was pregnant.
[19] Their child was born on January 5, 2019. After the birth, all three lived with Ms. Patrick for about a month, after which Ms. Rushton moved to a hostel with the baby. Mr. Davis remained with his mother. Ms. Rushton and Mr. Davis broke up in March or April 2019 and stayed separated until June or July 2020. At some point prior to May 2020, Ms. Rushton moved into a basement apartment, where she lived for about six months. After she and Mr. Davis resumed their relationship, he spent most nights with her there. At one point, Ms. Rushton was evicted from the apartment and lived in a shelter. She moved into Ms. Patrick’s home about three or four months ago. Ms. Patrick lived there with her daughter, Mr. Davis, and Mr. Davis’s two older sons. Her house was not big enough for the addition of Ms. Rushton and her son, and they all moved to a larger apartment on November 29, 2020.
[20] After Mr. Davis was released from the penitentiary, he worked in construction for a while, and then did seasonal work for a landscaper. He finished the season in November 2019 and was not rehired for the following season because he did not get along with some of the other workers. He was hired as a sales associate in a small clothing store in February 2020. In June 2020, as a result of the COVID-19 pandemic, he transitioned to an online role with the clothing store, doing sales and advertising from home. He would pick up clothing in bulk from the store, keep it in his mother’s apartment, package it, and ship it out. Curiously, neither his partner, his sister, nor his mother were aware that he was doing this work.
THE SURETIES
Sylvia Patrick
[21] The accused’s mother is 62 years old. She is a Canadian citizen and has no criminal record. She rents a house in Richmond Hill. The father of her children lives in Barrie. She is presently retired but worked as an administrative receptionist for ten years before she retired. She has limited financial means and receives assistance from Ontario Works. She has legal custody of the accused’s two older sons and is clearly a loving and dedicated mother and grandmother.
[22] Ms. Patrick has served as a surety for the accused at least seven times and understands the role. The accused breached his recognizance when she was acting as his surety at least once.
[23] Ms. Patrick has lived with the accused on and off for the past three years.
[24] Ms. Patrick testified that she has never met the mother of her two older grandchildren and does not know much about her. She does not know very much about Ms. Rushton either. She had not seen her often before she moved in with her. She did not know about Ms. Rushton’s education, her work history, or very much about her future plans. She is just getting to know her now. In fact, she did not even know where Mr. Davis had been living or much about what he was doing before he moved in with her.
Ebony Richards
[25] Ms. Richards is the sister of the accused. She is a student at George Brown College and is studying early childhood education, which is her passion. She also works as a daycare teacher. Her employment is not part of her college program; she has to work on her courses in the evening and on weekends and is extraordinarily busy. Ms. Richards leaves for work at 7:00 a.m. and returns home at 6:00 p.m. from Monday to Friday of each week. She hopes to stay on with her present employer after she graduates and plans to open her own daycare one day.
[26] Ms. Richards is almost ten years younger than her brother. She was a child when he went to prison and was only 12 when he was released. She has become close to him since then, but she did not know why he was in prison until she prepared for this bail hearing. Ms. Richards does not know the accused’s friends, did not know where he was living before he moved into their mother’s home, and does not know much about his employment. She has never spoken to the accused about his work aspirations.
[27] Ms. Richards’ role, if I were to release the accused and name her as a surety, would be to ease the burden of the principal sureties. She would step in and supervise the accused in the evenings and on the weekends if the other sureties were out of the home.
Breanna Rushton
[28] Ms. Rushton is 21 years of age. She is the partner of the accused and the mother of his youngest son. She has lived with the accused on and off for the past three years. She currently lives with the mother and sister of the accused. She is a stay-at-home mother and remains in the home almost all of the time.
[29] Ms. Rushton had a difficult upbringing and quite a few interactions with the police when she was younger, but she has no criminal record. She has learned a great deal about what mistakes can do to a person’s life. She attributes the temporary break in her relationship with the accused to her dedicating herself to becoming a mom, rather than to a relationship, and finding herself.
THE POSITION OF THE PARTIES
[30] The accused argues that he should be released on a recognizance in the amount of $5,000 with three sureties: his mother, in the amount of $2,000; his partner, in the amount of $2,000; and his sister, in the amount of $1,000. He would be released on the conditions that he reside at his mother’s residence and remain in that residence at all times unless in the direct and continuous presence of one of his sureties, that he not possess any weapon, that he surrender any travel documents in his possession, and, if necessary, that he be required to wear an ankle monitor.
[31] The Crown argues that the detention of the accused is necessary on the primary, secondary, and tertiary grounds.
ANALYSIS
[32] When an accused charged with murder brings an application for judicial interim release in the Ontario Superior Court of Justice pursuant to s. 522 of the Criminal Code, the judge must order the accused to be detained in custody unless the accused shows cause why his detention is not justified within the meaning of s. 515(10) of the Code.
[33] Section 515(10) provides that detention of an accused is justified only on the grounds that:
(a) it is necessary to ensure his or her attendance in court in order to be dealt with according to law (the primary ground);
(b) it is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice (the secondary ground); or
(c) it is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.
[34] The burden of proof to establish that detention is not necessary on any of these grounds is on the accused on a balance of probabilities.
The primary ground
[35] Consideration of the primary ground requires analysis of several factors, including: the nature of the offence and the severity of the penalty; the strength of the case against the accused; the ties that the accused has to the community; the record of the accused for compliance with court orders on previous occasions; and the behaviour of the accused before apprehension.
[36] Here, the offence of second degree murder alleged against the accused is extremely serious. It carries a mandatory sentence of life imprisonment without eligibility for parole for ten years.
[37] As for the strength of the case, as I have said, the accused concedes that he caused the death of the victim, and the evidence that he did so by means of an unlawful act is overwhelming. The evidence includes videos, eyewitness evidence, and forensic evidence. While the Crown may have difficulty establishing the requisite mental element, it is certainly arguable that the accused had the mens rea for murder. Even if the Crown fails to establish second degree murder, there is a very strong case for manslaughter, which carries a maximum punishment of life imprisonment, and an even stronger case for aggravated assault, which carries a maximum punishment of imprisonment for 14 years.
[38] In addition, the accused has a very serious criminal record, which I have already described in detail, consisting of 43 entries and including a long history of serious property offences, mostly residential break and enters. Most importantly, for primary ground purposes, the accused has one conviction for escaping lawful custody, albeit in 2009, and two convictions for obstructing a police officer, one in 2008 and one in 2011.
[39] I have mentioned that, in October 2012, Mr. Davis was convicted of 12 counts of break and enter and 4 counts of trafficking in property obtained by crime, and was sentenced to imprisonment for a total of 5 years. Mr. Davis testified that the penitentiary was hard. In April 2013, while he was serving his sentence, his second son was born. According to Mr. Davis, he decided that he wanted to “be there for his son”, change his lifestyle, and stay out of trouble. If this change were borne out by the evidence, it would inure to his benefit in respect of the primary ground.
[40] It is certainly true that the accused has become involved in the care of his children and is said to be a good father. But the suggestion that this means he is now more likely to obey court orders and appear in court as required is undermined by his outstanding July 18, 2020 charges. These charges include an allegation that he fled the scene of an accident in which he was driving a stolen motorcycle to avoid judicial sanctions. The evidence of this is extremely strong. This evidence weighs against release on the primary ground.
[41] On the positive side, the accused has strong ties to this community. He has lived in or near Toronto most of his life when not in prison, his family and partner reside here, and, as I have said, he has developed a strong desire to be involved in the care of his children.
[42] In light of all these considerations, I have significant concerns about the risk that the accused will not attend court as required. In my view, he has failed to establish that detention is not necessary to ensure his attendance in court in order to be dealt with according to law. However, my concerns might be allayed by a strong plan of supervision. While I do not reach the conclusion that the present plan is strong enough, I admit that with respect to ensuring the attendance of the accused in court it is a close call. I say this in particular because the accused has never been convicted of failing to appear in court. But my concerns with respect to the secondary ground and the adequacy of the plan for that purpose, which I will discuss next, make further discussion of the plan unnecessary here. I will simply say, for completeness, that I am unconvinced that the accused’s plan will attenuate the risk of his failing to attend court for the same reasons as I find it inadequate with respect to the secondary ground.
The secondary ground
[43] As I have noted, the secondary ground considers whether the detention of the accused is necessary for the protection or safety of the public, having regard to all the circumstances. These include any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice. Most commonly, as here, the focus of the secondary ground is the substantial likelihood of further offending by a person applying for release on bail. In this case, even taking into consideration his proposed plan of release, the circumstances of the alleged offences and the accused’s criminal record, history of breaching court orders, outstanding charges, and other information revealed by the evidence, satisfy me that there is a substantial likelihood that, if released, he will commit a criminal offence. At the very least, the accused has not satisfied me that he will not.
[44] I begin with the circumstances of the offence. The accused is, of course, entitled to the presumption of innocence. A judge conducting a bail hearing cannot decide the result of the trial. However, it would be artificial to gauge an accused’s potential risk to the public without looking at the features of the offence in respect of which bail is being considered. While the index offence is a mere allegation that can appear artificially cogent at a bail hearing, this may be offset by the strength of the Crown's case. This point was made by Trotter J., as he then was, in R. v. R.H., 2006 ONCJ 116, 38 C.R. (6th) 291, at para. 29, a decision that has consistently been followed by judges of this court: see R. v. E.B., 2020 ONSC 4383; R. v. Hifato, 2020 ONSC 4068; and R. v. Tasnim, 2020 ONSC 3462. As a result, in his consideration of the secondary ground in R.H., Trotter J. said:
In assessing the risk of future offending, the brutality of the index offence is a relevant factor: Regina v. Rondeau (1996), 1996 6516 (QC CA), 108 C.C.C. (3d) 474 (Que. C.A.) and Regina v. Braun (1994), 1994 4610 (SK CA), 91 C.C.C. (3d) 237 (Sask. C.A.). While still unproven, it is an important fact that should be considered in the determination of whether the public is at risk.
[45] In this case, the index offence is also brutal; it is uncontested that the accused caused the death of the victim by means of a full-force kick to the head while the victim was lying on the ground. From this I conclude that the Crown has an arguable case for second degree murder,[^1] a very strong case for manslaughter, and an even stronger case for aggravated assault. More importantly, whatever the accused’s state of mind may have been, whatever words may have been exchanged between the accused and the deceased, and whatever the cause of the fight that immediately preceded the alleged offence, the evidence is overwhelming that Mr. Davis is capable of and committed a truly disturbing act of brutality. At the very least, it is undeniable that he can become violently angry very, very quickly. This, in turn, gives rise to a substantial likelihood that he will commit a criminal offence if he is released.
[46] This last conclusion is strengthened by the events surrounding the accused’s motorcycle accident on July 18, 2020. It is not that the accused was driving a stolen motorcycle that concerns me, nor that he took flight. Rather, what concerns me here is that, after he sideswiped a stopped vehicle, when the driver came out to assist him, the accused became enraged and began hitting the vehicle with his bare hands. The accused unquestionably has a predisposition to explosive violence that must be a consideration on the secondary ground.
[47] I turn next to the accused’s criminal antecedents. As I have said, his criminal record has 43 entries and he has spent a significant period of time in custody. He has a long history of committing residential break and enters on his own, beginning when he was 15 or 16 years old and ending with his conviction and 5-year sentence for 12 counts of break and enter and 4 counts of trafficking in property obtained by crime in October 2012. The accused’s criminal record demonstrates that he is a recidivist embedded in a criminal lifestyle relating to serious property offences. Residential break and enters are particularly serious because they involve the invasion of the victims’ home, a place where they are entitled to feel the most secure. These offences create fear and bring the potential for violence should a resident be home when the break and enter takes place. It is true that Mr. Davis has no convictions since his release in June 2017, after serving almost his entire five-year sentence, but the significance of this is diminished by his arrest for possession of property obtained by crime and failure to stop when operating a conveyance involved in an accident on July 18, 2020, bearing in mind, once again, the strength of these allegations.
[48] Counsel for Mr. Davis emphasized the accused’s evidence that his attitude changed after he learned of the birth of his second son while he was in the penitentiary, and the evidence of his mother, sister, and partner that he has, in fact, become very involved in the care of his three children and is devoted to them.
[49] I do not doubt that the accused loves his children and has become an involved father. But that has clearly not stood in the way of his engagement in reckless behaviour, which belies the significance of any changes he has made to his way of life. I refer again to the events of July 18, 2020, and to the fatal blow the accused delivered to the head of the victim in this case. I take note as well of his conduct the night he caused the death of Mr. Sewe, before he arrived at the bank.
[50] As I have said, in the early hours of December 5, 2020, at a time when Ontario was subject to COVID-19 Emergency Orders, Toronto was in lockdown, and Torontonians were advised to stay home except for essential trips, the accused was out and about in midtown Toronto. He met up with a friend at an illegal booze-can at about 2:30 a.m. and remained there for 30 to 45 minutes. It is reasonable to infer that the characteristics of the booze-can that Friday night were not different than what was observed by police two days later: crowded with patrons drinking alcohol who were not wearing facial coverings and were not social distancing. This is far from what one would expect from a caring father about to return to the home where his three young children and his sister, who suffers from asthma, all live. However much Mr. Davis may have changed since 2017, he still has far to go.
[51] For all of these reasons, not only has the accused failed to satisfy me that his detention is not necessary for the protection or safety of the public, on the contrary I am satisfied that it is. I am satisfied that there is a substantial likelihood that he would commit further criminal offences if he was released, subject to my consideration of the effectiveness of his proposed plan of release. As Trotter J. put it in R.H., at para. 30:
[T]he bail judge is not faced with the stark choice between jail on the one hand, and absolute freedom on the other. The question is whether the risk posed by the accused can be managed out of custody, through the options that are available to a justice or judge under Part XVI of the Criminal Code.
[52] Having considered the accused’s proposed plan, I find myself entirely unconvinced that it will attenuate the real risk of further offences. Without doubt, the accused’s mother, sister, and partner love and support him, and are sincere in their belief that he will obey them and stay out of trouble. But their sincerity does not offset the substantial risk he poses. He has never been candid with any of them about his criminal activities. There are many gaps in their knowledge about the life he has been leading. His mother, despite making every effort to encourage prosocial behaviour in her son, has not succeeded. The fault is not hers. Even serving as his surety seven times has not been effective. His sister’s admirable commitment to her education and employment means that her role as surety could only be a very limited one. And his partner, who is making strides in turning her own life around, simply does not have the authority or experience to be effective, even in a secondary role.
[53] What is most telling against the ability of the sureties to control the accused is his history of violating court orders. He has been convicted once of breaching a conditional sentence order, twice of failing to comply with a recognizance, three times of failing to comply with probation orders, and once for escaping lawful custody. It is of significance that at least one of the accused’s fail to comply with a recognizance convictions relates to a bail that his mother was supervising. While the last of these convictions for breaches of court orders was in 2011, his flight on June 18, 2020, though not a breach of a court order, is a strong indication that his attitude has not changed.
[54] I note that the accused also proposes that he be made subject to electronic monitoring. In light of his criminal record and the outstanding charges he faces, I simply do not accept that electronic monitoring will be effective. It does not alleviate my concerns on the secondary ground. While electronic monitoring may be a disincentive to violating a recognizance, it cannot prevent an accused who is determined to do so from breaching conditions or ensure an immediate police response to a violation in progress. It is a tool with limitations and the risk of failure. It provides reactionary supervision rather than preventative supervision. It does not restrict the movements of the person wearing it, cannot prevent an accused from fleeing or from committing another offence, and cannot guarantee police intervention if a breach or offence is in progress: see R. v. Hammoe, 2016 ONSC 1790, at paras. 57-58.
[55] Having regard to the foregoing, I am simply not satisfied that the accused’s sureties possess the authority to impose discipline or control him, even if I impose a condition of virtually total house arrest, which is not what has been proposed. In the end, it is not the commitment of the sureties that is determinative. Any plan, and certainly this plan, depends on the commitment of Mr. Davis. It is a commitment that he has repeatedly failed to live up to in the past and I have no expectation that he will live up to it now. I should say, for completeness, that for these same reasons I conclude that the detention of the accused in custody pending his trial is necessary for the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood that he will, if released from custody, commit a criminal offence.
The tertiary ground
[56] Having regard to my conclusions on the primary and secondary grounds, it is unnecessary to consider the tertiary ground.
COVID-19
[57] The current COVID-19 pandemic was raised by the accused, but not emphasized. The pandemic is a factor that can be taken into account in considering judicial interim release on any of the primary, secondary, or tertiary grounds: see R. v. J.A., 2020 ONCA 660, at paras. 63-65. The weight of that factor depends upon the particular circumstances of each case: see R. v. Jesso, 2020 ONCA 280, at paras. 35-38. Here, the accused has no known or documented health conditions that place him within a vulnerable group. Moreover, his own conduct in contravening the lockdown suggests that COVID-19 is not of much concern to him. In any event, there are presently no, or virtually no, COVID-19 cases in the South Detention Centre, where the accused is detained. Given his track record, the accused is likely no safer out of jail than in: see R. v. Hannaford, 2020 ONSC 3665, at para. 39.
[58] In the circumstances, the COVID-19 pandemic can play no role in this decision.
DISPOSITION
[59] For these reasons, the application is dismissed. The accused will be detained in custody on the primary and secondary grounds pending his trial.
Dambrot J.
RELEASED: January 29 2021
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): R. v. Davis, 2021 ONSC 730
COURT FILE NO.: CR-21-00000006-00BR
DATE: 20210129
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
MARLON PATRICK DAVIS
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: January 29, 2021
[^1]: I take note of the argument of counsel for the accused that the strength of the Crown’s case with respect to the mens rea for second degree murder is diminished by the fact that the investigating officer charged the accused with aggravated assault, not attempted murder. A new charge of second degree murder was added by homicide detectives after the victim died later that day. I am at a loss to see the significance of this fact. First, what matters is what the evidence shows, not what any police officer may have thought. Second, the investigating officer was a divisional officer, not a homicide squad officer, who would have little if any experience in homicide investigations. Third the investigating officer made a decision about what charge to lay in a narrow window of time, with the benefit only of a very limited investigation that did not include a review of the video surveillance or full statements from the witnesses. Fourth, the argument overlooks the difference between the mens rea for second degree murder and the mens rea for attempted murder. The mens rea for second degree murder is: (1) an intention to cause death or (2) an intention to cause bodily harm that the accused knows is likely to cause his death and is reckless whether death ensues or not. In this case, the Crown’s case for the second intention is much stronger than the first. A conviction for attempted murder, however, requires proof of a specific intent to kill; nothing less will suffice. In particular, an intention “to cause bodily harm that the accused knows is likely to cause his death and is reckless whether death ensues or not” will not suffice: R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225, 10 C.C.C. (3d) 385. As a result, initially charging the accused with aggravated assault and not attempted murder based on a limited investigation before the victim died may be seen as quite logical. In no way does it diminish the strength of the Crown’s case for second degree murder.