COURT FILE NO.: CR-21-00000022-00BR
DATE: 20210203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ASHLEY OWEN
Applicant
Sylvana Capogreco and Ben Snow, Counsel for the Crown
Robert Yasskin, Counsel for the Applicant
HEARD: January 19, 2021
M.A. CODE J.
REASONS FOR JUDGeMENT
A. OVERVIEW
[1] The Applicant Ashley Owen is presently charged in a one count Information with being an accessory after the fact to murder, contrary to ss. 240 and 23 of the Criminal Code. This is a s. 469 offence, within the exclusive jurisdiction of the Superior Court. As a result, the Applicant brought an originating bail application in this Court pursuant to s. 522. She bears the onus of showing cause why her detention is not justified.
[2] The murder in question took place on March 13, 2020. The alleged principal in the murder, one Steadley Kerr, was arrested just over two weeks later on March 30, 2020. He was charged with the first degree murder of Theepa Seevaratnam and the attempt murder of Leelavathi Seevaratnam. The Applicant Owen is alleged to have assisted Kerr in various ways during the two weeks that he was at large. She is the mother of Kerr’s child and appears to have been involved in a sexual relationship with him at the relevant time. She was arrested on June 11, 2020 and has been in custody for the past seven and a half months.
[3] The underlying murder offence bears all the hallmarks of a targeted contract killing. The gunman attended at the Seevaratnam home, posing as a delivery man with a package for Theepa. When Theepa came to the door she was shot six times and killed. Her mother Leelavathi, who had answered the door, was also shot twice but she recovered from her injuries. The Crown alleges that the murder was arranged by Theepa’s husband, one Vijendran Balasubramaniam. There is evidence that he had a motive to kill his wife due to a past history indicating some animus and due to his alleged involvement in an inappropriate relationship with two other family members.
[4] The final arrests in the case were made on July 7, 2020 when Balasubramaniam was charged with conspiracy to commit murder and first degree murder. An accomplice, one Gary Samuel, is alleged to have driven the gunman in a rental car both to and from the scene of the shooting. He was also arrested on July 7, 2020 and was charged with murder and conspiracy to commit murder.
[5] A judicial pre-trial involving all four accused was held on September 30, 2020. They will all be joined in a single Information. On November 5, 2020 the parties scheduled what will be a 20 day preliminary hearing in the Ontario Court of Justice in April and May 2021. Disclosure was substantially completed in November 2020. If the preliminary inquiry concludes as scheduled, on May 21, 2021, there will have been less than 12 months total delay for three of the four accused, including the Applicant. The parties agree that there has been no unreasonable delay to date.
[6] A one day bail hearing was held before me on January 19, 2021. The parties consented to the hearing being held over Zoom, due to the current restrictions on appearances at the Court House during the pandemic. At the end of the hearing I reserved judgement. These are my Reasons.
B. FACTS
(i) Facts relating to the offence
[7] Extensive analysis of video surveillance evidence led the police to conclude that a black Chevy Cruze had been used to drive the gunman to the crime scene at 9:40 a.m. on March 13, 2020. The car had been rented that same morning at 9:05 a.m. from a car rental agency on Kingston Road in Scarborough. The car was rented by Gary Samuel in his own name. Upon his subsequent arrest, Samuel gave a statement to the police admitting that he had rented the car and had driven Kerr directly to the scene of the murder.
[8] Following the murder, there is evidence that Samuel immediately drove Kerr to the Applicant Owen’s residence located at unit 910, 3400 Eglinton Avenue East in Scarborough. The evidence in this regard includes Samuel’s statement to the police and video surveillance evidence. That video evidence shows Kerr arriving outside the building at 9:56 a.m., apparently changing his clothes inside Owen’s residence while Samuel waited outside in the Chevy Cruze, and then leaving the residence at 10:06 a.m. and returning to the Chevy Cruze. The Applicant Owen resided in unit 910 at the time with her mother, her sister and her four children (including an infant who Kerr had fathered).
[9] Samuel then appears to have driven Kerr in the Chevy Cruze to a nearby shopping plaza located a few blocks to the west of the Applicant Owen’s residence. Again, this inference is supported by Samuel’s statement to the police and by video surveillance evidence, showing the Chevy Cruze arriving at the plaza and remaining there between 10:09 a.m. and 10:15 a.m. Kerr exited the car and walked towards TSV Convenience, which is a store located in the plaza where Balasubramaniam worked. Balasubramaniam had not been at his home at 9:40 a.m. that morning when his wife was murdered. Telephone records and text messages, discussed below, support the inference that Kerr was looking for Balasubramaniam and that Owen was assisting him.
[10] When Balasubramaniam was later arrested, he gave a statement to the police admitting that the Applicant Owen was a regular customer at his convenience store and that she would sometimes buy items on credit. The Applicant’s mother gave similar evidence at the bail hearing before me, acknowledging that her family shopped at “Vijay’s” nearby convenience store and that the Applicant Owen “ran a tab” at the store. The Applicant’s mother also gave a statement to the police acknowledging that Kerr had attended at the Owen family apartment at a time proximate to the March 13, 2020 murder. She testified before me at the bail hearing that Kerr would not drop by unless the Applicant was at home and that the Applicant would let Kerr into the apartment. It is unclear whether Kerr had any connection to Balasubramaniam other than through the Applicant Owen, as will be discussed below.
[11] With the assistance of Production Orders, the police obtained telephone records relating to the cell phones used by the four accused. They also obtained screen shots of a small number of text messages stored in the Applicant’s cell phone (most of the call logs and text messages between Owen and either Kerr or Balasubramaniam had been deleted from Owen’s phone, as well as their contact profiles). This body of telephone and text message evidence, in its relevant context, can be summarized as follows:
• on February 13, 2020, exactly one month before the murder, Balasubramaniam and the Applicant Owen exchanged four text messages and had one telephone conversation. This was their only phone contact in the four and a half month period prior to the murder (the time period covered by the Production Order);
• two days later, on February 15, 2020, Balasubramaniam had his first phone contact with Kerr in the same four and a half month period prior to the murder. They exchanged four phone calls and five text messages that day;
• in the following four week period leading up to the murder, there was substantial telephone contact between Kerr and Balasubramaniam and between Owen and Kerr;
• on March 11 and 12, 2020, which were the two days immediately before the murder, two of the preserved text messages from Kerr to the Applicant Owen state the following: “I doing ting for vj tomorrow coming there right after”; and “see u tomorrow or Saturday”;
• on the evening of March 12, 2020, the now deceased Theepa Seevaratnam began her last shift at work at about 7:00 p.m. At this point, telephone contact began between Balasubramaniam and Kerr (14 calls and texts), between Owen and Kerr (three calls and texts), and between Samuel and Kerr (10 calls and texts). This telephone contact continued until 2:16 a.m. in the early morning hours of March 13, 2020. Cell tower data indicates that Kerr and Samuel’s phones were in the vicinity of Theepa’s home at this time shortly before the murder;
• as summarized above, the murder occurred at about 9:40 a.m. on March 13, 2020 and the Chevy Cruze arrived outside the Applicant Owen’s building at about 9:56 a.m. At 9:52 a.m., Kerr called the Applicant Owen, shortly before he arrived at her residence. As summarized above, Kerr left Owen’s residence at about 10:06 a.m. (after changing his clothes) and the Chevy Cruze arrived at the plaza where Balasubramaniam’s store was located at about 10:09 a.m. Shortly after arriving at the plaza and walking towards Balasubramaniam’s store, at 10:12 a.m., Kerr again called Owen. She immediately called Balasubramaniam, also at 10:12 a.m., and then called Kerr at 10:13 a.m. The Chevy Cruze left the shopping plaza at about 10:15 a.m.;
• throughout the rest of the day of the murder (March 13, 2020), from 11:24 a.m. to 6:36 p.m., the Applicant Owen and Kerr exchanged 15 further calls and texts, the Applicant Owen and Balasubramaniam exchanged two texts, and Kerr and Balasubramaniam exchanged two calls and texts. Three of the texts between Owen and Kerr on March 13, 2020, after the Chevy Cruze had left the shopping plaza, were preserved in screen shots seized from Owen’s cell phone. They are as follows: Kerr asks, “Did call u yet”, Owen replies, “No he didn’t”, and Kerr states, “Call him again ask how long. Please” (at 11:24 am and 11:26 am); Kerr tells Owen “Yo if anything happen to me u have page vj” and Owen replies, “For sure” (at 3:59 p.m. and 4:04 p.m.); and finally, the Applicant Owen’s two texts to Balasubramaniam (at 11:52 a.m. and 2:24 p.m.) were also preserved stating, “Please let me know when your at the store had to c” and “Please get back to me asap”;
• the Chevy Cruze was returned to the car rental agency on the evening of March 13, 2020 at about 7:44 p.m.;
• the next day, March 14, 2020, there was once again substantial telephone contact between Kerr and the Applicant Owen, between Balasubramaniam and the Applicant Owen, and between Kerr and Balasubramaniam. In addition, cell tower data places the Applicant Owen’s phone in the vicinity of Balasubramaniam’s store in the morning and surveillance video places her together with Kerr at her residence in the evening for about 15 minutes, while Samuel waited outside in his truck. After this brief visit with the Applicant, Kerr left with Samuel;
• the next day, March 15, 2020, surveillance video again shows Kerr attending at the Applicant Owen’s residence for a short visit lasting about 15 minutes. Police analysis contrasting Kerr’s manner of walking, prior to attending at Owen’s apartment and after leaving her apartment, infers that he may have retrieved a gun from the apartment. Similar analysis contrasting Kerr’s manner of walking on March 13, 2020, prior to his arrival at the apartment and when leaving the apartment (after changing his clothes), infers that he may have left a gun at the apartment shortly after the murder. The murder weapon has never been recovered. The Crown’s theory, which will depend on the cogency of this analysis of Kerr’s manner of walking on both March 13 and 15, 2020, is that Owen kept custody of the murder weapon for this two day period;
• on March 19, 2020, the police executed a search warrant at the Applicant Owen’s residence. They seized clothing that resembles the clothing worn by Kerr at the time of the murder. The police spoke to the Applicant and she stated (falsely) that Kerr had not attended at the apartment on March 13, 2020. While the search warrant was being executed, Owen waited at a neighbour’s apartment and a phone call was placed from that neighbour’s phone to Kerr. A substantial number of calls then ensued between Kerr and Samuel;
• on March 23, 2020, it appears that Samuel went into hiding, shortly after being notified by the car rental agency that the Chevy Cruze had been seized by the police. He registered in a Scarborough hotel under a false name. On March 27, 2020, the Applicant Owen received a text message from Kerr apparently telling her the address of the hotel where Samuel was now staying;
• also on March 27, 2020, Balasubramaniam sent two text messages to the Applicant Owen. The first text asked, “Did your mom and jassy knows” (Owen’s sister, who resides with her and her mother, is named Jessica). The second text stated, “Thank you for your support and prayer for my family”;
• on March 30, 2020, the police obtained an arrest warrant for Kerr. They attended at the Applicant Owen’s residence and spoke to her. She told them (falsely), that she had not seen Kerr and had no recent contact with him and that he did not have a phone;
• Kerr was arrested on March 30, 2020. While he was in custody and prohibited by Court Order from communicating with the Applicant Owen, there is evidence inferring that she had telephone contact with him and may also have facilitated three way contact with Samuel on May 31, 2020;
• Between May 31, 2020 and her arrest on June 11, 2020, the Applicant Owen began telephone contact with Samuel.
(ii) Facts relating to the Applicant Owen and the plan of release
[12] The Applicant Owen is 36 years old. She has lived her entire life in Ontario, always residing with her mother except for one year when she lived independently. As noted above, she was living with her mother, her sister Jessica, and her four children in an apartment in Scarborough at the time of her arrest. It is a small two bedroom apartment. The Applicant Owen slept in the living room/dining room area with her children. The plan of release is that she would return to this residence. She has sole custody of her children who are ages fourteen, ten, eight, and almost two. Her mother Lorella occupies one bedroom and her sister Jessica occupies the other bedroom.
[13] Owen completed high school in 2007 at a time when she was in custody. She had been charged with obstruct police and being an accessory after the fact to a murder allegedly committed by one Troy Johnson-Lee. He was a close friend of the Applicant Owen and was the uncle of her first child. She twice gave an admittedly false statement to the police, providing Johnson-Lee with an alibi. She had no criminal record at the time and was released on bail, on “house arrest” terms, with her mother as the surety. Shortly after her release she was arrested outside the home with her sister and was charged with a drug trafficking offence. At this point, she was denied bail “because essentially she was trafficking drugs under the nose of her surety”, as her counsel eventually put it at the time of her subsequent guilty plea. She remained in custody awaiting trial on these two sets of charges for a year. She pleaded guilty in 2007 to trafficking and received a sentence that credited her with three months of pre-trial custody. She continued to remain in custody before pleading guilty in 2008 to obstruct police. She received credit for nine additional months of pre-trial custody and was placed on probation. At her sentencing hearing before West J. she admitted to lying to the police during the murder investigation “because I was trying to protect a friend” (Johnson-Lee, who was eventually convicted of murder). Her counsel advised West J. that “this has been a harsh lesson. She’s lost a year of her life. More importantly though, she’s lost a year of her daughter’s life. She missed her daughter’s first steps, her first words, and has missed a very important part of her child’s development.” A similar form of “house arrest” bail with her mother as the residential surety, is proposed in relation to the present charges.
[14] The Applicant Owen worked most recently as a packing supervisor at Cameron Advertising in Scarborough for seven years. Her fourth and most recent child was born on May 14, 2019. As noted above, Kerr is the father of this child. Owen was on maternity leave from her job at the time of her arrest on the present charges. She believes the job at Cameron Advertising would still be available to her, if she was released on bail. Her apparent boyfriend Kerr has a relatively serious criminal record, including convictions for assault, carrying a concealed weapon, possession of a firearm, uttering threats, trafficking, and possession of a weapon dangerous.
[15] Owen gave evidence at the bail hearing before me. She testified that being in custody since her arrest and being away from her four children, especially her young infant, has taken a toll on her. She explained that she was 21 years old at the time of her prior offences in 2007 and that she only had one child at the time. She testified that she has matured and no longer gets into trouble. She now realizes the severity and consequences of what she did in 2007 and would not put herself in jeopardy. She recalled few of the details or circumstances surrounding the past offences and her past release on bail in 2007.
[16] Owen’s mother, Lorella Owen, also testified at the bail hearing before me (I will refer to her as Lorella). She is 61 years old and has worked steadily at her job as an administrative assistant for 23 years, earning about $65,000 a year. She is presently working from home during the pandemic, although she may have to return to working from her place of employment once the pandemic ends. She has a small amount of savings in the bank and it is proposed that she would be a surety in the amount of $10,000. Lorella acknowledged that she was an unsuccessful surety for her daughter in 2007 but testified that she has changed. She explained that she was naïve at the time and has now “learned her lesson” and would call the police if she suspected a breach of bail. Lorella also believes that her daughter, as a result of now working and having four children, has a more balanced life than she did in 2007. Lorella knew about her daughter’s relationship with Kerr because he would visit their apartment, usually in the evenings. However, Lorella did not know about Kerr’s criminal record. She does not always agree with her daughter’s relationships and can only advise her. She otherwise tries to keep out of her daughter’s relationships. She would usually stay in her own bedroom when Kerr visited their apartment, and she knew little about him. She did not ask about his criminal record and Owen did not tell her.
[17] The second proposed surety is Marvin Findlayter. He is a cousin of the Applicant Owen, related through her father (who is now deceased). Mr. Findlayter is 39 years old, has no criminal record, and has led a successful pro-social life. He had moved to the United States, in order to obtain a computer engineering degree, and he returned to Toronto in 2008. He worked as an information technology consultant and now owns and operates his own company, The Findlayter Group. He works from home, holding meetings by telephone or Skype. He earns an income of about $100,000 a year and owns assets worth about $1.5 million (two condominiums, a house, a car, his business, and some savings). It is proposed that he would be a surety in the amount of $100,000. The condominium where he lives alone is too small for the Applicant Owen to live with him. However, Mr. Findlayter would be able to drive to Lorella’s apartment and supervise the Applicant Owen, if Lorella had to leave the residence (for example, if she returns to working from her office after the pandemic ends). Mr. Findlayter believes that he could work from Lorella’s small apartment, even though he has never visited the apartment.
[18] The nature and extent of Mr. Findlayter’s relationship with the Applicant Owen and with her mother Lorella was the subject of evidence at the bail hearing. The Applicant Owen testified that her father died 13 years ago, that there was period of estrangement where the family was not in regular contact with Mr. Findlayter, but that she now spoke with him on the telephone. Lorella testified that she had not seen Mr. Findlayter for awhile. She acknowledged that it had been a few years since she last saw him and that it was her daughters who spoke to him. She implied that there had been some problem in the past between herself and Mr. Findlayter but she testified that she trusted him and could work with him as joint sureties supervising the Applicant Owen. Mr. Findlayter testified that he had visited with the Owen family on special occasions, when they were children, but that there was a “breakdown” in the relationship due to the “pain” associated with the death of his uncle (Lorella’s husband). When he returned to Toronto after attending university in the United States, Mr. Findlayter acknowledged that he was not close to the Owen family. He saw the Applicant Owen a few times, she once came to dinner at his condominium, they once went out to a night club, and he met her boyfriend and father of her last child (Kerr) on New Years Eve in 2018. He knew nothing about Kerr or his criminal record, was not aware that Kerr and the Applicant Owen had both been arrested, and was not aware that the Owen apartment had been searched. He only learned of these developments when Jessica Owen called him in either June or July of 2020. He then began having weekly telephone calls with the Applicant Owen and they began discussing a plan for her release from jail.
[19] Mr. Findlayter testified that he believed the Applicant Owen’s arrest on the present charges, and the plan for her release, would bring him closer to Lorella. He believed that he could work with Lorella to jointly supervise the Applicant Owen and ensure compliance with various bail conditions. The plan for release would include no contact with co-accused, no cell phones, electronic monitoring from Recovery Science Corporation, strict perimeter boundaries (if the “house arrest” term allowed exceptions, such as for work), or no exceptions at all to “house arrest” (other than medical emergencies, court appearances, and meetings with counsel), depending on the Court’s view of the release terms.
C. ANALYSIS
[20] The parties are agreed that the Applicant’s onus in relation to the primary ground for detention can be met. The only issues in dispute are the secondary and tertiary grounds. I agree with this concession.
[21] Turning to the secondary grounds, the first concern is that the Applicant Owen has a history of obstructing justice. She twice lied to the police in 2006 and 2007 in the course of a murder investigation, and maintained that lie (providing a false alibi for the principal in the murder) for a full year while she remained in custody and while the uncle of her first child awaited trial for murder. See: R. v. Johnson-Lee [2009] O.J. No. 4860 at paras. 11, 41 and 53, where Glass J. sets out the facts relating to the murder and the attempt by Owen and Johnson-Lee to fabricate the alibi.
[22] The second concern is that there is overwhelming evidence that the Applicant repeated this conduct on March 19 and 30, 2020 in the present case, twice lying to the police to protect the father of her fourth child in the course of another murder investigation. Her testimony before me at the bail hearing, to the effect that she had learned her lesson from the experience of being charged, detained, convicted and sentenced in 2007 and 2008, was obviously insincere. Making false statements in the course of a police investigation, in order to protect another person (or oneself in some circumstances) constitutes obstruction of justice. See: R. v. Spezzano (1977), 1977 CanLII 1371 (ON CA), 34 C.C.C. (2d) 87 (Ont. C.A.); R. v. Wijesinha (1995), 1995 CanLII 67 (SCC), 100 C.C.C. (3d) 410 (S.C.C.).
[23] The third concern is that there are vulnerable witnesses in the present case who are in fear. The deceased Theepa Seevaratnam appears to have been the victim of a targeted assassination, brought about by internal family motives. It is understandable that the deceased’s mother (who was also a victim) and her aunt (who was present) would both fear for their lives in the circumstances of the present case. They are both important eye witnesses who will have to testify at trial about the murder and about the state of Theepa’s marriage. The strength of the Crown’s case, in relation to the Applicant Owen’s alleged obstruction of this very serious murder investigation, will be discussed below in relation to the tertiary grounds. However, it also raises real concerns in relation to the secondary grounds. The Applicant Owen’s willingness to obstruct the course of justice in relation to an apparent contract killing, out of loyalty to Kerr, gives rise to risks that she may interfere with the administration of justice, on his behalf, if released on bail. There was no evidence at the bail hearing before me as to the present state of her loyalties to Kerr, and whether those loyalties have changed since the time of the index offence. At that time, her telephone contact, her text messages, and her meetings with Kerr all tended to infer a close dependent relationship. In these circumstances, there is a need to protect the two vulnerable eye witnesses from the risk of interference by an accused with the Applicant Owen’s history of obstructing justice, both in 2007 and in 2020.
[24] The fourth concern in relation to the secondary grounds is that the Applicant Owen relies heavily on the plan of release in order to meet her onus. That plan of release has a number of weaknesses. The Applicant’s mother Lorella Owen is the proposed residential surety. She clearly failed to supervise her daughter in 2007 on the one prior occasion when she acted as the Applicant’s surety. More importantly, she is a Crown witness in the present case. It is generally unwise to allow an accused to reside on bail with a Crown witness because of the risk of interference or influence in relation to that witness. In addition, Lorella Owen appears to know little about Kerr or about the Applicant Owen’s relationship with Kerr. A great deal of the actus reus of the index offence occurred in the apartment where the Applicant Owen and her mother resided, at times when the mother was apparently at home, and it is proposed that the Applicant will now return to that same residence. Finally, there is some history of difficulties in the relationship between Lorella Owen and the other surety, Marvin Findlayter, and they will be required to work together effectively, supervising the Applicant Owen. In addition, Mr. Findlayter does not know the Applicant Owen well and does not appear to know Kerr at all. For all these reasons, I have real concerns about the adequacy of the plan of release.
[25] I should note that the plan of release includes ankle bracelet monitoring. This is a useful tool in relation to certain primary ground and secondary ground concerns, especially if the concern is to keep the accused within her residence or within certain boundaries. However, it is of minimal assistance where the secondary ground concern is potential interference with the administration of justice, as in the present case. See: R. v. Gordon, 2020 ONSC 4071 at para. 52.
[26] In light of the above four circumstances, considered in their totality, the Applicant has not met her onus on the secondary grounds.
[27] Turning to the tertiary grounds, in R. v. Gordon, supra at paras. 34-53, I recently set out my understanding of the impact that the Supreme Court’s decision in St. Cloud has had on the proper interpretation and application of the tertiary grounds. I will not repeat that analysis, which relied heavily on the Reasons of Trotter J., as he then was, in R. v. Dang, 2015 ONSC 4254. I simply adopt it for purposes of the present case. See: R. v. St. Cloud (2015), 2015 SCC 27, 321 C.C.C. 307 (3d) 307 (S.C.C.).
[28] The four statutory factors set out in s. 515 (10)(c) all argue in favour of detention on the tertiary grounds. In my view, the Crown’s case has “apparent strength”. There is overwhelming evidence of the s. 23 actus reus of the index offence, namely, providing assistance to Kerr immediately after the murder and during the following weeks. The Applicant Owen undoubtedly allowed Kerr to change his clothes at her apartment, kept the clothes that he wore during the murder, assisted him in his efforts to find and communicate with Balasubramaniam, and lied and obstructed the police efforts to find Kerr. In addition, the Applicant Owen may have secreted the murder weapon and tipped off Kerr about the police search of her residence, although I cannot properly evaluate the strength of these latter two acts of alleged assistance on the limited record before me. The only live issue in the case, in my view, is whether the Applicant Owen had knowledge that Kerr had committed a murder. It is conceded that Owen’s repeated lies to the police infer some knowledge of Kerr’s jeopardy. It is also conceded that Owen appears to be the link to Balasubramaniam as she frequented his store, was allowed to “run a tab”, and appears to have initiated the telephone contact between Kerr and Balasubramaniam in February 2020. In addition, Kerr used Owen in his efforts to contact Balasubramaniam. In particular, Kerr stated: “if anything happen to me” she was to “page vj”. In this regard, Owen’s role as a messenger or intermediary between Kerr and Balasubramaniam implies some degree of knowledge concerning the reasons for the Kerr-Balasubramaniam relationship. Finally, the sheer volume of Owen’s telephone contact with Kerr and Balasubramaniam at all critical stages, both before and after the murder, implies some degree of involvement. In all the above circumstances, the Crown has reasonably strong circumstantial evidence inferring Owen’s knowledge of the murder. Indeed, the Crown advises that they may seek Owen’s committal at the preliminary inquiry on the murder conspiracy count, pursuant to s. 548(1)(a). That preliminary inquiry, where the evidence will be more fully developed, is only two months away.
[29] The offence of accessory after the fact to murder carries a maximum sentence of life imprisonment, pursuant to s. 240. This particular murder was of the most serious kind as it appears to have been a targeted contract killing of a vulnerable woman who was inside her own home. If the Applicant Owen is convicted of assisting the perpetrator of this kind of murder she will undoubtedly receive a lengthy custodial sentence. The circumstances of the offence summarized above, suggesting Owen’s involvement both before and after the murder, are particularly disturbing.
[30] In addition to the four statutory factors summarized above, the Applicant Owen’s past criminal record for the same kind of conduct, the weaknesses in the plan of release, and the vulnerability and fears of the surviving mother and aunt (who must both testify at trial) are additional factors that are relevant to the tertiary grounds.
[31] In all the above circumstances, I am satisfied that detention on the tertiary grounds is necessary “to maintain confidence in the administration of justice.” As Forestell J. explained in R. v. Ali, July 4, 2018, a case with some similarities to the present case and where detention was held to be justified on the tertiary grounds:
As I have already said, while the Crown may have some challenges in proving the mens rea for murder with respect to the Applicant, the evidence that he assisted the co-accused after the event is strong. This included providing a place for the co-accused to hide himself and the vehicle. The conduct of the Applicant, if proven, does not amount to an impulsive and momentary lapse in judgment but points to willing and ongoing assistance of the co-accused in evading detection for the shooting. The circumstances suggest an ongoing involvement with criminal activity.
While the conduct of the Applicant may, depending on the ultimate findings at trial be found to be less culpable than that of his co-accused, the conduct, if proven is, nevertheless, extremely serious. The proliferation of guns in the Toronto area and the dramatic increase in gun violence is a matter of grave public concern. The responsibility for gun violence rests not only with the individuals who pull the triggers but with the network of criminal associates who facilitate the gun offences. Even if the Applicant is found to have committed lesser offences than two murders, he is likely to face a very lengthy term of imprisonment.
Also see: R. v. Ali, 2017 ONSC 4731 per Quigley J.
D. CONCLUSION
[32] For all the above reasons, the Application for bail pursuant to s. 522 is denied on both the secondary and tertiary grounds.
M.A. Code J.
Released: February 3, 2021
COURT FILE NO.: CR-21-00000022-00BR
DATE: 20210203
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ASHLEY OWEN
REASONS FOR JUDGeMENT
M.A. Code J.
Released: February 3, 2021