Court File and Parties

COURT FILE NO.: CR-21-00000343-00BR DATE: 20220110 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – F.N.

Counsel: Maureen Pecknold, for the Crown Danielle Robitaille and Sarah Strban, for F.N.

HEARD: December 21, 2021

Pursuant to section 517(1) of the Criminal Code, an order issued prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given, or the representations made, and the reasons issued, on this application. This prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. This prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.

r. f. goldstein j.

Reasons for Judgment

[1] The Applicant, F.N., and Z.I. began a relationship in 2018. Z.I. had a child, Samarah. By early March 2021 Z.I. ended the relationship with F.N. but she and her two-year-old daughter, Samarah, remained friends with F.N. On the morning of March 7, 2021 Z.I. was babysitting her next-door neighbour, three-year-old Beatrice. Z.I. fed breakfast to the two young girls. Breakfast consisted of a cereal named Golden Morn. The cereal contained crystals of sodium nitrite. Sodium nitrite is a chemical used in food processing, but it can be lethal to humans when ingested, even in small quantities. The Applicant worked at a food processing plant. Sodium nitrite was used at the plant. The girls fell ill. Samarah was hospitalized. Tragically, Beatrice died in hospital. Beatrice and Samarah both had high levels of sodium nitrite in their bodies – in Beatrice’s case, a fatal level.

[2] On June 19, 2021, the Applicant was charged with administering a noxious substance, criminal negligence, and assault causing bodily harm. The Applicant was taken before a Justice of the Peace and was automatically detained pursuant to s. 515(11) of the Criminal Code. 3. On June 29, 2021, the Applicant’s charges were upgraded to first-degree murder and attempted murder.

[3] On December 21, 2021 I heard F.N.’s application for bail. On December 23, 2021 I dismissed the application. I stated:

This is an application for interim release by F.N. He is charged with first degree murder, attempted murder, and other offences. It is alleged that he put a dangerous chemical in a cereal box, knowing that cereal would be fed to a child or children. A two-year old was seriously injured and a three-year old died. The two-year old was the daughter of his former girlfriend. At his place of work, F.N. had access to the particular chemical that was the cause of death, sodium nitrite. The only real contest on the bail application is whether F.N. has met his onus on the tertiary ground. The sureties are excellent, and the plan is reasonable, but the charges are as grave as one can imagine – they allege a planned and deliberate poisoning of a very small child. One cannot let the passions of the moment about a horrendous crime govern a release decision, but this is also a case where the evidence points extremely strongly at F.N. He had access to the chemical; he also had access to the apartment where the poisoning took place. The number of potential suspects at this point is incredibly small – it is limited to him. With great respect, it seems to me that the Crown’s case is formidable. There are, of course, nagging questions – the main one being motive. But in terms of opportunity, F.N. had it in droves. Ultimately, I find it would undermine confidence in the administration of justice if I were to release F.N. I would not foreclose another application based on a material change in circumstances if further and better evidence undermining the Crown’s case were to come to light, but at this point, and after a great deal of anxious consideration, for reasons that I will set out and send to counsel in a more fulsome form, I must dismiss the application.

[4] What follows are my reasons.

Background

[5] The Toronto Police opened an investigation when Samarah fell ill and Beatrice died. Z.I. kept the Golden Morn cereal in a container that had been used for Similac baby formula. The Similac container was kept in the kitchen pantry of Z.I.’s apartment. The police sent samples of the Golden Morn cereal to the Canadian Food Inspection Agency (“CFIA”) for testing. CFIA determined that the Similac container contained crystals of sodium nitrite. No other food containers contained sodium nitrite.

[6] F.N. worked for a food processing company called Griffith Foods. Griffith Foods uses sodium nitrite to process food. F.N. worked as part of the sanitation team, and in February 2021 was promoted to team leader. His duties included cleaning the factory, dealing with spills, and disposing of garbage.

[7] Sodium nitrite is a controlled substance at Griffith Foods. It is kept in a locker with limited access. A log book records employees who enter the container to obtain sodium nitrite. F.N. was not one of the employees with access to the locker. In January or February 2021, however, he was tasked with cleaning up a spill of sodium nitrite. The supervisor who tasked him with cleaning it up described how dangerous the substance is – a tiny amount ingested can kill a human being. The supervisor warned F.N. to wear his personal protective equipment. F.N. cleaned up the spill. The spill was in an open part of the plant where other workers were present. There is no evidence that anyone was present when F.N. disposed of the sodium nitrite or that anyone was present at the disposal site.

[8] F.N. had been in a romantic relationship with Z.I. Z.I. told the police that she broke off the relationship with F.N. in early March 2021 although F.N. continued to visit. She did not tell the police why she stopped seeing F.N., other than she simply did not want a commitment. She said it was “nothing bad” and that F.N. had a good relationship with Samarah, F.N. and Z.I. remained friends. F.N. had been at the apartment the day before the poisoning. F.N. was familiar with Z.I.’s food pantry, as he sometimes cooked at the apartment.

[9] The police seized the container of Similac baby formula that Z.I. used to store the Golden Morn cereal as well as other food containers. The police sent the containers to CFIA for analysis. The Golden Morn cereal contained flakes of sodium nitrite up to 0.7 mm in diameter. The police also seized samples of sodium nitrite from Griffith Food and send them to the CFIA. The CFIA could not confirm that the sodium nitrite in the Golden Morn cereal originated from Griffith Food but did note that the flakes were up to 0.7 mm in diameter.

Issues and Analysis

[10] All persons charged with a criminal offence are entitled to reasonable bail and are not to be denied bail without just cause: s. 11(e) of the Canadian Charter of Rights and Freedoms; R. v. Morales, [1992] 3 S.C.R. 711 at para. 11. In this case, as F.N. is charged with murder, he bears the onus of showing cause that he should be released. A person charged with murder may only be released by a judge of a superior court: s. 522(1) and (2) of the Criminal Code.

[11] The Criminal Code sets out the three grounds for detention. F.N. must show that:

• His detention is not necessary to ensure his attendance in court (the primary ground): Criminal Code, s. 515(10)(a);
• He is not a threat to public safety and there is not a substantial likelihood that he will reoffend (the secondary ground): Criminal Code, s. 515(10)(a); and,
• His detention is not necessary to maintain confidence in the administration of justice (the tertiary ground): Criminal Code, s. 515(10)(c).

[12] Although I will briefly address the primary ground, the real issue in this case is whether F.N. has met his onus on the tertiary ground. The key circumstance on the tertiary ground is the strength of the Crown’s case. The Crown does not contest that F.N. could meet the onus on the secondary ground.

Has F.N. met his onus on the primary ground?

[13] F.N. came to Canada as a refugee claimant from Kenya in 2018. His claim has not been adjudicated yet. He has been steadily employed since not long after arriving here. He put forward two sureties: his sister L.N., and his brother-in-law, C.M. L.N. came to Canada as a student in the early 2000’s. She completed her schooling and works as a registered nurse at Toronto Western Hospital. C.M. also came to Canada as a student. He studied business and finance and is now a chartered public accountant. C.M. and L.N. have a four-year old daughter. C.M. works for a tech company and does much of his work from home. They own their home. They have a large amount of equity in the home. The plan includes GPS monitoring, house arrest, and supervision by both sureties.

[14] As Ms. Pecknold fairly conceded, the sureties are very good. I agree. I was impressed with them both. They are both serious people. They are educated and financially successful. They have built successful lives and started a family in Canada. F.N. has surrendered his travel documents. It is difficult to see how he could obtain new ones. F.N. still has strong ties to Kenya, and it should be noted that Kenya and Canada do not have an extradition treaty. Nonetheless, I am satisfied that the plan is sufficient for him to meet his onus on the primary ground. Ms. Pecknold did not seriously contest otherwise. The real issue is the tertiary ground.

Has F.N. met the onus on the tertiary ground?

[15] Section 515(10)(c) of the Criminal Code states:

515. (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(c) if the detention 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, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[16] See: R. v. St. Cloud, 2015 SCC 27, at paras. 55-65.

[17] Two of the circumstances do not favour release. There is no question that the charges are extremely grave – it is hard to imagine a graver charge than the murder of a three-year old child, and the attempted murder of a two-year old child. Obviously F.N. will be sentenced to life imprisonment with no chance of parole for 25 years if he is convicted of first-degree murder. The circumstances are grievous, although no firearm was used. The parties take issue almost exclusively on the strength of the Crown’s case.

[18] Ms. Robitaille, for F.N., argues that there are problems with the Crown’s case. She articulates the defence position in her factum this way:

The serious nature of F.N.’s charges are attenuated by significant weaknesses in the Crown’s case. The Crown’s case against F.N. is entirely circumstantial in nature. The quantity of evidence is low, and it does not yield an inescapable inference that F.N. is the perpetrator. F.N. therefore remains optimistic about his defence, and is committed to challenging the case against him in court.

[19] Ms. Robitaille points out that F.N. did not have access to the stored sodium nitrite at Griffith Foods; F.N was in full view of other employees as he cleaned up the spill; F.N. could not have known that Z.I. would feed Samarah Golden Morn cereal on that particular day; and at least one other person – a pest control sprayer – had access to the apartment the week before the incident. Moreover, in their search of F.N.’s apartment the police found nothing to tie him to sodium nitrite or the murder. Ms. Robitaille argues forcefully that these weaknesses militate in favour of release.

[20] With respect, I cannot agree with the defence. Although the Crown’s case is not iron-clad, it is certainly quite formidable: R. v. Hoo-Hing, 2020 ONSC 6343, at para. 14. The evidence points very strongly in F.N.’s direction:

• Although F.N. did not have regular access to sodium nitrite at Griffith Foods, he clearly had access on at least one occasion to sodium nitrite that had been spilled. He cleaned up the spill in view of other employees. There is no evidence, however, that anyone saw him actually dispose of the substance. It is obviously an available inference that F.N. obtained sodium nitrite from the spill at Griffith Foods.
• The substance that killed Beatrice and poisoned Samarah was sodium nitrite. There is no evidence that anyone who visited Z.I.’s apartment had access to sodium nitrite. It is obviously an available inference that he used the same sodium nitrite to poison Samarah and Beatrice.
• There is no evidence that F.N. knew that Z.I. was going to feed Samarah (and Beatrice) Golden Morn cereal the day after F.N. had visited. There is, however, compelling evidence F.N. knew that Z.I. would feed Golden Morn cereal to Samarah at some point – he had spent much time at Z.I.’s apartment, knew the routine of the household, and was familiar with the kitchen.
• The Crown, at trial, will be required to show that guilt is the only reasonable inference: R. v. Villaroman, 2016 SCC 33. As a practical matter, however, in the absence of a viable third party suspect, the evidentiary burden would likely shift to F.N. – and a jury would have to be persuaded that it is just an incredible coincidence that Samarah and Beatrice were poisoned with sodium nitrite, and F.N. happened to be the one person in their lives with access to sodium nitrite. Such a coincidence seems highly unlikely.

[21] Ms. Robitaille points to at least four other problems with the Crown’s case that will make it difficult to show that guilt is the only reasonable inference: first, there have been several suicides in Ontario in the last few years where the deceased had taken sodium nitrite; second, the possibility of accident; third, the lack of forensic evidence tying F.N. to the Golden Morn cereal; and fourth, the lack of an obvious motive. I will deal with each of these in turn.

[22] The defence filed an article regarding the intentional ingestion of sodium nitrite. According to the article, there have been 28 deaths in Ontario between 1980 and 2020, including multiple cases in early 2019. The use of sodium nitrite appears to be accelerating. Although the article is not about access to sodium nitrite, counsel relies on the article to make the point that sodium nitrite is obviously more widely available than one might assume. Respectfully, however, I have some difficulty in drawing that inference. The article is a scientific article. It makes the point about the use of sodium nitrite as an increasing method of suicide in Ontario. There is nothing in the article about the mechanism by which each deceased person accessed sodium nitrite. Did all 28 work in food processing? Or have some other means of accessing sodium nitrite? The article is silent. Without more, I do not see how the fact that multiple people in Ontario may have used sodium nitrite to commit suicide could leave a trier of fact in a state of reasonable doubt.

[23] The possibility of accident is intriguing, but ultimately speculative. If F.N. accidentally spilled sodium nitrite into the Golden Morn container, it would have been a fantastic coincidence. No sodium nitrite was found in any other containers in Z.I.’s pantry. As well, no sodium nitrite was found in containers in F.N.’s apartment. There is simply no evidence suggesting innocent transfer.

[24] It is true as well that there is no actual forensic evidence pointing to F.N. Significantly, his fingerprints were not found on the Similac container. On the other hand, Z.I.’s fingerprints were also not found on the Similac container, and of course it is known that Z.I. handled it.

[25] The most significant weakness in the Crown’s case is the lack of an obvious motive. Z.I. told the police that F.N. loves children. She told the police that F.N. had said that he wanted to be Samarah’s stepfather. She was distraught at the thought that F.N. might have committed this crime. F.N. sems to be universally liked and respected. He has never been in trouble and appears to be a law-abiding person. Ms. Pecknold points to the fact that F.N. may have been motivated by revenge: Z.I.’s decision to end their relationship. Many cases involve revenge as a motive, particularly in domestic cases. As well, many cases of domestic murder involve accused persons of previous good character. It is simply unknown, at this point, whether F.N. was motivated by revenge over the end of his relationship. That said, motive is not an element of the offence but it is a potential problem for the Crown.

[26] Overall, I find that the Crown’s case is very strong.

[27] Given the strength of the Crown’s case, as well as the other factors set out in s. 515(10)(c) of the Criminal Code, is detention necessary to maintain confidence in the administration of justice?

[28] The tertiary ground is not limited to exceptional circumstances, especially heinous or inexplicable crimes, or certain types of crimes such as murder. The court must balance all of the circumstances, including the factors set out in s. 515(10)(c): R. v. St-Cloud, 2015 SCC 27 at paras. 54, 66-68. The court must adopt the perspective of a reasonable person. A reasonable person is one who is familiar with the basic tenets of our legal system, such as the rule of law and the presumption of innocence. The person need not be a legal scholar but simply an informed member of the public: St-Cloud, at paras. 79-80.

[29] There is no doubt that two young, defenceless children were poisoned by a chemical, apparently quite deliberately. The murder of young children is sure to inflame the passions of the moment. A judge must carefully tread the ground between thoughtful consideration of the evidence and understandable public outrage. When I balance the factors, I find that a reasonable member of the public would lose confidence in the administration of justice if a man who very likely poisoned two young children were released on bail, notwithstanding that he is likely not an immediate threat to public safety. In my view, a reasonable person who is familiar with concepts such as the presumption of innocence and the right to reasonable bail would still find it hard to accept that F.N. could be released in these circumstances.

[30] Accordingly, the application is dismissed.

R.F. GOLDSTEIN J. Released: January 10, 2022

COURT FILE NO.: CR-21-00000343-00BR DATE: 20220110 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – F.N. REASONS FOR JUDGMENT ON BAIL APPLICATION R.F. GOLDSTEIN J.