R. v. Alleyne, 2022 ONSC 3131

COURT FILE NO.: CR-22-0000131-00BR

DATE: 20220525

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Shaquan alleyne

Applicant

Meghan Scott, for the Respondent, Her Majesty The Queen

Morrie Luft, for the Applicant, Shaquan Alleyne

HEARD: May 20, 2022

RESTRICTION ON PUBLICATION: Information contained herein is subject to a publication ban pursuant to s. 517 of the Criminal Code. The ban does not apply to publication of these reasons in full in law reports nor to a discussion of the underlying legal principles in other publications without reference to the particulars of the charges or personal details in relation to an accused person.

low J. (Orally)

1This bail review was heard on May, 20, 2022. I granted interim release on terms. Due to the lateness in the day and the departure of the reporter, it was not possible to put reasons on the record. The following are the reasons.

2The plan of release proposed to the court hearing this in the first instance was the same as that proposed here. The plan is a strict regime of house arrest with 24 hour supervision by at least one of the two residential sureties and electronic ankle monitoring. A $30,000 pledge is to be made in support of the release. The court of first instance denied release. To the extent that a reason was given for denial of bail, it was the following:

Number one, the accused was already on bail for several different offences committed at several different times, allegedly. He was also on a condition of bail which required him to live with his mother at one address, but it appears that he was living at this Dwiggin address also, which puts him flagrantly in breach of the bail condition that requires him to live with his mother. In addition, he was on a condition which required him not to be in possession of any firearms. Assuming that there is some validity to the charges, and the police appear to have a very strong case here, he is found flagrantly in possession of a loaded firearm hidden under his mattress. The accused then appears to have gone with two co-accused on a crime spree, starting a few days after his release on the last set of charges, thereby demonstrating, to my mind, indifferences to his responsibilities on bail. In my view, the public would be offended if this man were to be released. He will be detained in custody on all charges, the Crown's s. 524 application will be allowed, and he will be detained on everything.

3I am of the view that whether or not the public would be offended if the accused were released is not the appropriate test under the legislation. The crown acknowledges that comprehensible reasons were not given and accordingly, the hearing proceeded as de novo.

4This hearing applies to the offences with which the accused was initially charged and to the three offences with which he was charged subsequent to his arrest, all of which arise from the same series of events.

5The accused was charged on November 11, 2021 with a series of break and enters and thefts from residential properties. He is alleged to have committed the offences together with three other individuals. The crown described the offences in submissions as a series of home invasions. In my view, such nomenclature is misplaced (see R. v. Campeau (2009), 235 C.C.C. (3d) 258). The perpetrators of the break-ins appeared to have been careful to avoid personal contact with individuals.

6Following the arrest, a search under warrant was conducted of room said to be where the accused was staying at 3410 Dwiggin Avenue, Mississauga, house owned by his grandmother and occupied by three other males. A quantity of drugs was located in the room as well as a number of the items stolen from various homeowners. A handgun was located under the mattress.

7At the time of arrest, the accused was facing three sets of charges from earlier in the year: a sexual assault on K.F., the mother of his four children, sexual assault, mischief, assault and utter threats against K.R., and a failure to comply and criminal harassment of K.F. As a result of the first set of charges, the accused was released on an undertaking not to contact K.F. It is alleged that contrary to that undertaking he contacted her numerous times and criminally harassed her, the result of which was the third set of charges, further to which the accused was released on terms that he reside with his mother at 10 Knightsbridge Road in Brampton. The accused’s mother post bail of $1000.

8The accused was born in Canada in 1995. He has a criminal record from 2015 for robbery and theft under. Pursuant to that conviction the accused remained bound by a weapons prohibition under s. 109 of the criminal code at the time of his arrest on the charges now before the court. He has four children, aged 4, 6 and twins of 4 months who were born following his arrest and whom he has not yet seen. Prior to his arrest he worked part time as general labour for a construction company.

9The sureties proposed are his aunt, Jacqueline Alleyne, and her husband, Tulsie Ram. Mr. Ram and Ms. Alleyne have two children, a son of 14 and a daughter of 18. They own their home with a small mortgage.

10The plan of release is the strictest form of house arrest. Ms. Alleyne does not work outside the home and is available to supervise the accused virtually at all times. The plan is that if she needs to leave the house, she will take the accused with her, informing the electronic monitoring company of the plan in advance. Mr. Ram works as a shipper receiver. He works long hours- 5 a.m. to 5 p.m. He will commit to supervising the accused as well. The sureties will pledge $30,000 in support of Shaquan’s release.

11Despite the existence of their criminal records (which are minor and dated), I am satisfied that the sureties are suitable individuals. They appear to me to have an open eyed appreciation of the responsibility they are undertaking and the monetary risk they are taking. While they have a familial affection for the accused, they are sufficiently removed, not being parents, not to be susceptible to maternal indulgence.

12While electronical ankle monitoring is not a panacea, it is nevertheless a disincentive to violating territorial restraints on the accused while on release. The accused will be aware that doing so will result in his re-arrest and likely forfeiture of the monetary pledge.

13As participants in the justice system are aware, there is house arrest and there is house arrest. There are regimes that permit the accused to go to work; there are regimes that contemplate the accused being in the house alone and unsupervised. The plan before me is, in my view, as close to house arrest as the term in its ordinary meaning conveys. Ms Alleyne normally stays home, and accordingly, there are expected to be few occasions for her, and therefore the accused to be out of the house. There are to be no periods with no supervision.

14There is no suggestion in the material before me that the primary ground is engaged on this hearing, and I will not deal with it further. Mr. Alleyne has strong ties in the jurisdiction and there is no evidence that he has or will have the practical capability to flee.

15On the secondary ground, I am of the view that the defence has met the reverse onus of showing that detention is not necessary for the protection or safety of the public, having regard to all the circumstances which include the circumstances set out in s. 515(10)(c), the presumption of innocence, the plan of release, and my assessment of the sureties.

16The prosecution has a very strong case on the possession of stolen goods. It has a strong case on the accused’s participation in the series of break and enters. The prosecution case on the possession of the firearm and the schedule I substances is significantly less compelling given the absence of exclusive possession of either the room or the property, and the existence of other individuals who reside in the premises who have access to the room.

17On the failure to comply, that the accused was not residing with his mother as required by the terms of the prior release is arguable but not airtight despite the evidence that the accused was connected with his grandmother’s address at the time of arrest.

18As to the gravity of the offence, I would note that none of the offences with which the accused is charged is at the most serious end of the spectrum, that is, those for which there is a mandatory life sentence. An indication as to the relative seriousness of the offence of break and enter is that such charges are ordinarily prosecuted in the Ontario Court of Justice. With respect to the break and enter charges, there are certainly victims in that members of the community have had their privacy violated and some of their chattels taken from them. I do not mean to minimize this. There are not, however, victims in the sense that individuals have suffered personal injury as a result of the alleged criminal acts.

19As to the firearm and substance possession offences, these are prima facie considered by society to be on the more serious end of the spectrum. The ingestion of fentanyl is responsible for the primary public health issue in this country other than Covid 19. The increasing proliferation of firearms in the community in the last two decades has resulted in tragic injuries and deaths both of innocent members of the public who are in the wrong place at the wrong time and of people involved in the illicit drug trade.

20It is acknowledged by defence that the quantity of the schedule I substance found is sufficient to be consistent with the purpose of trafficking. The quantity is relatively small, however, compared to the veritable warehouse of substances involved in the case of R. v. Dubajic, 2021 ONSC 1390 relied upon by the prosecution where an arsenal of guns including 57 handguns and 1500 rounds of ammunition were also uncovered in a place in the sole possession of the accused.

21I am of the view that, in relation to the factor in s. 515(10)(c)(iii), there is no evidence that the offences with which the accused is charged was committed with the use of a firearm. In this I must diverge from the opinions of my brother Clark J. and of my sister Nishikawa J. in R. v. Nguyen, 2018 ONSC 687 at 44 and R. v. Dubajic (ibid) at 47 respectively. There is no appellate authority on the point.

22In my view, the existence of circumstances that could lead to an inference that there was an intention to use, or to use if need arise, does not, without more, equate to use. The ordinary meaning of the word “use” entails denotes action of some kind. The dictionary definitions indicate a meaning of employment.

23That a firearm was located in the same room where drugs were also located does not, in my view, constitute prima facie evidence of use of the firearm by the accused.

24Having regard to the nature of the offences with which the accused is charged, the manner in which they were alleged committed, the likelihood of a penitentiary sentence if convicted, and the strength of the crown case, and balancing these against the presumption of innocence, the primacy of release and the strength of the plan and the sureties, I am persuaded that the protection of the safety of the public can be reasonably addressed. The break and enter offences that the accused appears to have been involved in required travelling considerable distances with help from confederates in stolen cars. If, as the plan contemplates, the accused’s communications are monitored and he is not permitted visitors nor left unsupervised, it seems to me unlikely that he will find conditions sufficiently favourable to re-offending.

25I turn now to the tertiary ground. While the Supreme court in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 put aside the concept of a rare and exceptional case and thus opened the door to a broader basis of reliance on the tertiary ground, I am of the view that the decision did not render the combination of the primary and secondary grounds mere surplusage. In short, where the primary and secondary grounds are not sufficient to detain, there should be an articulated basis upon which release would nevertheless cause an informed and reasonable member of society to lose confidence in the administration of justice. This is because the four factors set out in s. 515(10)(c) are also engaged in the court’s analysis of the secondary ground.

26There is no offence for which judicial interim release is statutorily unavailable, and while some members of society may find release offensive, that is not the test.

27The lens through which the court is to look is that of the informed and reasonable member of the public, apprised of the principles of presumption of innocence, primacy of release, cognizant of the law, the facts and the circumstances of the case. Thus to assess whether the tertiary ground is engaged, the court is a barometer of the public zeitgeist. The zeitgeist changes. While it has not been the case in our lifetimes, theft has, in history, been a hanging offence. While the concept of terrorism- that is, mass homicide for ideological or political gains- was unheard of in a time where modern weapons of rapid and mass destruction of life and property were not available to the ordinary person, acts of terror are highlighted in today’s public consciousness.

28The tertiary ground is engaged where there is some different factor, something over and above reasonably addressing the interests of public safety in the secondary ground-- which is not impossible even in the presence of the enumerated factors in 515(10)(c) being weighted against the accused because the countervailing factors are sufficiently strong. The court needs to have articulable reasons of why an informed and reasonable citizen would lose confidence in the administration of justice if the accused were released on the terms and conditions contemplated.

29Here, I am of the view, as set out above, that with respect to factor (iii), there is no evidence that the offences were committed using a firearm. Accordingly it cannot be said that all of the four enumerated factors in considering the tertiary ground weigh in favour of detention. While that alone is not determinative, it detracts from the force of the crown contention that all factors favour detention and that where that is the case, detention ought to be expected as opined in R. v. Johnson, 2020 ONSC 5170 at 28. The crown has not offered an otherwise articulated reason why an informed and reasonable member of the public would lose confidence in the administration of justice if this accused were released on bail.

30For the foregoing reasons, bail review is granted on terms released on May 20, 2022.

___________________________ Low J.