COURT FILE NO.: CR-22-00000227-00BR DATE: 2022-08-05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NATHANIEL GORDON
Counsel: B. Olesko, for the Crown S. Reid, for Mr. Gordon
HEARD: 20 July 2022
S.A.Q. AKHTAR J.
Introduction
[1] Nathaniel Gordon stands charged with the offence of conspiring to commit the murder of Reggie Amankwa contrary to s. 465(1) of the Criminal Code and the attempted murder of the same victim contrary to s. 239(1) of the Criminal Code. The same information includes related firearms charges.
[2] Pursuant to s. 469 of the Criminal Code an accused seeking bail for this offence bears the onus of persuading a court that the conditions of s. 515(10) of the Criminal Code have been satisfied.
Background Facts
[3] The allegations relate to a shooting that occurred on 22 January 2022 at a banquet hall located at 60 Colville Road in the City of Toronto. The event was captured on security cameras installed at different locations within an adjoining alleyway where the incident took place.
[4] At approximately 3:39 am, Mr. Amankwa was standing in the alleyway. Mr. Gordon exited the door which led from the banquet hall into the alley. He was speaking to someone on his phone, and walked past Mr. Amankwa with both men glancing at each other. Mr. Gordon walked in a southerly direction and met with a second unidentified male (the unknown suspect).
[5] Around 3:43 am, Mr. Gordon and the unknown suspect re-entered the alley and approached Amankwa with Mr. Gordon handing an object to the unknown suspect. The Crown alleges that object to be the firearm that shot Mr. Amankwa.
[6] Both males engaged Mr Amankwa in conversation before the unknown suspect drew the firearm, pointed it at Mr. Amankwa’s face and fired, as Mr. Gordon grappled with him. Mr. Amankwa attempted to pull out his own gun but was shot before he could do so and it dropped to the ground.
[7] Mr. Amankwa fell but the unknown suspect continued to fire at him.
[8] Ultimately he and Mr. Gordon fled the scene by getting into a car and driving away.
The Secondary Ground
[9] Let me now deal with the secondary ground.
[10] An accused's release is only denied when there is a substantial likelihood of committing further offences or interfering with the administration of justice and when it is necessary for the public safety: R. v. Morales, 1992 CanLII 53 (SCC), 1992 3 S.C.R. 711, at p. 737; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at paras. 67-68.
[11] When considering the position on bail, a court must assess the strength of the Crown’s case, an accused’s record and past violations of bail, the proposed sureties and his release plan.
[12] Mr. Gordon called two sureties: his parents, Hugh Campbell and Marlene Gordon. He also proposed the use of electronic monitoring to ensure that he would comply with any conditions this court imposes.
[13] The plan is that Mr. Gordon would reside with his father who has attempted to arrange for Mr. Gordon to work with him as a forklift operator for Upper Crust food services and retail company. Mr. Campbell’s shift is in the afternoon and runs from 4 pm to 11pm. If Mr. Campbell is successful in securing this arrangement, Mr. Gordon would have, in effect, supervision throughout the entire day.
[14] If Mr. Campbell is unable to get Mr. Gordon a job at Upper Crust, he will rely on Mr. Gordon’s mother, Marlene Gordon, to supervise Mr. Gordon whilst he, Mr. Campbell, goes to work. Ms. Gordon works as a personal support worker and has altered her shifts to work from 7 am to 11 am so that she can supervise Mr. Gordon who will be dropped off by his father before he goes to work.
[15] There is no doubt that the sureties are honest and credible. They are clearly well intentioned and in my view would do their best to ensure that Mr. Gordon did not commit further offences which result in a danger to the public.
[16] As well, there is the potential for electronic monitoring with Mr. Gordon’s release plan proposing an ankle bracelet. This amounts to what Mr. Gordon claims is a “excellent plan” for release.
[17] On the other side of the ledger Mr. Gordon’s criminal record contains two firearms offences as well as two failures to comply with prior court orders.
[18] On 17 January 2017, Mr. Gordon was convicted of being in possession of a firearm in a vehicle while not authorised to do so. He received a sentence of 1 day in addition to equivalent of 374 days served in pre-sentence custody as well as 3 years probation. On 18 December 2017, Mr. Gordon was convicted of attempting to commit an indictable offence related to the possession of a firearm knowing its possession was unauthorised. He received a suspended sentence after having served the equivalent of 200 days pre-sentence custody. On both occasions, he received mandatory weapon prohibition orders.
[19] I would also note that electronic monitoring is only useful if there is a strong supervision plan: R. v. Osman, 2020 ONSC 964, at para. 35. As well, and as noted in the jurisprudence, electronic monitoring tracks a wearer’s location but not what they are actually doing or if they are committing an offence. The limited use of electronic monitoring has been recognized in other cases: R. v. Palijan, [2012] O.J. No. 6549 (S.C.); R. v. Sotomayor, 2014 ONSC 500, at paras. 40-41; R. v. Ma, 2015 ONSC 7709, at para. 56.
[20] The release plan is dependent on Mr. Campbell getting his employer’s agreement to offer Mr. Gordon a job as a forklift driver. That has not yet been finalised. Nor is it clear that it will be. The back up plan is for Mr. Gordon to stay with his mother until Mr. Campbell finishes his work shift. He would then go to Ms. Gordon’s residence on the other side of the city to collect his son and drive him home. The back up plan which might become the final plan would undoubtedly cause stress and inconvenience if it was the only option.
[21] Mr. Gordon’s parents were also admirably honest about their son’s temperament agreeing that he had anger management issues and a “short fuse”. They both expressed their wish for that he obtain counselling to help with these problems.
[22] In conclusion, I find that on the secondary ground the plan put forward is far from perfect given Mr. Gordon’s prior history and the uncertainty surrounding his employment with Upper Crust.
[23] Having said that, I trust the sureties would make best efforts to ensure their son’s compliance with court conditions and the electronic monitoring, coupled with their supervision may be sufficient to deter any new offences. Even though I find that there might be a risk of future offending - and it is a close call - that risk does not rise to a substantial likelihood of re-offending which would endanger public safety.
The Tertiary Ground
[24] Section 515(10)(c) of the Criminal Code sets out the following statutory factors requiring consideration in deciding whether detention is necessary to maintain confidence in the administration of justice:
(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.
[25] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada explained that the tertiary ground had to be considered separate and apart from the secondary ground. In determining release under the tertiary ground, the question to be asked is whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.
[26] The four factors in s. 515(10)(c) are not exhaustive and, further, must be analysed together and not separately: R. v. E.W.M. (2006), 2006 CanLII 31720 (ON CA), 223 C.C.C. (3d) 407, 215 O.A.C. 125 (C.A.), at para. 31. However, where all four factors have “maximum force” detention is “entirely to be expected”: E.W.M., at para. 32.
[27] Mr. Reid, on behalf of Mr. Gordon fairly concedes that the three of the four factors contained in s. 515(10)(c) are “ticked” and present in this case.
[28] The offence is serious and could have resulted in even more grave consequences based on the fact that they were fired at Mr. Amankwa’s head: Mr. Gordon could have been facing murder charges rather than attempting to or conspiring to murder Mr. Amankwa.
[29] The circumstances of the offence are also very troubling. The victim was shot through the face in a crowded alleyway and a firearm was used. As well, it cannot be disputed that, if convicted, Mr. Gordon will be facing a lengthy prison sentence.
[30] This leads me to consideration of the final factor: the strength of the Crown’s case. As Mr. Reid points out, it is immaterial if any or all of the other factors are satisfied if the Crown’s case is weak. If that is the case, Mr. Gordon will be unlikely to be convicted and spend time in pre-trial custody without any reason or justification. He agrees that the circumstantial cases may be formidable and difficult to overcome. However, he submits that this is not that case.
[31] On the other hand, Ms. Olesko, for the Crown, suggests that when the evidence is looked at as a whole the Crown’s case is very strong and would clearly lead to a conviction.
[32] There is no doubt that apparent strength of the Crown’s case is a factor that “ought to enjoy some prominence” in a balancing exercise of the four factors: R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85, at para. 55.
[33] What is the strength of the Crown’s case?
[34] The first aspect is the video evidence which captures the person who hands the shooter the gun at various times before and after the shooting occurs. Mr. Gordon was initially identified through facial identification software which compared the security camera footage with pictures of known offenders in the system. However, Mr. Reid argues that the Crown cannot rely on this matching process as part of its case. He says on a direct comparison between the photos pursuant to the principles set out in R. v. Nikolovski, 1996 CanLII 158 (SCC), 1996 3 S.C.R. 1197, one can see dissimilarities between the mugshot and security camera photo.
[35] Mr. Reid would also concede a similarity between the striped track pants worn by the man handing over the gun and those found at Mr. Gordon’s after the police execute a search warrant. However, he says that those pants are generic and not unique. Similarly, he says that medallion seen on the suspect is one that cannot be described as unusual or distinctive.
[36] For the following reasons, I disagree.
[37] I do not take the same view as Mr. Reid’s with respect to the identification evidence. In my view, a trier of fact looking at the security camera photo and the mugshot could quite easily conclude that the individual depicted in both is one and the same under Nikolovski.
[38] Secondly, I agree with Ms. Olesko’s submission that in circumstantial cases the entire evidence must be looked at as a whole. Accordingly, the pants and medallion cannot be viewed in isolation but together. The pants are distinctive with a stripe running down the side and the medallion found at Mr. Gordon’s residence is almost identical in size and shape - a rectangular block - to that worn by the suspect on the night of the offence.
[39] It is the fact that the Crown has all three elements which rebut the notion of coincidence.
[40] Taken together, the Crown has a strong circumstantial case that the suspect is indeed Mr. Gordon.
[41] Finally, in addition to the four factors set out in the Criminal Code, Ms. Olesko reminds the court of the criminal record containing gun violence and the prior court order breaches. This offence, she argues, should be viewed in context of the shootings that are occurring with an ugly increasing regularity in this city and the community that Mr. Gordon reside in. Ms. Olesko says that the shooting statistics recorded for Toronto – provided to the court with the Crown materials - must play a part in the tertiary ground equation. I agree.
[42] For these reasons, I find that a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.
[43] Mr. Gordon is accordingly detained on the tertiary ground.
S.A.Q. Akhtar J.
Released: 5 August 2022
COURT FILE NO.: CR-22-00000227-00BR DATE: 2022-08-05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NATHANIEL GORDON
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.