ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Mary Humphrey and Joanne Stuart, for the Crown/Respondent
Respondent
- and -
ALTON GRANT
D. Sid Freeman, for the Defendant/Applicant
Defendant/Applicant
HEARD: November 23-24, 2022, at Toronto, Ontario by Zoom Hearing
Michael G. Quigley J.
Reasons For Decision
Application for Bail under s. 522(2) C.C.
1Life is worth very little when a person can be murdered, simply for being disrespectful. Rala Fedrick paid that price for a hug he gave to Shaqwan Kawano’s girlfriend on July 5, 2014. When he hugged her, Fedrick squeezed Simpson on her buttocks. Kawano was watching. He was very angry. He was insulted: why was she “hugging a f---ing crack-head?” Kawano stormed away from the scene.
2Fedrick would pay for failing to “show respect” to Kawano. Less than 24 hours later he lay dead on the sidewalk just steps down George Street from Seaton House, the oldest and largest shelter for homeless men in downtown Toronto. He died of a fatal gunshot wound, killed, execution style, just before 2 a.m. on July 6, 2014. He was in the company of three or four other men when a man walked up, and without discussion or argument, shot him and ran away. There is no video of the killing, but the same two men who had been seen walking together towards George Street minutes before the killing, were then caught on video surveillance footage running away – Alton Grant and Shaqwan Kawano. They were running together away from the scene of the crime, seconds after it happened.
3Grant and his co-accused Kawano, stand charged with first-degree murder1. This will be a do-over, a retrial.
4In 2017, a jury convicted both accused of first-degree murder. Both appealed. The Court of Appeal found that two of the three grounds of appeal were without merit, but Brown J.A, writing for the Court, found that the trial judge had mis-instructed the jury in relation to exculpatory eyewitness identification evidence. The Court found that error was potentially too significant to the jury’s deliberations to permit the convictions to stand under the curative provisions of the Criminal Code of Canada.2 It ordered a new trial.
5This is a new application for bail in advance of the new trial but the onus remains on the Applicant, Grant, to satisfy the court that he should be released under s. 522(2) of the Code. Given that the alleged crime is first-degree murder, our law requires that he continue to be detained unless he satisfies the Court that his detention is not justified, either on the primary, or the secondary, or the tertiary grounds enumerated in ss. 515(10)(a), (b) or (c) of the Code.
6I advised counsel in early December 2022, with reasons to follow, of my finding that Grant had not discharged his onus to show that his detention is not justified on either the secondary or the tertiary grounds enumerated in ss. 515(10)(b) or (c) of the Code. These are my reasons for reaching that decision.
The background facts
7The circumstances surrounding the offence have been described more than once, at all three levels of courts in Ontario: (i) by Blouin J. of the Ontario Court of Justice in his reasons committing Grant and Kawano to trial on the charges of first-degree murder; 2015 ONCJ 540; (ii) by McWatt J. (as she then was) of this Court, on the defendants’ motion for a directed verdict at the conclusion of the Crown’s case at trial: 2017 ONSC 6661; and (iii) by Brown J.A. of the Court of Appeal on the appeal which resulted in this case being sent back to be re-tried: 2022 ONCA 337.
8I will return to those proceedings in the context of this application. For the purposes of this bail hearing, however, I adopt the detailed recitation of facts set out by Brown J.A., writing on behalf of the Court of Appeal. Justice Brown set out the facts as follows3:
Rala Fedrick was shot and killed around 1:50 a.m. on July 6, 2014. He was standing with several people on George Street, in Toronto, just south of Seaton House, a shelter for homeless men. Although numerous CCTV cameras populate George Street, the area in which Fedrick was shot was not covered by any camera.
The appellants, Shaqwan Kawano and Alton Grant, were friends. They were tried and convicted by a jury of first-degree murder for Fedrick’s death. Both appeal their convictions. For the reasons set out below, I would allow the appeals and direct new trials.
The key events took place on George Street during two periods of time: the afternoon of July 5, 2014, and the early morning hours of July 6, 2014. The events took place near Seaton House, a place where many congregate to socialize. Many of those involved in the events had consumed drugs and alcohol.
The Hug
Around 4:00 p.m. on the afternoon of July 5, 2014, Kawano saw Fedrick grab the buttocks of Tasha Simpson while hugging her near Seaton House.
The Crown alleged that Simpson was Kawano’s girlfriend; Kawano disputed the point. The evidence disclosed that five days after Fedrick was killed, Simpson and Kawano together moved into a rental condo on Park Lawn Road.
Neither Simpson nor Kawano testified.
Two witnesses to the hug did: Sherece Brown-Love and Monia Cargioli.
Brown-Love was ten steps away from Kawano and Simpson when she heard Simpson say to Kawano “There’s no need to get mad. He’s just a friend.” Kawano then “stomped off”. Brown-Love testified that it was a “mild argument” and neither Simpson nor Fedrick looked upset afterwards.
Cargioli witnessed the hug and described it as “a bit inappropriate.” According to her, Kawano said to Simpson, “You’re hugging a fucking crackhead”, which elicited a laugh from Fedrick. Simpson then told Cargioli that Kawano was her boyfriend and “I think he’s kind of mad.” Cargioli told Fedrick to apologize to Kawano. Fedrick later told Cargioli that he had apologized. Cargioli agreed that neither Simpson nor Fedrick thought the hug was a big deal.
It was the Crown’s theory that Kawano took such offence to Fedrick hugging Simpson that he enlisted his friend, Grant, in a plan to kill Fedrick and, early the following morning, Kawano shot Fedrick in retaliation for the inappropriate hug.
The Shooting
According to surveillance cameras, Kawano and Grant went together to George Street just after 7 p.m. At Seaton House, they sat near Fedrick but did not engage him. There was no apparent argument or confrontation between them. Simpson was also in the vicinity. Surveillance captured her leaving the area at 7:46 p.m.
A photo was taken at 8:01 p.m. of the appellants together on Pembroke Street, one block east of George Street. After that, cell tower information showed that Grant remained in and around the downtown core while Kawano went to Scarborough.
Fedrick was killed in the early morning hours of July 6, 2014, by a single shot fired by a person at a location on George Street, south of Seaton House men’s residence. It was the Crown’s theory that Kawano was the person recorded by various CCTV cameras around that time wearing a scarf wrapped around his head, which led to that individual being called “Scarfman” during the trial. It also was the Crown’s position that Kawano, the Scarfman, shot Fedrick.
CCTV and cell phone evidence leading up to the shooting
CCTV cameras did not capture the shooting of Fedrick. However, they recorded the movements of: Scarfman; a person wearing a bucket hat whom the Crown contended was Grant and whom Grant’s counsel referred to as Grant in her closing submissions; the victim, Fedrick; and others, both before and after the shooting.
A Samsung cellphone alleged to be Grant’s received a call from a Blackberry cellphone alleged to be Kawano’s at 10:43 p.m. on July 5, 2014. Surveillance footage from 10:37 p.m. showed Grant, together with girlfriend Jayda Marshall, attending Sherry Crocker’s apartment at 150 Elizabeth Street, Toronto, a location about one kilometre west of Seaton House. Cameras showed Grant leaving the apartment alone at 12:56 a.m. on July 6, 2014. Cell tower records show that Grant’s phone moved from the cell tower at 111 Chestnut (near 150 Elizabeth Street) to the cell tower at 145 Mutual Street near Seaton House at 1:33 a.m. Cell towers similarly traced the return of Kawano’s cellphone to the same Mutual Street cell tower near Seaton House.
CCTV footage and cellphone records showed the following:
1:33:23 a.m.: Grant’s cellphone received a call from Kawano’s.
1:34:44 a.m.: Grant, wearing the bucket hat, jeans and a shirt, ran along a laneway from George Street to Jarvis Street; the laneway was just south of where the shooting would occur.
1:35:24: Grant came back along the laneway toward George Street with Scarfman, who had a scarf around his head, a dark hoodie, and lighter pants.
1:36:23: Scarfman walked north on George Street towards what was known as the “Centre Island” at the entrance to Seaton House and then walked back south.
1:37:24: Grant walked north on George Street. As he passed Centre Island, he looked towards a group of people that included Fedrick. He then walked south on George Street, where he ran into Fedrick. The two walked together for a few seconds, then separated. Grant continued south, while Fedrick crossed George Street, where a man with a white towel joined him and they continued south on George Street. At this point Grant was not in view.
1:40:07 and 1:42:16: There were calls from Grant’s Samsung cellphone to Kawano’s Blackberry cellphone.
1:40:07: Both cellphones pinged on the Mutual Street cell tower near Seaton House.
1:46:27 - 1:48:30: Scarfman walked north on George Street past the Centre Island at Seaton House and then walked back in a southerly direction.
1:50: The shooting occurred near 305 George Street, a few doors south of Seaton House.
Eyewitness evidence at the time of the shooting
- Seven persons testified who were either with or in the immediate vicinity of Fedrick at the time he was shot. Only one of them, David Kamkin, saw the actual shooting. I shall review their evidence in detail when dealing with the ground of appeal concerning the charge on eyewitness identification evidence.4
Cellphone records up until the time of the shooting
Cellphone records showed 32 calls on July 5, 2014, between the Blackberry cellphone alleged to be Kawano’s and the Samsung cellphone alleged to be Mr. Grant’s, and seven calls between midnight and 1:50 a.m. on July 6, 2014, when the shooting occurred. There was no evidence of what was discussed during those calls. More specifically, from 8:58 p.m. on the evening of July 5 until 1:33 a.m. in the early morning of July 6, cellphone records showed that Kawano called Grant fifteen times.
Evidence was adduced at trial by the Crown about the calling patterns between the Blackberry and Samsung cellphones. From June 29, 2014, to July 4, 2014, leading up to the murder, there were between five and 28 calls per day between the phones. On July 5, 2014, there were 32 calls between the phones, including 10 between 8:58 p.m. and 10:43 p.m. Another seven were from midnight on July 6, 2014, to the time of the murder at approximately 1:50 a.m. After the murder the calls between the phones dropped off sharply; on several days there were no calls.
CCTV camera evidence following the shooting
At around 1:50:22, just after the shooting, CCTV recorded Scarfman and the person wearing a bucket hat, jeans, and a shirt, running west in the alleyway from George Street towards Jarvis Street.
At approximately 2:02 a.m., less than 15 minutes after the shooting, CCTV showed Grant and Kawano at 150 Elizabeth Street, the building in which Grant’s friend, Crocker, had an apartment. CCTV cameras showed that Kawano did not have a scarf on his head. Grant and Kawano stayed the night at Crocker’s apartment.
Kawano left Crocker’s apartment at 1:19 p.m. on July 6; Grant left at 3:55 p.m.
Procedural History
9This is a case that it is largely founded on circumstantial evidence and what reasonable inferences may be drawn from that body of evidence. It is a nuanced exercise. Essentially it calls upon the triers to determine the facts upon the evidence they have heard. What they must then do, having determined what the evidential “dots” are, so to speak, is to determine what inferences reasonably arise from those “dots” and then to determine what inferences or findings arise in the process of connecting those “dots.” It calls upon the triers to determine whether the guilt of the accused is the only reasonable inference that is available based upon the entire constellation of direct and circumstantial evidence, considered as a whole. If it is, then a finding of guilt will follow. If not, the accused must be acquitted.
10The Supreme Court instructs on the principles to be applied in the evaluation of circumstantial evidence in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-38 as follows:
35 At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (Ont. C.A.), at p. 479, aff'd without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254 (S.C.C.). However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 (S.C.C.), at para. 58; see also R. v. Pryce, 2014 BCCA 370, 361 B.C.A.C. 301 (B.C. C.A.), at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
36 I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (Ont. C.A.), at pp. 205 and 211, per Middleton J.A., aff'd 1938 CanLII 7 (SCC), [1938] S.C.R. 396 (S.C.C.); R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.), at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw (1971), 1971 CanLII 13 (SCC), [1972] S.C.R. 2 (S.C.C.), at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.5
11Each of the proceedings on the first trial addressed this issue. All reached essentially consistent results, but with the several jurists involved appearing to express different positions on the strength of the Crown’s case. The preliminary inquiry was held in the Ontario Court of Justice over 19 days in February, March, May, June, and August of 2015. The preliminary inquiry judge delivered his ruling on September 30, 2015, committing Grant and Kawano to trial. His conclusion is at paras. 26-29 of his reasons:
[26] Although the eyewitness evidence of the shooting contains varying observations and descriptions of the alleged assailant by witnesses who were in various states of sobriety, the jury could conclude that it was Mr. Kawano wearing a head scarf walking towards the murder scene seconds before the murder. They could also conclude that the person who shot the deceased was a young man wearing a head scarf or head covering. The jury could also conclude that the shooter ran in a south-westerly direction through the alleyway north of 300 George Street. Accordingly, it would be open to that jury to find that the only rational conclusion on the evidence to be that Kawano was the shooter.
[27] The jury could also conclude on the evidence of some eyewitnesses, along with the CCTV evidence that there was a second person running with the shooter, and that second person was a party to the shooting. The jury could find that second person to be Mr. Grant. The CCTV evidence, and the cell phone records, display significant contact between both defendants in the fifteen minutes before the shooting. The jury could conclude that Mr. Grant jogged out to Jarvis Street to connect with Mr. Kawano and bring him to George Street. The jury could conclude that Grant was conducting observations of the deceased in order to assist Mr. Kawano. And the jury could conclude that Mr. Grant ran from the scene with Kawano, and a short time later provided refuge at a friend’s apartment to assist his friend in successfully carrying out his plan to kill Mr. Fedrick.
[28] And, as indicated above in paragraphs 22 to 24, there is an inference available that a plan existed and was deliberated upon, and that Mr. Grant, by his actions captured on video immediately before and after the shooting, was aware of the plan and assisted in its execution.
[29] Accordingly, both defendants must be committed to trial on First Degree Murder charges. I cannot leave this case without observing that in my view, the case against both (but especially Grant) is exceedingly weak, especially regarding the reliability of the eyewitnesses and inconsistencies in their respective descriptions. Only painstaking police work that catalogued the video surveillance allows me to find as I do. Although guilt is one inference to be drawn from the evidence, and a reasonable jury could conclude that to be the only rational inference, I would not come to that same conclusion. It is not the only rational inference. Obviously, I appreciate my role at a preliminary hearing to be much different, but if this had been a trial, I would have entered a finding of not guilty for both defendants. If I had jurisdiction to grant bail, which I do not, I would likely do so based upon s. 515(10)(c)(i) – the strength (or lack thereof) of the prosecution’s case.
12I will return comment below to the concluding comments of the preliminary inquiry judge. Regardless of his opinion, however, at the conclusion of the Crown’s case at trial, the trial judge as well agreed on the presence of a case that met the legal tests to go to the jury, just as he did, but suggested a very different view of the strength of the Crown’s case in denying the defendants’ motions for a directed verdict of acquittal on November 16, 2017. At paras. 21-26, the trial judge concluded as follows:
21 This is a circumstantial case. Mr. Kawano submits that there is no direct evidence of who shot Mr. Fedrick and the issue cannot be determined on the evidence in this case without the triers of fact speculating. Second, there is no evidence of planning and deliberation without speculation on the part of the triers of fact as well. Mr. Grant submits that the tie between him and Mr. Kawano is too tenuous and invites speculation on the part of the jury for a finding that he was a party to the murder.
24 I find that the Crown's case is a strong circumstantial case. It contains sufficient evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.
25 The evidence of the phone calls on the night of the murder is evidence of a planned and deliberate murder. In fact, evidence that the shooting was planned and deliberate is laid out throughout the commission of the murder. That Mr. Kawano is the shooter is supported by clothing he wore and the identification of Mr. Kawano on the video surveillance on George St. before the murder. That he is the shooter is also in the following evidence: the relative location of the two accused to each other in the area of the murder at relevant times, contained on the cell phone tower records; the movements of the two accused in relation to Mr. Fedrick prior to the shooting; Mr. Kawano's disguise, worn on George St. up to and after the shooting; the movements of the two accused, captured on the surveillance footage, in relation to the time of the shooting and the evidence that there was no one else around the victim, but his friends and the two accused; that Mr. Kawano had never met Ms. Crocker before; the misleading sign-in records in the form of "p.m." as opposed to the "a.m." time Mr. Kawano and Mr. Grant were actually at Ms. Crocker's apartment; and the fact that Mr. Grant, arranged in advance of the killing, for Mr. Kawano to go to Ms. Crocker's apartment afterwards.
26 On the basis of that evidence, the applications are dismissed.
13I note that the trial judge did not express her opinion on what she thought the correct result should be. She simply expressed her view that the Crown’s case was a strong circumstantial case, which contained sufficient cogent evidence upon which a reasonable jury, properly instructed, could (not should, or would), return a verdict of guilty.
14Nothing more was called for. In dismissing the defendant’s motions for a directed verdict of acquittal, the only question is was whether a properly instructed jury, acting judicially could convict on the evidence. The trial judge answered that question, and that was all that was required to dismiss the motion.
15On November 18, 2017, the jury did convict both accused of first-degree murder, and the trial judge sentenced each of them to the mandatory life sentence of twenty-five years of imprisonment with no opportunity for parole. That verdict came only after requests by the triers to replay Kamkin’s evidence, and some difficulty reaching a unanimous verdict, as evidenced by the five days they deliberated and the trial judge finding it necessary to exhort the jury on the fourth day.
16Both accused appealed their convictions on three grounds. One was based on the Canadian Charter of Rights and Freedoms6, the second that the trial judge mis-instructed the jury on how they should evaluate and weigh exculpatory identification evidence, and third on the basis that the verdict was unreasonable.
17The only one of the three grounds found to have merit related to the jury instructions. The trial judge had not followed the Court of Appeal’s prescription arising out of R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45. Justice Brown described that problem as follows at para. 84 of his reasons:
As this court has pointed out, the need for special care concerning eyewitness identification evidence arises because of the danger of a wrongful conviction: Wristen, at para. 46; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 187. That danger does not exist where the eyewitness evidence tends to exculpate the accused: Wristen, at para. 46; Vassel, at para. 187. Consequently, where the eyewitness evidence tends to exculpate the accused, the traditional instruction regarding eyewitness identification evidence should be avoided as it could leave the jury with an erroneous impression about the quality of evidence that could leave them with a reasonable doubt: Wristen, at para. 46; Vassel, at para. 188.
18Justice Brown found that error to be of sufficient significance that it could not be cured under the proviso and a new trial was required. He writes, at paras. 113-117, as follows:
[113] A properly instructed jury may conclude, despite the frailties of eyewitness identification evidence, that the eyewitnesses’ testimony is reliable and may enter a conviction on that basis, although a jury may not convict on the basis of such evidence alone where that testimony, even if believed, would necessarily leave a reasonable doubt in the mind of a reasonable juror: Alvarez, at para. 175. In the present case, some of the eyewitness evidence tended to implicate Kawano, disguised as Scarfman, as the shooter, while some was exculpatory in nature. As the triers of fact, the jury would have to sort out the conflicting eyewitness evidence and make the necessary credibility and reliability findings regarding that evidence. The jury would then have to consider those findings together with the other evidence, including the evidence of a possible motive, as well as the significant body of CCTV, cellphone call, cell tower evidence regarding the locations of and the timing of the contact between the appellants during the latter part of July 5 and the early morning hours of July 6, 2014.
[114] It is not without significance to the unreasonable verdict analysis that the appellants did not testify at trial to provide an alternative narrative to that furnished by some of the eyewitness testimony, as well as the CCTV and cellphone evidence.
[115] Based on the findings outlined above, a jury could reasonably have concluded that the only reasonable conclusion was that: Kawano, in response to Fedrick’s inappropriate touching of Simpson, planned and deliberated to cause Fedrick’s death or cause him bodily harm that Kawano knew was likely to cause his death and was reckless whether death ensued or not; Kawano shared his plan with Grant, who assisted Kawano by directing Fedrick to the location of the shooting, where Kawano, disguised as Scarfman, shot Fedrick, and then left the scene with Grant.
[116] To echo the comments made by Doherty J.A. in Dadollahi-Sarab, the factual findings outlined above were not the only findings a jury could have made on this evidence. However, as Doherty J.A. went on to state at paras. 45 and 46:
[T]he existence of an evidentiary road leading to an acquittal does not make a conviction unreasonable ...
[A verdict] is not, however, rendered unreasonable because the evidence afforded an opportunity for an acquittal. When a verdict is said to be unreasonable, the question is not whether the jury could reasonably have acquitted, but whether the jury, acting judicially, that is applying the law as provided by the trial judge to the facts as found by the jury, could reasonably have concluded the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.
[117] Given that a reviewing court must remain mindful that the trier of fact is best- placed to assess the significance of inconsistencies within and amongst witnesses’ testimony and given the high standard to establish an unreasonable verdict, I cannot say that no properly instructed jury, acting judicially, could reasonably have rendered the verdict finding Grant guilty of first-degree murder. [My emphasis.]
19I have detailed these finding from the earlier proceedings because they become relevant to the question of the strength of the Crown’s case, as it weighs in the balancing of the factors in s. 515(10)(c) of the Code, to determine whether detention is required under the tertiary ground. That issue also bears on the secondary ground analysis.
Analysis
20Since Crown counsel concedes that detention is not justified on the primary ground, I will proceed to the analysis of the secondary and tertiary grounds that are said to be engaged here. As I do, I remind myself of basic principles, including the Supreme Court of Canada’s emphasis on the importance of the presumption of innocence as it pertains to pre-trial release, that pre-trial detention is not the norm but the exception, and that under our law, the default presumption is that the accused will be released: R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 1.
21The burden does nonetheless remain on the accused under s. 515(10)(b) of the Code to demonstrate that his detention is not necessary for the protection of the public, having regard to all the circumstances including any substantial likelihood that he will, if released from custody, commit a criminal offence, or interfere with the administration of justice. It also rests upon him to demonstrate that his detention is not necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the factors enumerated in s. 515(10)(c) of the Code.
22The standards to be applied are well known. They have been described and refined through numerous judicial review and appellate decisions across Canada and at the Supreme Court of Canada. Several touchstone references will assist to frame the analytical approach I am required to apply in this case.
23The Supreme Court instructed in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 that bail is not to be denied for individuals who pose a mere risk of committing an offence or interfering with the administration of justice while on bail. Rather, it is to be denied only for those who pose a “substantial likelihood” of committing an offence, and only where that substantial likelihood endangers the protection of the safety of the public. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.
24An apt description of the issue, in my view, can be found in R. v. Walton, [2005] O.J. No. 48 (S.C.), at para. 11, where Gans J. described the issue, not as one of absolute certainty, but rather whether or not there is a reasonably manageable risk that if the accused is released into the community under the proposed plan, that the likelihood of re-offending is not substantial. To me, this is the core of the secondary ground test.
25Even in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 56, the Supreme Court observed that a judge on a bail review must keep in mind that at this stage of the criminal proceedings the accused is still presumed innocent, regardless of the gravity of the offence, the strength of the prosecution's case, or the possibility of a lengthy term of imprisonment.
Secondary Grounds
26On this reverse onus bail hearing, s. 515(10)(b) of the Code calls upon me to determine, whether the accused has shown on a balance of probabilities that there are no secondary ground concerns present here. The secondary ground addresses the circumstance where the continued detention of the accused 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. It requires an analysis, with specific focus on the specific terms of the specific plan of release that the sureties have put forward, of whether detention is warranted and necessary “for the protection or safety of the public, including any victim of or witness to the offence.”
27In order to assess the substantial likelihood that the accused will commit a further offence, the Court must consider (i) the nature of the offence; (ii) the relevant circumstances of the offence which may put into issue events prior to and subsequent to the offence; (iii) the likelihood of conviction and the degree of participation of the accused; (iv) the relationship between the accused and the victim; (v) the profile of the accused which includes his occupation, lifestyle, criminal record, family situation and mental state; (vi) his conduct prior to the commission of the alleged offence; and (vii) the danger which the interim release of the accused represents for the community specifically affected by the matter.
28Counsel for Grant argues that he has met his burden of showing why his detention under the secondary ground is not justified, considering these factors as a whole. In her submission, she argues Grant does not present a substantial risk of reoffending or interference with the administration of justice. She says the plan is the strictest that could be available: the supervision plan being proposed will require Grant to live with his sister and be bound by a strict house arrest, with electronic monitoring. In counsel’s submission, any concerns raised under the secondary ground are addressed by this supervision plan.
29Crown counsel contends this plan of release is deficient. She acknowledges that Grant does not formally have a prior criminal record. but argues that I cannot ignore that he is alleged to have been a party to this planned and deliberate homicide. His participation leading up to, during and immediately following the murder is claimed to make him a party to this offence with Kawano. To date the firearm used during the commission of this offence has not been located.
30Notwithstanding that the charges against Grant and Kawano have been sent back for a retrial, this time before a judge alone commencing in late February, the fact is Grant has already been found guilty of murder by the jury on the first trial, as has Kawano, based upon the evidence presented at that trial. In my view, the significance of that finding at that time should not and cannot be ignored.
31To understand its significance, it must be remembered that the Court of Appeal dismissed not only the Charter based ground of appeal, but more importantly dismissed Grant and Kawano’s claim that the verdict was unreasonable. Justice Brown concluded at para. 117 that:
[117] Given that a reviewing court must remain mindful that the trier of fact is best- placed to assess the significance of inconsistencies within and amongst witnesses’ testimony and given the high standard to establish an unreasonable verdict, I cannot say that no properly instructed jury, acting judicially, could reasonably have rendered the verdict finding Grant guilty of first-degree murder.
As such, it appears plain that at least the Court of Appeal considers that it is legally possible that a jury, acting judicially, could reasonably have rendered the verdict they did finding Grant guilty of first-degree murder. I return to this point below.
32The Crown also alleges that Grant has an institutional disciplinary record that raises secondary ground concerns, and in particular that it demonstrates that he will be disinclined to adhere to the proposed plan of release with the sureties. A further secondary ground issue is that Grant was recently charged with possession of a weapon in the Toronto East Detention Centre (“TEDC”). A knife blade was found hidden in a Snickers bar in the cell he shares with another inmate. He is presently also detained on that charge, although I acknowledge that it may be impossible to determine which of the two inmates who occupied that cell at the time, Grant and another inmate, was in actual or constructive possession of that knife blade. As such, I have not considered that outstanding charge as an additional negative factor beyond the institutional disciplinary record that is proven, and that itself does contain several items that do not instill confidence in the likelihood of the accused abiding by the plan, at least absent other factors.
33The plan of release put before me on this hearing was in a state of flux right up until the time the hearing commenced. It now contemplates two sureties, Grant’s sister, Sherene Goselyn, and his mother, Brenda Young. He would live at his sister’s apartment in Scarborough under a 24/7 house arrest plan of release.7 Grant’s sister lives there in a two-bedroom apartment on the 17th floor with her young son, who is in Grade 9. She is her son’s principal caregiver, and she drives him to school each day, about seven minutes away. Grant would be living with her, sleeping on a pullout couch located in the living room of her home. Both sureties provided affidavits to the Court in support of their proposed suretyship and pledged a total amount of some $30,000.
34Initially it was proposed that Sherene’s ex-boyfriend, Jamal Dickson, would also be a surety and intended that he would assist, particularly in the driving component of the plan. However, the day before this hearing, the plan changed to exclude Mr. Dickson. It turned out that Mr. Dickson has outstanding charges, and is thus not an appropriate surety, yet Ms. Goselyn testified that she had no knowledge of these outstanding matters.
35Neither, it turned out, was Ms. Goselyn evidently aware at the time she swore her affidavit, that she still had over $1,000 of outstanding parking tickets. She acknowledged having received all those fines, but she did not believe there was any issue, and testified that the fines had all been paid. She said she was shocked the day before this hearing to learn that there were still outstanding fines, so she went to the Ministry of Transport to pay them and thereby reinstate her drivers’ licence which had been officially suspended for non-payment.
36Ms. Goselyn is a community social worker. She said she received those parking tickets while working in the community one day a week when she was required her clientele. The remaining days she would be working from home and could monitor her brother. She admitted the parking tickets were legally issued but she said she was not worried about those fines. Somewhat surprisingly to me, she claimed that they would be reimbursed to her by her employer, the Ministry of Social Development. There was no confirmation of that claim, but it is counter intuitive to me that provincial government employees or persons on contract would be reimbursed for violating provincial or municipal parking laws or bylaws with impunity, as an accepted cost of the employee’s service.
37As for her brother, Grant, Ms. Goselyn acknowledged she had just learned the day before from Ms. Freeman that those institutional charges against her brother included having been in possession of contraband within the Collins Bay Penitentiary, and also of having possessed a homemade stabbing weapon. She was asked whether it concerned her that she had now learned about her brother’s institutional disciplinary history, or that he had failed in the past to abide by terms of release. To the contrary, she said, it would be different now because “I can now have control over him.” She was emphatic that she would play the role of jailer to the fullest, and not hesitate to call police if Grant deviated in the slightest from the plan of release, yet she felt the prior history was of little import and her claimed lack of concern struck me as failing to fully appreciate what was confronting her, and taking a somewhat unrealistic view of the ease with which she would be able to control her brother were he to be released.
38Ms. Goselyn may prove to be an acceptable surety but I was left with a feeling of uncertainty. I felt concern that she may cut corners when difficult or competing circumstances arise rather than adhere to the letter of the plan of release. I accept counsel’s submission that the parking tickets are not really central to her suitability, yet her willingness to accumulate over $1,000 of parking tickets for parking in prohibited areas while servicing her clients in the community does betray a willingness to ignore rules when they are inconvenient.
39In my view, it just shows a persistent disregard for minor things but that attitude raises a concern that could easily spill over into how she manages her brother, when she starts to feel the pressure and the burden of being his surety. I fear it could lead to shortcuts. It would be very easy to say, for example, “[o]h, he’s just going to go outside for a short minute without me” or whatever the case may be.
40The other surety was to be Ms. Brenda Young, Grant’s mother. She thought she had been a surety for him before when he was a youth but could not recall for sure. She would supplement or take his sister’s place as surety when the sister was unavailable, however, Ms. Young also acknowledged that she is elderly and only drives a little bit in her own neighbourhood, and not on the highways.
41Ms. Young did not have extensive knowledge of Grant’s antecedents. She knew he was in the penitentiary for murder, but she never visited him there during the eight years he was incarcerated in connection with the conviction arising out of the first trial. She chose not to. She said she also heard from Ms. Freeman about his actual and alleged institutional wrongdoings but only after she had signed her affidavit. She did agree she was concerned that he was alleged to have been found with a knife. In reply, however, she clarified that she meant that the result of her concern was that if he deviated from the plan in the slightest, she would call police and send him back to detention.
42Looking first at these proposed sureties, I accept the proposition that there is no perfect plan. However, there are stronger plans and weaker plans. This is a murder bail application. I would not describe this plan as especially weak, but neither is it as strong as I would hope for in a case like this. Apart from the sureties themselves and the concerns I have expressed about potential lassitude on their part in a pressured circumstance, in my observation the plan also exhibits several facets that may cause it to be difficult to administer as a practical matter.
43It was appropriate to remove Mr. Dickson from the plan, even if at the last moment. He was not a suitable surety given he had lied about not having any outstanding criminal charges when he did, but the reality is, the plan is now down to one surety who can drive, and a second who does not drive except very locally. I find that the presence effectively of only one surety who can drive causes the plan to be weaker because it places an additional burden on Ms. Goselyn.
44I acknowledge that the sureties were not questioned specifically on the point, and I do accept Ms. Freeman’s submissions that there are probably other transportation arrangements that could possibly be made. However, what was absent was any evidence that those issues had been considered or that the sureties had discussed or considered how they would deal with the plethora of realistic life circumstances that might arise during the period Grant would be released into their supervision. While there may be such alternatives, they were unascertained and speculative, and remained of uncertain reliability.
45Moreover, while GPS monitoring is said to be a strength, and it can be, it only provides so much information. It provides the location of the accused. There is extensive case law on the point that GPS has very limited utility, in that it tracks where a person is, but not what they are doing or who they are with: R. v. Ma, 2015 ONSC 7709, at paras. 55-56.
46The proposed release plan permits Grant to move around provided he is with his surety, but GPS monitoring is unable to distinguish whether he is with his surety or not, or any other potential aspects of noncompliance. Further, the police response time in response to a GPS locational violation, even at optimal speed which is never guaranteed, may not be enough to prevent a breach or an offence from being committed. In my view, this is a point of particular concern here where all of the witnesses are vulnerable members of the downtrodden downtown community who would have good reason to experience fear in relation to testifying at the new trial if Grant were to be released.
47Defence counsel refers to R. v. B.M.D., 2020 ONSC 2671, relative to the significance of a release plan including electronic monitoring. In that case, like here, electronic monitoring was proposed and the Crown took the position that it would not be effective in ensuring that BMD complied with the terms of his release, because there was nothing to prevent BMD from simply cutting off the ankle bracelet and fleeing. It would take some minutes, and perhaps considerably longer, for the police to arrive on scene. By that time, BMD would be long gone. Moreover, while the ankle bracelet would enable the monitoring of BMD’s location (assuming he had not improperly removed the bracelet), it would not permit observation of his behaviour. As such, Crown counsel contended in that case that even if BMD remained within his grandmother’s residence, he would still be able commit further crimes.
48Unlike in this case, however, BMD filed an affidavit in which he affirmed that his mental health has been greatly affected as a consequence of poor jail conditions, understaffing and ongoing lockdowns at the Toronto South Detention Centre. BMD told the court that these conditions had worsened significantly since the COVID-19 pandemic commenced in March of 2020. BMD also expressed personal fear of contracting COVID-19 because of an inability to practice social distancing measures.
49Justice Monahan found that BMD’s detention was no longer required. First, while acknowledging that there was no guarantee that BMD would not commit further crimes, he observed that no such guarantee was required. He was confident based on the release plan as a whole, and importantly, having heard from BMD himself, that there was no substantial likelihood that BMD would commit further crimes if released.
50This segues to another item of importance in considering the releasability of the accused. Here, Grant has not sworn an affidavit relating to any aspects of the matter, acknowledging any, facts whatsoever, or more importantly, acknowledging that if he were to be granted judicial interim release, he would swear to abide by the terms of release that might be imposed. I acknowledge that Ms. Goselyn states that she and Ms. Young have spoken with Grant about his release and have made it very clear to him that they would be strictly enforcing the conditions, should he be released. She stated that he acknowledged to her that he understood how serious the matter is and that the sureties intended to call the police at the first indication that he may be about to violate any of his conditions. Ms. Young said he knew she would be strictly enforcing the conditions if he is released.
51Defence counsel submitted that I should accept what the sureties have said about what their intentions are with respect to enforcing the bail terms if granted, and Ms. Goselyn’s statement that she had a conversation with Grant, as providing some comfort about his position with respect to obedience, even though she also acknowledges that it does not go all the way. However, in my view the problem remains that it is not his voice. He has not provided his promise to the court.
52Rule 20.05 of the Criminal Proceeding Rules for the Superior Court of Justice (Ontario), SI/2012-7 requires that an accused person who is bringing an application before the court shall provide an affidavit in accordance with sub-rule 2. The affidavit is to contain the particulars of the charge and other outstanding offences that he is facing and the date or dates of the scheduled trial. It also calls upon him to speak to where he will live and what he will do if released. It is true that the sureties have provided that information in their affidavits but there is no statement by Grant that he is prepared to abide by the rules of Ms. Goselyn’s house. The rule calls upon Grant to speak to the conditions of release that he will be complying with while on bail, but that has not been done. The sureties tell us what the terms of release are, and that they know he will abide by them, but Grant himself provides no such assurance.
53Releasability of an accused person on bail is always an individual assessment that all comes down to the accused. It comes down to the accused’s willingness to abide by the plan. When an accused person in an affidavit says, “I promise to the court that I will abide by the plan, I know what the plan is, I know what my grandmother and my sister are going to require me to do”, then there is an actual statement from the accused that indicates he is a full participant in the plan that is being put forward, if I can put it that way. Here, that is not the case. There is no statement by him like that. Mr. Grant has not offered any evidence by way of his own affidavit or testimony to demonstrate his own commitment to abiding by the proposed release plan or any information that is specific to him on issues raised by his counsel. I ought to have that from his mouth or in an affidavit, but I do not.
54Defence counsel suggested that the rule should not be regarded as a substantial requirement, but instead as a mere procedural formality, but that is not what the rule appears to provide on its face. It does not appear to be a mere suggestion. It is mandatory. Justice Myers of this Court canvasses the issue thoroughly in R. v. Bryan, 2016 ONSC 7585, in which he dismissed an application for bail for ultimate noncompliance with the Rules, when an accused withdrew his affidavit rather than face cross-examination of its contents relating to matters other than the charges before the court.
55In Bryan, at paras. 35-36, Myers J. writes as follows:
35 Finally, Mr. Bayliss argues that if I grant leave to the Crown to cross-examine at the hearing, as I have done, he wishes to withdraw Mr. Bryan’s affidavit and to try to prove the baseline factual matrix through other witnesses. The Crown asks me to dismiss the application for bail if Mr. Bryan withdraws his affidavit to avoid cross-examination. In R. v. Trudel, 2006 CarswellOnt 1746 (Ont. C.A.)], 2006 CanLII 9036 the judge who heard a bail application allowed it to proceed without the accused delivering an affidavit despite being required to do so by the Rules. The Court of Appeal dismissed an appeal by the Crown. In doing so, the Court of Appeal held at para. 6:
. . . The Criminal Code does not require the affidavit and we were informed that the Rules of several other provinces do not require an affidavit. We agree with the respondent that the requirement for the affidavit is purely procedural in nature and that remedies for failure to comply with the rule are also procedural. The Crown had a procedural remedy. It could have insisted upon an affidavit prior to the hearing of the application so that it could cross-examine the respondent. The Crown did not take that step. The record contained all the information required by the rule. [Emphasis in original.]
36 That is, while an affidavit is not required under the Criminal Code itself, the Court of Appeal held that, under the Rules governing proceedings on a bail application in this court, the Crown has a procedural entitlement to insist that the accused give evidence and be subject to cross-examination. I note that those three appellate judges too are deemed to know the law and they too did not seem to have any difficulty with the notion that an accused will be subjected to cross-examination on an affidavit compelled at the Crown’s insistence on a bail application. In the case at bar, the Crown seeks its procedural remedy to insist that the accused deliver an affidavit and be cross-examined on it just as the Court of Appeal says it can when confronted with this situation.
56The Court then refers to the eleven factors set out in rule 34.03, which stipulates that an application shall not be heard in circumstances where an applicant has failed to comply with the rules governing an application, unless the presiding judge grants leave, “after taking into account all the circumstances of the case, including but not limited to” those eleven factors. In other words, Bryan concludes that if an applicant is in breach of the rules, his application for bail shall not be heard unless he obtains leave in accordance with those eleven factors.
57As a result, it appears it was open to me to dismiss this application outright for procedural non-compliance, unless I determined to grant leave having considered those factors. Regrettably, counsel had not provided me with the benefit of that decision when I permitted this application to proceed without an affidavit from Grant, in response to Ms. Freeman’s essentially ad hoc application for leave, made close to the outset of the hearing. I only learned of the Bryan decision later.
58At the time the issue was raised near the commencement of the hearing, the Crown registered its preference and wish that there should have been an affidavit sworn or affirmed by the accused, that it would have liked to cross-examine Grant as would have been it’s right and reminded me of negative inferences that are available to me to be drawn as a result of the absence of the affidavit. Nevertheless, I think it is fair to say that from my perspective, the importance of proceeding with the hearing and ensuring that Grant would have the opportunity to have an application for bail considered on the merits took precedence over the procedural deficiency.
59Consequently, unlike in Bryan, I did not dismiss Grant’s bail application for procedural non-compliance and the point is thus really of no moment procedurally in this case. However, the fact remains that Mr. Grant has not confirmed his willingness to abide by the rules contemplated in the plan of release. As such, there is an absence of evidence that could have added support to the plan, but that does not. That is an absence of the best evidence, not hearsay evidence of the sureties, that favours detention, rather than release.
60On balance, having regard to the seriousness of this charge, Grant’s record of institutional offences, my concerns over aspects of the sureties’ testimony, and Grant’s failure to provide his own reassurance to the Court of his intention to abide by the plan, I find that Grant has not discharged his burden of persuasion. He has not discharged his onus to demonstrate on a balance of probabilities that his continued detention is not 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 or interfere with the administration of justice. Grant will continue to be detained on the secondary ground.
Tertiary Ground
61I turn finally to consider whether Grant has met his onus to show that his detention is not necessary on the tertiary ground. While perhaps technically unnecessary, in the event that I have erred in my secondary ground findings and given the extensive focus of this hearing on the strength of the Crown’s case against the accused, it is important in my view that the Court reach findings on the tertiary ground factors, including all circumstances, as I will discuss below.
62On a tertiary ground analysis, the standard and methodology is clear. I like the simplicity of how Dellandrea J. described it succinctly at para. 53 in R. v. Morgan, 2019 ONCJ 1005:
- The question before me is: would a reasonable member of the community be satisfied by the Crown's request, that denial of bail is necessary to maintain confidence in the administration of justice: (St. Cloud, 2015 SCC 27, at para. 68). Or would the proposed plan of release satisfy the public's confidence with the administration of justice, given their awareness of these allegations, as well as of the presumption of innocence, and Mr. Morgan's constitutional right not to be denied reasonable bail?
63Section 515(10)(c) of the Code justifies the detention of an accused person in custody only if it is necessary “to maintain confidence in the administration of justice, having regard to all of the circumstances.” The specific language reads as follows:
(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.
64The primary and secondary grounds are focused on the risk that an accused person will not come to court as ordered or will commit further offences. The focus is on the accused. In contrast, the tertiary ground considers the impact of release on public confidence in our justice system.
65The person whose confidence is to be considered for this purpose as representative of the public at large, the so-called reasonable member of the public in this community, is generally one who is a reasonable and informed member of the public. However, we also assume that person is aware of (i) the philosophy of the law of bail in this country, (ii) how the approach to bail pending trial is informed by Charter values, (iii) the presumption of innocence, and (iv) is capable of assessing the relationship of those values to the circumstances of a given case: see St-Cloud, at paras. 75-80.
66The tertiary ground is a separate and distinct ground for detention and the Supreme Court of Canada in St-Cloud states at para. 53 that the tertiary ground does not require rare or exceptional circumstances, but it does require that I take account of all the circumstances of the offence, with particular focus on the four factors set out in s. 515(10)(c) of the Code. After balancing all these factors, and all other relevant circumstances, I am called upon to determine whether detention is necessary to maintain the confidence of reasonable members of the public in the administration of justice.
67While the first and usually most important factor under the tertiary ground is the strength of the Crown’s case, it is the Crown’s position that the four enumerated factors are all present and strong in this case. In assessing all of the circumstances, it is the position of the Crown that the public’s confidence in the administration of justice calls for Grant’s continuing detention.
68Defence counsel vigorously resists that position. To the contrary, she argues that the Crown’s case is weak. The issue of the strength of the case is central because the evidence is in large measure circumstantial, with, in her submission, multiple competing inferences capable of being drawn. To assist and focus this tertiary ground analysis, I have chosen to deal with the other three factors first, since they are uncontested.
69It is evident from the statutory language that Parliament specifically chose to emphasize that the presence or use of a firearm is an aspect of the balancing that will be of particular concern and weight under the tertiary ground, a factor that increases the gravamen of the offence. It is undisputed that first-degree murder is one of the most serious offences in the Code.
70The circumstances surrounding the commission of the offence are egregious:
(i) the weapon used to kill Fedrick was a firearm,
(ii) he was shot with no warning, at close range, execution style, while standing with a group of friends on a public street,
(iii) the killing occurred in a vulnerable community (near Seaton House), and
(iv) the firearm used in the murder was never recovered.
71The fourth factor deals with the potential sentence the Applicant is facing upon conviction. A conviction for first-degree murder requires a mandatory sentence of life in prison with parole ineligibility set at a minimum of twenty-five years. There is no more serious penalty provided for under the criminal law of Canada.
72The defence concedes that the second, third and fourth factors under the tertiary ground are present in full, and on their own favour Grant’s continuing detention That was a sensible concession because it is obvious that this is a very serious offence: it’s a killing involving a gun that happened in a vulnerable community. The issue in dispute is the strength of the Crown’s case.
(i) Strength of the Crown’s Case
73The Crown claims its case against Grant (and Kawano) is strong and that the evidence, particularly the video surveillance evidence, and the telephone records of calls made between the accused, geographically positioned by triangulation reference to the transmission tower only steps away from the murder site in downtown Toronto, provide reliable, objective and compelling evidence of his culpability on the charge of first-degree murder.
74The Supreme Court provided guidance in St-Cloud, at paras. 57-58, on how this factor ought to be assessed in the context of a bail hearing:
57 An interim release hearing is a summary proceeding in which more flexible rules of evidence apply. As a result, some of the evidence admitted at this hearing may later be excluded at trial. As Justice Trotter notes, it may be difficult to assess the strength of the prosecution's case at such a hearing: "The expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown" (p. 3-7).
58 Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution's case. On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case.
75Thus, in assessing the apparent strength of the prosecution’s case, I must consider the quality of the evidence, but am not to hold the prosecution to the standard of proof required at a trial. Also, when considering inferences on this bail hearing, R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18 directs that if there is more than one inference capable of reasonably being drawn from a fact or set of facts, or from a series of transactions or events, it is the one that favours the Crown that must be considered. This is the same rule as applies in determining whether the accused should be committed at a preliminary hearing, or on a motion for a directed verdict of acquittal brought by the defence at the conclusion of the Crown’s case:
18 The preliminary inquiry judge in this appeal, Moore J., correctly stated the test for committal and the corresponding onus that falls on the Crown. He also recognized that a preliminary inquiry judge is not permitted to assess credibility or reliability, and that where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminary inquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction: see R. v. Dubois, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366 (S.C.C.), at p. 380.
76In the trial judge’s reasons in R. v. Grant and Kawano on their motion for a directed verdict of acquittal at the conclusion of the Crown’s case, she writes, at paras. 22-23:
22 The test, in these circumstances, is one used at the Preliminary Inquiry where the Crown seeks a committal on the basis of circumstantial evidence. McLachlin C.J.C., in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.), explained the following at pp. 31-32:
The question then becomes the remaining elements of the offence - that is, those elements as to which the Crown has not advanced direct evidence - may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should be believed... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
23 The parties submit that there are competing inferences that can be drawn from the evidence led by the Crown. Those will be left for the jury to resolve (Arcuri, at p. 31-32). For the purpose of this application, as is the test for committal after a Preliminary Inquiry, where I find that “more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered” (R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.) at para. 18). “If a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it” (Arcuri, at p. 31-32). So too must I in this application. [My emphasis.]
77I emphasize the point that neither the preliminary inquiry judge, a bail application judge assessing the strength of the Crown’s case, or the trial judge on a motion for a directed verdict of acquittal, is to ask whether he or she would themselves conclude that the accused is guilty, nor are they to draw factual inferences or assess credibility. They are to ask only whether the evidence, if believed, could reasonably support an inference of guilt.
78Unfortunately, while the preliminary inquiry judge did commit the co-accused to trial on the charge of first-degree murder, he also expressed his opinion on what the outcome should be, regrettably in my view: para. 11, above. This opinion is problematic because the preliminary inquiry judge had no jurisdiction to go beyond committing the accused to trial and in particular, had no right to express his opinion that if he had been presiding on their trial, he would have found them not guilty.
79The expression of that opinion is now advanced as a significant element in the defence argument that the Crown’s circumstantial evidence is weak, but under R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, it was not open to him to express that opinion. He ought not to have asked himself if he would conclude that the accused is guilty, or to have expressed his opinion on the strength of the factual inferences capable of being drawn, nor should he have commented on his assessment of the credibility or reliability of the witnesses. There was only one question to be asked and answered: whether the evidence, such as it is, with all its warts and gaps, whatever they may be, could reasonably support an inference of guilt if believed by the trier of fact. On that simple question, he did find that the evidence, if believed, could reasonably support an inference of guilt. That was all he was called upon to do and having reached that conclusion, he was functus officio.
80As the trial judge and the Court of Appeal emphasized, in a case of first-degree murder like this one, it remains the jury who is called upon to determine the facts, determine what inferences can reasonably be drawn from those facts, determine whether there is more than one reasonable inference that can be drawn from any particular fact, and at the end, determine whether or not the only reasonable inference to be drawn from the evidence as a whole is that the accused is guilty as charged. If there is more than one reasonable inference based on the totality of that evidence, then the jury must acquit. For these reasons, I put little stock in the opinion expressed by the preliminary inquiry judge that the accused ought to be found not guilty. It was not his jurisdiction, nor is it mine, to express that view.
81Inevitably, that leads to the question of what use I am permitted to make of the earlier findings at the preliminary inquiry hearing, at trial on the motion for a directed verdict, on the decision of the jury finding that both accused were guilty as charged, and on the recitation of facts that Brown J.A. enumerates in his appeal reasons?
82The findings of the preliminary inquiry judge on the conclusions and findings that would, or could, be available to the jury are set out at paras. 26-28, above. He committed the accused to trial. The findings of the trial judge made in dismissing the applicants’ motion for a directed verdict of acquittal are set out at paras. 21-26 of her ruling at para. 12, above.
83Jury secrecy prevents us from knowing what findings of fact the jury made in the course of reaching their verdict. All that can be said with certainty is that they necessarily made findings of fact that caused them to be satisfied that Crown counsel had proven the four elements of the offence beyond a reasonable doubt: that (i) Kawano, with Grant’s knowing assistance, committed the unlawful act of shooting Fedrick; (ii) that Kawano and Grant’s unlawful act caused Fedrick’s death; (iii) that Kawano and Grant had the intent required for murder; and (iv) that Kawano and Grant’s murder of Fedrick was both planned and deliberate. The jury could not have convicted the accused without making those findings.
84Finally, in his overview, at paras. 1-22, Brown J.A sets out the facts upon which the Court of Appeal’s decision is based, facts that he plainly found were available on the evidence, as set out above at para. 8 of these reasons. Brown J.A. found the trial judge had made an uncurable instructional error, but he was not not satisfied that the verdict against Grant was unreasonable. However, he directed new trials on the basis that the curative proviso could not save the verdicts.
85I take guidance from R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 85 in considering what use I am permitted to make of these earlier findings on this bail hearing. That was a case where Jaser sought a review of the decision of O’Marra J. denying him bail pending appeal. As the bail review judge, Doherty J.A. speaks to the relevance and use of the prior history of the case in assessing the strength of the Crown’s case.
86In the earlier conviction appeal in R. v. Esseghaier, 2019 ONCA 6728, new trials were ordered for Esseghaier and Jaser, after the jury’s verdicts of guilt against both were set aside and a new trial ordered. The trial judge in that case was initially found to have made an error in limiting the modes of jury selection that were available on the challenge for cause, prior to the 2019 amendments to the Code. In that case, as in the appeal from the verdict in this case, the Court of Appeal concluded that the curative proviso in s. 670 of the Code could not save the verdicts.
87However, the question here is not the scope of the curative provision. Rather, the question in Jaser is essentially the same question I face here: to what extent may the bail judge take account of the prior proceedings? As in Jaser, the assessments of fact or of the strength of the Crown’s case from the original trial and the appeal in this case are not determinative, but there is no doubt that I am entitled to take them into account for the purposes of assessing bail. At para 85, Doherty J.A. writes:
85 The applicant also submits the bail judge wrongly treated Jaser’s convictions as proof of the strength of the Crown’s case. The verdicts have been set aside and are obviously not determinative of the weight of the Crown’s case. Nor, however, was the bail judge required to ignore those verdicts. The jury heard a great deal of evidence. Jaser was fully and vigorously defended. There is nothing in the ground of appeal on which the appeal was allowed that would justify ignoring the verdicts of the jury for the purposes of assessing the strength of the Crown’s case: R. v. Esseghaier, 2019 ONCA 672 (Ont. S.C.J.) at para. 95. The bail judge was entitled to take the verdicts into account when assessing the apparent strength of the Crown’s case against Jaser. (Emphasis added)
88I note that there was nothing in the ground of appeal on which the appeal was allowed in Jaser that justified ignoring the verdicts of the jury for the purposes of assessing the strength of the Crown’s case: see Esseghaier, at para. 95. In this case, however, defence counsel claims that the error made by the trial judge in her instructions would justify totally ignoring the verdict of the jury for the purposes of assessing the strength of the Crown’s case. In her view, the evidence was weak to begin with and is even weaker now, because she suggests a properly instructed jury apprised of the special position of exculpatory defence evidence could not possibly convict.
89Defence counsel submitted that the fact of the conviction and any ability to rely on it as evidence of the strength of the Crown’s case is necessarily significantly weakened for three reasons: (i) that the jury was not properly instructed, (ii) that they would have had no basis in the absence of an instruction to consider the issue of the exculpatory identification evidence and its proper use, and (iii) because they were not given a correcting instruction on that issue.
90The defence position is these factors and para. 85 of Jaser work together on this bail hearing, to not only suggest but indeed direct that I ought not to place too much, if any, weight on the prior assessment of the Court of Appeal, or the prior conviction itself. While I am not required to ignore the verdict and am entitled to take it into account when assessing the apparent strength of the Crown’s case, even though it is not determinative, I am effectively urged not to take it into account at all. I am also urged to take little comfort or put little weight on the finding of the Court of Appeal that the jury’s verdict was not unreasonable.
91In para. 108, Brown J.A. recites principles that guide the determination of whether the verdict can be considered to be unreasonable. The question is whether the triers of fact, acting judicially, could have been satisfied in the face of a preponderance of circumstantial evidence, that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence, direct and circumstantial, including any potentially exculpatory evidence: R. v. McDonald, 2017 ONCA 568, 39 C.R. (7th) 344, at para. 136.
92I am directed to two particular factors that defence counsel claims require me, effectively, to entirely ignore the prior findings in this matter.
93First, defence counsel argues that I am not bound by Brown J.A.’s recitation of “facts” since they are not findings, but instead merely appellate observation that there was evidence present supporting the jury in having found facts that were capable, considered in their totality, of leading to a finding of guilt as the only reasonable inference. The recitation of “facts” in the Court of Appeal’s decision are not findings of fact, but rather represent Brown J.A.’s summary of the evidence and the available inferences and presumptions of facts that the jury would have to have found in order to have reached the conclusion they did.
94Second, defence counsel argues that the Court of Appeal’s finding that the verdict was not unreasonable should not play any part or be given any weight in my assessment of whether the Crown’s case was or is strong because the test for finding that a verdict is unreasonable is so high.
95I disagree and reject both arguments for several reasons.
96First, it is noteworthy and relevant to the question of the use and extent to which the jury’s verdict is relevant here, to consider the circumstances in which the trial judge was found to have erred in her instructions to the jury. The Court of Appeal found that she erred because she gave no instruction to the jury that the usual cautions that we instruct juries to apply in their consideration of eye-witness identification evidence, are not to be applied if the evidence is exculpatory.
97Importantly, however, while the trial judge did consider providing this kind of instruction but decided to use the usual caution, she could not have known that she ought to have given a specific instruction, as in Vassel, for the simple reason that at the time when the jury was instructed in this case, Vassel had not yet been decided. Neither counsel, nor the trial judge had the benefit of the decision in Vassel at the time that she was charging the jury in this case.
98However, defence counsel at trial did make an objection to the charge based on the Court of Appeal’s decision in R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 47 O.R. (3d) 66 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 419. Counsel submitted:
Your Honour gave a caution to the jury, which is entirely appropriate, about the question about identification evidence and using identification evidence and what have you, but if the evidence of identification exculpates the defence, then it is not subject to the similar charge.
[T]he first thing it would be my submission Your Honour should say to the jury is that to the extent that eyewitness identification is exculpatory is not subject to the same caution that you would have for anything that might benefit the Crown. [Emphasis added.]
99Crown counsel took the position that the instruction that had been given was adequate, and need not be changed based upon two other paragraphs in Wristen that seemed arguably to support that view. In the result, no further instruction was given, so as the Court of Appeal found, the convictions could not stand because no updated instructions were given relative to the exculpatory eyewitness identification evidence, in this case relating specifically to Kamkin’s evidence.
100In my view, that deficiency does not necessarily affect the strength of the Crown’s case. On its own, it does not materially change the degree to which the former conclusions and verdict can be considered by me, but it certainly does not mandate that the prior findings and verdict ought to be ignored. The extent of that error does not undermine the entirety of the Crown’s case to the extent contended by the defence and it does nothing to weaken the case presented by the Crown, or the evidence at the first trial, that is the same evidence that will be introduced on the second trial.
101The evidence remains identical. The circumstantial evidence to be introduced on the second trial is and will be the same evidence that was introduced on the first trial. Its strength or weakness is to be determined by the jury but in my view, the strength of that evidence remains essentially the same.
102What a corrected instruction will do is instruct the jury in a different way how they may and may not use that evidence and will specifically remove the warning to the jury to be cautious of identification evidence which is exculpatory.
103Looked at in this way, the question is not one of whether the Crown’s case is “weaker” from an evidential perspective. Subject to any changes in the testimony of the other eyewitnesses, it seems to me it will essentially be exactly the same case that will be put to the jury. That follows especially in relation to the exculpatory eyewitness identification evidence of Kamkin because he is now deceased and it is his preliminary inquiry evidence that the Crown will introduce on the second trial, as it was on the first. The question becomes whether the value of Kamkin’s unchangeable evidence will change when subjected to a correct instruction. The jury may find, once so instructed, that its exculpatory nature changes the findings that are capable of being made at the second trial as compared to the first, or it may not.
104The point about Kamkin’s evidence is that it directly contradicts the Crown’s theory that Kawano was the shooter, and that Grant was there with him but was not the shooter. In light of that fact, and assuming as we do that the jury followed the trial judge’s instruction and considered that evidence cautiously, the question becomes whether a changed instruction emphasizing the exculpatory aspects of that evidence would have, or will change the jury’s view of the entire constellation of evidence taken as a whole. It seems to me that it may, or it may not, but it is certainly not intuitive that it must necessarily change the result.
105The reason is simple. The jury may or may not have accepted Kamkin’s evidence. We do not and cannot know that. It was open to them to accept some, all, or none of his evidence, as with any witness. If the jury accepted Kamkin’s identification evidence per se, then it may well be that the replacement of a defective instruction with the correct instruction would be enough to cause the triers to have the reasonable doubt they did not have on the first trial. On the other hand, the triers may accept the descriptions of the two individuals, Baseball Hat and Scarfman, but conclude that Kamkin was mistaken on which of those two was the shooter, having regard to the evidence of the other witness and the entirety of the evidence
106In my view, I need go no further than this. It is not open to me to give a view of what the result may be on this re-trial, nor, in my view, is it reasonable or realistic in the face of the fact of the committal, the dismissal of the motion for a directed verdict, the conviction itself, and the Court of Appeal’s recitation of presumed facts in its decision, to conclude that the need for a changed instruction changes the strength of the Crown’s case in any material way. I note in particular that the need for the proposed changed, now exculpatory instruction, would have had no impact whatsoever on the proceedings below, until the jury was charged and sent to deliberate.
107Again, the reason is simple. The question is not would or should they convict, but is instead whether the triers of fact, acting judicially, could have been satisfied in this specific case with its substantial component of circumstantial evidence, and the direct evidence of the witnesses that they accepted, that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence, including the potentially exculpatory evidence of Kamkin.
108There is one other point I would note in concluding on this question, which I find causes this situation to be very different from most bail hearings. Justice Wagner, referring to Trotter J.A. at para. 57 of St-Cloud, notes the flexibility and potential change in the strength of the Crown’s case in a typical bail application, but I find the situation is very different than on this application.
109Here, we have not engaged in a quick summary type proceeding based on a synopsis of assumed facts, at a stage when disclosure is not complete and a realistic assessment of the strength of the Crown’s case may indeed change as that process continues, through the preliminary inquiry. The circumstance is different here. This hearing was conducted over three days, not over a couple hours or a morning, and it had the virtual entirety of the evidence from trial before me in the form of the transcripts of the evidence at trial, and the video and telephone evidence.
110In my view, this is not a case where the strength of the Crown’s case will likely change one iota. The only thing that may change is the result depending upon the trier’s consideration of the defence exculpatory identification evidence within the context of a corrected instruction on how the jury may and may not use that evidence. As a result of all of these factors, contrary to the suggestion that I ought to put no weight on the prior assessment of the Court of Appeal or the prior conviction, in my view, looking at the matter as a whole, there is no reason not to continue to consider this to be a strong Crown case, and I see no basis for me to conclude that a new jury would necessarily take any different view of the circumstantial evidence. From a circumstantial perspective, I agree with McWatt J. and Brown J.A. that the case is strong.
111I conclude on this point by returning to Brown J.A.’s summary in the Court of Appeal’s reasons, at para. 18 above. He outlines the series of findings that the jury “could reasonably have made” leading to their findings of guilt. He then admonishes that since they are the triers of fact, and since those findings could reasonably have been made, one cannot conclude that no properly instructed jury, acting judicially, could reasonably have rendered that verdict finding Grant guilty of first-degree murder.
112It seems most likely to me that the lynchpin is Kamkin’s evidence, what the jury decides to make of it and what they decide in the context of the evidence of the other witnesses, and what they may find are reasonable inferences arising out of it, assuming they accept all, or at least part of his evidence, and are properly instructed about how to consider that evidence. This, of course, is within the context of the entirety of the evidence, including the circumstantial evidence.
113Based upon all these factors, I conclude that the Crown’s case does remain as strong now as it was leading into the trial. Despite the unfortunate opinion of the preliminary inquiry judge that he would have acquitted the accused, the trial judge found that the Crown's case is a strong circumstantial case in dismissing the defence motion for a directed verdict of acquittal at the end of the Crown’s case. She did not say they would be convicted but left it to the jury to decide the issue of culpability. She found only that it contains sufficient evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.
114Notwithstanding lengthy deliberations by the jury and the need to have some of the central evidence replayed, that body of evidence proved strong enough at that time to persuade the jury, as a whole, that the case for first-degree murder against both accused in this case was made out beyond a reasonable doubt. Despite the efforts of defence counsel, I am not persuaded that I should consider the Crown’s case to be “weak” in the context of considering whether Grant ought to be detained under the tertiary ground.
115As with the evidence of all witnesses, the jury must be instructed how to assess the evidence itself for credibility and reliability. They must be reminded that they can choose to accept some, all or none of the witnesses’ testimony, and some of the factors that will assist them in making that determination. But if, and once a jury has decided to accept all or part of a witnesses’ evidence as favourable to and exculpatory to the defence, then there is no need for them to exercise caution about its use. The question in that circumstance will be whether that exculpatory evidence which they have accepted, taken together with the entirety of the evidence, as accepted, leaves them with a reasonable doubt or does not.
116Consequently, in a case like this where the rule in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 is not engaged because the accused chose not to testify, where the eyewitness evidence, if accepted, tends to exculpate the accused, then the traditional cautionary instruction regarding eyewitness identification evidence should be avoided. It should be avoided because there is no risk in such cases of a wrongful conviction, and under our law, there is no such thing as a wrongful acquittal.
117The exculpatory evidence could leave the jury with a reasonable doubt about the culpability of the accused. That explains why a cautionary instruction is entirely inappropriate. The simple reason is that by giving a cautionary instruction relative to the jury’s ability to use such evidence in any way, could leave the jury with either an erroneous impression about the quality of evidence, or suggest caution to them, when the quality of the evidence would otherwise leave them with a reasonable doubt: Wristen, at para. 46; Vassel, at para. 188.
118I find that all four factors in s. 515(10)(c) of the Code are fully engaged. They are fully engaged even though the trial judge did not specifically instruct the jury post-Wristen and pre- Vassel that they did not need to approach Kamkin’s exculpatory eyewitness evidence with caution. The cautionary instruction is premised upon the fear of wrongful convictions that can result where inculpatory identification evidence of witnesses is not approached with caution. However, the risk of a wrongful conviction is not present when the evidence under consideration is exculpatory rather than inculpatory. None of this analysis, however, takes away, from whatever the evidential components are of the Crown’s case, and their strength. Since I have found that the evidence would continue to suggest a strong case in favour of the Crown, these factors strongly favour the continuing detention of the accused.
(ii) Other circumstances
(a) Section 493.2 of the Code
119An additional factor that I am required to consider is that Grant is a member of a disadvantaged community which is overrepresented in the pre-trial detention population. Typically, as years of experience sadly shows, members of the Black, and other visible minority populations have experienced greater difficulties than many others in obtaining judicial interim release.
120Section 493.2 of the Code was enacted in 2017. It applies on bail hearings like this one, and it states as follows:
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
121This is a provision that applies to Grant. That is undeniable having regard to the Court of Appeal’s decision in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641. There, in the opening paragraph, Tulloch J.A (as he then was), gave a strong and clear admonition from a five-member panel of the Court against systemic racism as follows:
1 It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89–97; R. v. Theriault, 2021 ONCA 517, at para. 212, leave to appeal to S.C.C. requested, 39768 (July 19, 2021); R. v. Parks(1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing.
122Defence counsel invited me to infer from Grant’s misconduct record that he has experienced systemic racism, on the basis that some misconducts that appeared to be of the same nature were considered serious, while others were considered minor.
123First, in my view it is speculative and conclusory to say that some misconducts being treated more seriously than others is evidence of systemic racism on the part of the corrections officials who regarded the misconducts more seriously. I have no evidence before me on the issue at all, no evidence that supports that defence suggestion.
124As in Morris, we can, and must all acknowledge and understand that there plainly is systemic racism in Canada, in Toronto, in the criminal justice system, including within pre-trial detention and other correctional facilities. Anybody who does not accept this reality must either be suspect themselves, or has lived in a cave with no exposure to the news of Canada and the rest of the world, or has paid no attention to the interaction of minority communities, particularly the Black community, with white society in Canada, or with its interaction with police and other regulatory authorities.
125Nevertheless, there is no evidence before me about how that acknowledged systemic racism specifically impacts or has affected Grant. There is no evidence to support the suggestion that his discipline record demonstrates systemic racism. What Grant’s institutional record does demonstrate, however, is that he has a history of non-compliance with the rules of the corrections and detention facilities where he has lived, but in my view, defence counsel’s efforts justify his failure to comply while in custody on a very general assertion of systemic racism is simply unsupported speculation.
126There is no evidence before me of the specific impacts or of any specific incidents that would permit me to conclude that Grant has been a particular target of racism. Grant has had the many years of his incarceration to prepare or gather such information. I have previously discussed the difficulty of Grant’s failure to file an affidavit on this application, but if he intended to rely on specific allegations of racism, that was all the more reason why he could and should have provided an affidavit outlining any allegations of systemic racism particular to him. He has declined to do so. This reality impacts on the extent to which the considerations in ss. 493.1 and 493.2 of the Code can be given anything more than generic weight in Grant’s case.
127Section 493.1 relates to release at the earliest opportunity. It is meant to apply more in the context of the need for a bail hearing to occur very shortly on the heels of a charge being laid. However, this is not a bail hearing that is arising in that context, but rather of Grant having served time in detention pending his first trial. He spent his entire pre-trial time in detention awaiting his first trial, because no suitable plan of release was possible. Then, since his conviction, he has been incarcerated in a federal correctional facility serving his sentence as imposed following the first trial. But now, because of the re-trial being ordered, he is back into the detention center setting and awaiting a new trial. In that long context, it is difficult to see how s. 493.1 applies to call for release at the earliest opportunity. That was in 2015, not now.
128Tied into this is the so-called principle of “risk aversion.” I accept the Crown’s position that there is little scope for that principle to operate in circumstances like these. The concept, as described in R. v. Tunney, 2018 ONSC 961, 44 C.R. (7th) 221 and R. v. Zora, 2020 SCC 14, 63 C.R. (7th) 247, is not applicable in the context of this obviously carefully thought out and frankly lengthy three-day bail hearing. This application for judicial interim release has not been squeezed into an otherwise crowded court schedule shortly after the accused were charged. Tunney and Zora speak to overreaching bail terms based on excessive concerns about risk aversion, but the context behind those cases is simply not comparable to this case. There is no overreaching on proposed bail conditions here, or in an attempt to make bail impossible for Grant to achieve. Here, the considerations are quite different.
129So, as I have indicated, I see no scope here for the application of s. 493.1, but s. 493.2 is a relevant factor for consideration. The difficulty is that it cannot be given fuller, more specific consideration without fuller more specific evidence from Grant nor, as Morris notes at paras. 4 and 5, can the impact of systemic racism on Grant be assessed in an evidentiary vacuum:
4 The Crown seeks leave to appeal the sentence imposed. The Crown contends the sentence is manifestly unfit and the trial judge made several material errors in his reasons, particularly in his treatment of the evidence led by Mr. Morris concerning the impact of overt and institutional anti-Black racism. The Crown argues that the decisions of this court in R. v. Borde(2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), and R. v. Hamilton(2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), remain good law. These cases acknowledge that an offender’s personal circumstances, including those tied to overt and institutional racism and its multi-faceted effects, can be relevant in determining an appropriate sentence. Their ultimate impact on the sentencing process will, as with other facts relevant to sentencing, depend on the specifics of the individual case.
5 Crown counsel acknowledges the reality of overt and institutional racism and its negative impact, particularly within the criminal justice system. Crown counsel accepts that the courts, and in particular trial judges, must frankly acknowledge that reality and take it into account within the sentencing scheme set out by Parliament.
130Since Grant has not provided any evidence that relates to his particular circumstances as a member of a racially disadvantaged group, then I am regrettably left simply with the generalities as they have been described in other cases. I must, and have still considered the matter and those generic circumstances. However, without evidence from Grant about particulars, about how he has personally been impacted by systemic racism, then any conclusions drawn beyond the generic would be pure speculation in light of the fact that there are no specifics before me. I have no evidence about any particular racially motivated conduct towards him, beyond defence counsel’s speculative suggestions, and so there is nothing to either explain or excuse Grant’s numerous misconducts, some of which are obviously much more serious than others.
(b) Covid 19
131Neither of the parties on this application made much of an issue about COVID-19.
Defence counsel argued that to the extent the Crown is urging the Court to rely on COVID-19 related authorities from 2020, which was early in the pandemic, and early in the state of scientific knowledge about the virus, those comments are now shown to no longer be valid. Scientific knowledge about this virus has evolved a great distance from what was known in 2020. It is now know the virus is airborne; that it infects and can devastate anyone, regardless of their age or health, that it is a vascular disease that damages the immune system, and not only a respiratory disease. Defence counsel seemed to suggest that Crown counsel was relying on dated data and saying that even if there is COVID-19 in the jail, Grant is not at risk because he is young and because there is no evidence that he has any pre-existing condition.
132Defence counsel put these submissions forward and noted the inaccuracy of that now almost ancient data, allegedly in response to the position of the Crown and her alleged focus on COVID-19. To my recollection, however, and as the transcripts show, Crown counsel did not address or focus on COVID-19 in any particularity, at least as I recall counsel’s submissions.
133Crown counsel did draw my attention to the particular informational note on COVID-19 dated November 3, 2022, a continuing update published regularly by Ontario correctional authorities, that is the most recent update available for this hearing. There is no evidence, however, that Grant himself is at particular risk for COVID-19 any more or less than any other member of the prison inmate population who has no particular or inordinate risk exposure. Grant is a young man and there is no evidence about any health issues that would make him particularly vulnerable.
134In any event, the preponderance of case law that has developed over the past three years since the pandemic commenced in March of 2020, shows that the COVID-19 issue is not, itself, a game changer. Instead, the appellate jurisprudence in this province, particularly the R. v. Stone, 2020 ONCA 448 case from the Court of Appeal did say in para. 14 that “the current COVID-19 pandemic is a factor that is to be considered in assessing the public interest criterion.” However, it is plainly not determinative, or a so-called “Get Out of Jail Free” card.
Conclusion
135I have considered all these factors and circumstances relative to the secondary and the tertiary grounds, and the other circumstances present here, and in particular to the extent and with the detail that I have, in response to the extensive three days of extensive and thoughtful submissions of both counsel on this application. I find at the end of the analysis, however, that in addition to failing to discharge his onus on the secondary ground, the accused has also not discharged his onus to demonstrate under the tertiary ground that his continuing detention is not required to maintain confidence in the administration of justice, having regard to all the circumstances.
136For all of these reasons, I have concluded that Grant’s continuing detention is required under both the secondary and the tertiary grounds. The application is dismissed.
Michael G. Quigley J.
Released: January 17, 2023
Footnotes
- I mean no disrespect to any of the characters in this saga of street violence and revenge but have adopted the stylistic convention of referring to the accused by their last names, or in Grant’s case, sometimes as “the Applicant” or “the accused”, for ease of reading.
- Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”).
- The paragraph numbering is as in the reasons of the Court of Appeal.
- I do not review the witnesses’ evidence as Brown J.A. did. It will suffice for the purposes of this application to acknowledge several aspects of the eyewitness evidence of Kamkin. First, Kamkin’s evidence consists of the transcript of his evidence from the preliminary inquiry, because, sadly, he passed away from a fentanyl overdose before the trial. As such, his evidence will be exactly the same on this trial as it was on the first. Second, without getting into the detail, it will suffice to say that the position of the defence was that the person described as the shooter could not possibly have been Kawano because Kamkin’s description of the shooter bears no resemblance to what Kawano wore that evening and was more consistent with the identification of Grant than of Kawano. Finally, it is the defence position that because of that discrepancy, if the jury accepts Kamkin’s evidence then both accused must be acquitted because there would be no basis to conclude that the only reasonable inference capable of being drawn is that Kawano was the shooter.
- See also R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42; R. v. Smith, 2016 ONCA 25, 345 O.A.C. 65.
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
- Under the remaining terms, he would be required (i) to obey the rules of the household; (ii) to remain in the residence at all times unless he is accompanied by and in the presence of one of his sureties; (iii) to not communicate directly or indirectly with Shaqwan Kawano or any Crown witnesses; (iv) to not possess any weapons as defined by the Criminal Code; to not apply for or possess a Firearm Acquisition Certificate or Firearms License; (v) to remain in custody until a GPS monitoring device is available to placed on his person and applied; and (vi) to be subject to GPS monitoring by Recovery Science Corporation (RSC); and (vii) and any other condition that the Court deems appropriate.
- 2019 ONCA 672, 57 C.R. (7th) 388, rev’d on other grounds, 2021 SCC 9, 454 D.L.R. (4th) 179.