Ontario Superior Court of Justice

Court File No.: CR-25-001010-00BR
Date: 2025-03-03

BETWEEN:
His Majesty the King
– and –
Martin Duah

Sandra Duffey, for the Crown
Alison Craig, for the Applicant

Heard: February 21, 2025
Rhinelander, J.

Reasons for Decision

Overview

[1] Mr. Martin Duah brought an application pursuant to s. 520(1) of the Criminal Code seeking a review of his detention. A review under this section is appropriate if:
i) the original presiding justice erred in law;
ii) the decision is clearly inappropriate; or
iii) there has been a material and relevant change in the circumstances of the case.

[2] The Applicant asserts His Worship Justice of the Peace Robinson
i) erred in law in his application of s. 492.3 of the Criminal Code;
ii) failed to provide sufficient reasons for an appellate review including insufficient reasons for not accepting two of the proposed sureties, to address the overall plan of release and the strength of the Crown’s case; and
iii) there is a material change in circumstances warranting a review of his detention.

[3] The Applicant relied on his notice of application, his affidavit, affidavits from three proposed sureties, and a transcript of the initial bail hearing.

[4] The Crown argued the Applicant failed to establish the proposed fresh evidence meets the test for a material change in circumstances as set out in R. v. St-Cloud, 2015 SCC 27, and there was no error in law in Justice of the Peace Robinson’s decision.

[5] The Crown relied upon its response to the application including a comprehensive synopsis, the criminal (youth) record of the Applicant, synopses or occurrences regarding entries on the record, and previous predisposition reports relied upon at the initial bail hearing, and the cross-examination of the three proposed sureties.

[6] For reasons that follow, I am satisfied there has been a material change in circumstances warranting a review of the Applicant’s detention. Since the Applicant and one of his proposed sureties share a surname, I refer to each of them by their first name in some places for the sake of clarity.

Background

[7] The Applicant was arrested and charged May 17, 2024, with kidnapping, forcible confinement, break and enter x3, and possession of property obtained by crime. A contested bail hearing was held on June 13, 2024, where he was detained by His Worship Justice of the Peace D. Robinson on the secondary and tertiary grounds. The onus was on the Crown to establish the basis for his detention.

[8] On May 16, 2024, police were contacted regarding a kidnapping that was caught on video in the rear parking lot of a business located at 4478 Chesswood Avenue, Toronto. The complainant is observed arriving in his vehicle, a black BMW X6. A white van pulled up next to the vehicle and six individuals wearing dark clothes, masks, and gloves, rushed out of the van towards the complainant. The individuals are seen forcing him into the van.

[9] One of the individuals was wearing bright blue underwear clearly visible in the video. This person was seen entering the driver’s seat of the complainant’s car. Both vehicles left the area. A friend of the complainant’s attempted to follow the van but was blocked by another vehicle seen in the parking lot at the time the complainant was abducted.

[10] Two minutes before midnight, the complainant’s business partner received a notification from a security company that an alarm had been triggered at one of three cannabis stores he jointly owns with the complainant. A review of the cameras showed two individuals wearing masks inside the store. One of whom had bright blue underwear clearly visible. This male was described as male, black, approximately 25 years old, wearing a black hoodie with a skyline detail on the front, black face mask, black gloves, black pants, and black shoes.

[11] Another break-in occurred at a second cannabis store owned by the complainant and his partner. CCTV footage seized by police from both locations showed two black males accessing the store with a key obtained from a lock box affixed to the door. The lock box was accessed by the person believed to be Martin Duah. Nothing was removed from the first store, however, the person believed to be the Applicant is seen taking a safe and money from the second location.

[12] In anticipation that the remaining store may be targeted, police set up surveillance in the area. At approximately 1:30 a.m. the Applicant and a co-accused were arrested attempting to break into the third store. At the time of the Applicant’s arrest, he was wearing blue underwear consistent with the CCTV footage from the two earlier break-ins and the kidnapping of the complainant. He was also wearing clothing observed on the video footage.

[13] The complainant was released later in the day on May 17, 2024, after the Applicant’s arrest. The white van used to abduct the complainant was found burnt later that evening.

[14] The plan of release proffered at the initial hearing included house arrest with GPS monitoring and three proposed sureties: Mansa Duah, his mother; Kevin Duah (“Kevin”), his brother; and Brandon Ihanza, a family friend. It was proposed his mother would be the primary surety with Kevin and Brandon Ihanza assisting.

[15] Mansa Duah was deemed unsuitable as a surety. The Applicant had amassed several breaches of court orders where she was the surety. The Court stated, “over the past few years, she has not been able to exercise control over him whatsoever” and the Applicant has very little respect for his mother or her advice. The Court was not satisfied Kevin would be able to exert any authority or control over his brother and Mr. Ihanza did not add much to the plan of supervision due to where he lived.

[16] Ultimately, the Court found the Applicant had failed to meet his onus and detained him on the secondary and tertiary grounds.

Basis for Review

Errors in Law

i) Section 493.2

[17] Section 493.2 of the Criminal Code requires courts determining bail to "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."

[18] The purpose of this section is to address the overrepresentation of certain populations in the criminal justice system, specifically the overuse of custody pending a disposition of charges. The section, remedial in nature, addresses the need to consider the circumstances of Indigenous persons, but also other racialized individuals, including those who are black, who have historically been disadvantaged and over-represented before the courts and in custody. The section does not set a limitation as to its applicability or uses. It requires each court on every occasion to consider the circumstances of individuals who are a) Indigenous or b) belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part. [emphasis added]

[19] In R. v. E.B., 2020 ONSC 4383, para 42 Shreck, J. held:

While s. 493.2 requires the court to consider the circumstances of Indigenous accused and members of vulnerable groups, it does not supersede s. 515(10). What this means is that regardless of the accused's circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released. If there is a substantial likelihood that the accused will commit further offences if released and thereby compromise public safety, the fact that systemic or background factors contributed to that substantial likelihood does not change the result. A dangerous person is no less dangerous because he or she is a member of a vulnerable group: R. v. Sim, para 18.

[20] The evidence before His Worship is the same information before this Court. The Applicant is a young black male who grew up in the Jane/Finch corridor raised by a single mother who lived in subsidized housing. His father was involved in criminal activities, had been to jail, and was deported when the Applicant was young. The Applicant has been in and out of trouble as a youth. While in high school, he witnessed a friend get stabbed, and lost another peer to a shooting. The death of his friend appeared to be a factor in his first foray into the criminal justice system with the purchase of a firearm for protection. It is this very upbringing that forms part of the circumstances the court is required to consider.

[21] It is agreed by both parties that the Justice of the Peace improperly stated that section 493.2 of the Criminal Code did not apply to the Applicant. His Worship stated, “he has had chances to show that he can abide by the rules of society and has not been able to take advantage of the opportunities”. Having reviewed the entirety of the evidence before His Worship, I have determined the Court did consider the Applicant’s background factors but stated the section did not apply to the Applicant based on the second component of s. 493.2(b), that reads, “and that is disadvantaged in obtaining release under this Part.” His Worship found the Applicant was not disadvantaged as he had obtained releases in the past but chose not to abide by the orders.

[22] In considering s. 493.2, the Court conducted an individual assessment as required, but was not satisfied the Applicant could be released based on his findings on the secondary and tertiary grounds when considered in the context of his entire ruling.

ii) Insufficient Reasons for an Appellate Review

[23] The Court’s reasons for the detention order were approximately three pages but provided sufficient context to understand the basis of his decision and his concerns regarding the proposed sureties and the plan of release.

[24] The Court was not satisfied Kevin could exert any sort of authority or control over the Applicant. Kevin is the younger sibling and evidence was before the Court that the Applicant did not view their relationship as being close. When questioned on this, Kevin ultimately agreed he misled the court to give the impression they always got along. The Court was also concerned the Applicant would not abide by any conditions ordered.

[25] In terms of Mr. Ihanza, the Court did not see much being offered in the way of supervision due to the distance from his residence to that proposed for the Applicant.

[26] Overall, the lower Court was not satisfied that the Applicant could be adequately supervised and that if released, the Applicant would abide by any court order.

[27] In determining the Applicant’s detention was warranted on the tertiary ground, the Court commented on the accused being identified. The comprehensive synopsis placed before this court was before the lower court. On its face, there is a strong Crown case on all counts. It would have been preferable if the Court had expanded on what was meant by the “accused identified” however, a strong inference is available based on the snapshots from the video footage obtained from the CCTV cameras regarding each of the offences, including the kidnapping, the circumstantial evidence available, and the inferences that may be drawn.

[28] I am not satisfied the lower court made errors in law or that the decision was inappropriate.

Material Change in Circumstances

[29] Mr. Duah’s initial application for bail included the following plan:

• Three sureties: his mother, brother, and friend
• Reside with his mother and brother at 415 Driftwood Avenue
• 24/7 house arrest and/or a curfew
• GPS monitoring

[30] Mr. Duah’s proposed terms of release on this application are as follows:

• Addition of a new surety: Sabrina Carpino
• Two previously proposed sureties: Kevin Duah and Brandon Ihanza
• Reside with Kevin Duah and Brandon Ihanza at 1503-60 Honeycrisp Crescent, Vaughan
• House arrest unless in company of one of the three sureties
• Install cameras to record entrance/exit of the apartment which are accessible via a cell phone
• Remove door to Martin Duah’s bedroom
• 24/7 supervision by Kevin Duah
• GPS monitoring

[31] I am satisfied the proposal is not a mere “reshuffling of the deck” by substituting or changing a surety. There are other steps that have been taken to address concerns expressed by the Court. With the proposed modifications to the release plan there is a material change in circumstances warranting a de novo consideration of the Applicant’s bail.

Summary of the Evidence

Evidence of Kevin Duah

Kevin Duah provided an affidavit sworn January 22, 2025, and viva voce evidence regarding the plan of release for his brother, which included steps taken to address concerns expressed at the initial bail hearing. In addition to this evidence, the testimony from that hearing was also before the court.

[32] Kevin secured a new apartment away from the Driftwood address for himself, the Applicant, and Mr. Ihanza. The Applicant would be subject to full house arrest and only permitted to leave the unit with one of the three proposed sureties. Arrangements were made to ensure the Applicant will never be left alone without supervision. In addition to the 24/7 supervision, the Applicant would be subject to GPS monitoring.

[33] Kevin advised the Applicant will not be allowed to have any visitors unless approved in advance, and he will check his brother’s clothing and pockets. Kevin has taken other measures to ensure his plan is foolproof by purchasing cameras to be installed at the front door that also serve as motion detectors that send notifications. The sureties will all have access to the cameras remotely on their cell phones.

[34] Kevin spoke about his relationship with the Applicant and that the Applicant respects and trusts Kevin. He is confident the Applicant would not betray his trust because he values their relationship.

[35] Kevin is prepared to pledge $5,000 cash to secure his brother’s release.

[36] Kevin testified a camera is set up at the front door so he will know who is entering and leaving. He has also installed a camera in the Applicant’s room so he will know what the Applicant is doing. There is also no door to the Applicant’s room.

[37] Kevin was cross-examined by the Crown and confirmed he is currently living at 60 Honeycrisp in Vaughan with Brandon Ihanza. Kevin signed the lease and confirmed Mr. Ihanza is named on the lease. Kevin moved into the unit on January 21, 2025.

[38] Kevin described the unit as a two bedroom. The bedrooms will be occupied by himself and the Applicant. Mr. Ihanza will be taking the living space with a futon bed.

[39] Kevin was questioned extensively regarding his relationship with Mr. Ihanza and the decision to move in together. He confirmed he knows Mr. Ihanza as a friend of the Applicant. Prior to moving in together, he would see Mr. Ihanza twice a month when Kevin would help and volunteer where Mr. Ihanza was coaching. The decision to move in together was premised on the bail plan in anticipation of the Applicant’s release.

[40] It was confirmed the cameras have not been installed but have been purchased. Kevin showed the court where the camera monitoring the front door will be installed.

[41] In response to questions from the Crown, Kevin advised he has spoken to his boss and arranged to be laid off so he can be with the Applicant 24/7. Kevin is employed as a plumbing apprentice. When asked how he planned to support himself and the Applicant, he advised, his mother and his girlfriend will be supporting him financially by providing $500 each per month. Also, his girlfriend’s family have an online business and he will do that and help manage it.

[42] The rent for the unit is $2,500 per month plus utilities, which is approximately $3,000. The rent is paid by Kevin and Mr. Ihanza. Kevin has a year’s worth of rent saved. When asked how much savings, he indicated he had saved approximately $35,000. This included the $5,000 cash deposit he was prepared to pledge for his brother’s release.

[43] Kevin confirmed his mother is still living on Driftwood alone and he no longer provides her with financial assistance as she recently secured a job.

[44] In later questions, Kevin agreed he intends to be laid off for the duration of the bail. Also, as part of a union, while laid off he will be able to collect Employment Insurance and will work online with his girlfriend’s family.

[45] Kevin expects Mr. Ihanza to assist in supervising the Applicant. Kevin suggested that Mr. Ihanza can take the Applicant with him when he conducts personal training or when coaching his football teams.

Evidence of Brandon Ihanza

[46] As with Kevin, Mr. Ihanza provided an affidavit and viva voce evidence regarding the plan of release, including his testimony from the initial bail hearing.

[47] Mr. Ihanza is a friend of the Applicant and proffered himself as a surety in hopes of securing Martin’s release. He has known the Applicant and his family for approximately ten years through his younger brother, who is friends with the Applicant.

[48] According to Mr. Ihanza’s affidavit sworn January 23, 2025, he resides in Georgetown with his mother, brother, and two sisters. He is 28 years old.

[49] He currently works as a personal trainer and football coach. Due to the nature of his work, his hours are variable, and he can adjust his schedule to assist in the supervision of the Applicant. Mr. Ihanza has two degrees, played pro sports, and mentors youth. He believes he can be a positive role model and influence on the Applicant.

[50] If the Applicant is released, he would live with Kevin and Mr. Ihanza. The plan requires the Applicant to be subject to house arrest and only able to leave the home in the company of one of the sureties. Mr. Ihanza swore all three sureties have spoken and are confident they can ensure one of them is always with the Applicant even when at home.

[51] In addition to house arrest, Kevin has installed security cameras at the apartment that all three sureties will have access to on their cell phones. This will allow Mr. Ihanza to check in on the Applicant anytime day or night if he is not home.

[52] In cross-examination, Mr. Ihanza confirmed he is currently living at Honeycrisp Crescent. He moved into 60 Honeycrisp a few months ago when discussing the plan. He was unsure of the exact date. While answering this question, Mr. Ihanza was looking at something to his right. He then shifted his answer to say he just started moving in there about a month or two ago. He is on the living room futon, Kevin is in one bedroom and when Martin gets out, he will be in the other bedroom.

[53] While answering questions about the housing situation, someone appeared at the door and Mr. Ihanza told them to be quiet. Mr. Ihanza was asked questions about his whereabouts and says he is at a gym in Georgetown, and he is in the bathroom. A single bathtub showerhead is clearly visible behind him, with a shower curtain hanging from a rod, like what is in a home.

[54] Mr. Ihanza explained his current work schedule. He has recently started a community football program in Toronto that has U12, U15, and U18 teams. The teams practice on Sundays between 2 to 4. Since deciding to build the program, he maintains no more than three clients for personal training with two-hour sessions for six hours a week or a total of nine sessions. The rest of the time he has focussed on the football team though phone calls and emails. He likes to do that stuff from the comfort of his home. Mr. Ihanza trains the team – he is the head coach and general manager. He is exploring connections with prep schools and universities to assist the older players with scholarships.

[55] Mr. Ihanza was asked whether Kevin was involved in the football team. Mr. Ihanza replied it is a community team and he lets everyone come. He believes Kevin was at the first tryout which was held in December 2024. Due to the volume of people showing up, he can’t specifically say or remember whether Kevin has been there since.

[56] Mr. Ihanza explained that Kevin would be taking a leave from work to supervise the Applicant. He was also prepared to bring the Applicant to help with the football practices.

[57] Mr. Ihanza was asked about Ms. Carpino and her role in the release plan. He told the court he does not really know her, and he has “no real need to speak with Martin’s ex-girlfriend’s mother”. His discussions were primarily with the Applicant’s lawyer and Kevin. He was unsure what Ms. Carpino’s role would be on a day-to-day basis. He thought maybe she might watch the cameras.

[58] Mr. Ihanza, when asked how much he was pledging as a surety, replied “I’m pretty sure it’s $5,000”. He has faith in the Applicant and is prepared to put his money where his mouth is.

Evidence of Sabrina Carpino

[59] Sabrina Carpino is 44 years old and resides in the Don Mills/Lawrence Avenue area of Toronto. She has known the Applicant for approximately four years as he previously dated her daughter. During that time, she would regularly see the Applicant between three to four times a week. The Applicant’s relationship with her daughter ended shortly before his arrest.

[60] Ms. Carpino advised the Applicant worked in the music industry and focussed on urban hiphop. She was unsure what record label he worked for but that he posted through Spotify and YouTube. His music required him to travel and believed that was in late 2023.

[61] Ms. Carpino is a real estate developer. She works approximately 40 to 50 hours a week, but the hours are flexible. She is often required to be in Mississauga or at Avenue Road and St. Clair Avenue.

[62] She is aware the proposed plan of release includes the Applicant living with his brother, Kevin, and Brandon Ihanza. She has not met Mr. Ihanza before but is comfortable with the plan of supervision including the camera that can be accessed online when off site to check on the Applicant.

[63] Ms. Carpino is vaguely aware of the Applicant’s youth record from discussions with her daughter. More importantly she is aware he had been found guilty for having possessed firearms in the past. She attributes his youth record to his upbringing and sees the positive in the Applicant. She believes she can have a positive influence on the Applicant, and he would respect her and abide by terms of his release.

[64] Ms. Carpino intends to see the Applicant five days a week. The distance between their homes is approximately thirty minutes by car.

[65] Ms. Carpino understands the role and responsibility of being a surety and is prepared to pledge $2,500 to secure the release of the Applicant.

Position of the Parties

[66] The Defence submits the Applicant has met his onus on the secondary and tertiary grounds with the new plan of release. It addresses the supervision concerns which formed the basis for his detention.

[67] The Crown argued the Applicant failed to meet his onus for why he should be released. The Applicant should be detained on the secondary and tertiary grounds. The Crown advanced no argument on the primary grounds.

[68] She requested the court consider the feasibility of the plan and the reliability of the proposed sureties. The plan requires Kevin to leave his employment and rely on others for financial support while he supervises the Applicant. The sustainability of this is unrealistic. Also, the idea the Applicant could assist Mr. Ihanza with the youth football team needs to be rethought because of the Applicant’s prior criminal antecedents.

[69] In assessing the credibility of the sureties, the Crown pointed to the different evidence proffered by the sureties regarding their relationship and frequency of seeing each other. The bail plan, as presented, was at most aspirational and not realistic on a day-to-day basis.

Analysis

[70] Section 493.1 of the Criminal Code requires courts to give primary consideration to the release of an accused person at the earliest and reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the individual to comply with when considering the grounds referred to in section 515(10).

[71] In R. v. Nelson, 2020 ONSC 1728, para 18, Edwards, J. stated:

… it has become clear from several decisions from the Supreme Court of Canada that bail should only be denied to an accused person in a “narrow set of circumstances”, and only “when necessary to promote the proper functioning of the bail system”: see, R. v. Antic, 2017 SCC 27, para 50. Judges at all levels dealing with matters involving bail are reminded by Antic and R. v. Myers, 2019 SCC 18, that incarceration pending a trial is not and never should be the norm. We must always remind ourselves, despite the clarion call in the media and public at large for judges to get tough on crime, that an accused - regardless of the charges before the court - is always deemed innocent until proven guilty, and that the right not to be denied unreasonable bail is a fundamental right not to be treated lightly.

Martin Duah’s Past Conduct

[72] The Crown filed the Applicant’s criminal record as part of its argument that the Applicant should be detained on the secondary and tertiary grounds. The Crown also filed the occurrence reports for many of the entries to provide a more fulsome factual background.

[73] All entries on the record are youth court entries commencing February 14, 2018, until July 28, 2020. In that short time, the Applicant was found guilty of possession of a firearm on three separate occasions, one with ammunition; fail to comply with a recognizance x2; fail to comply with sentence x2; possession of property obtained by crime x2; possession for the purpose of trafficking; and weapons dangerous.

[74] To the Applicant’s credit, there have been no further additions to his criminal record for almost four years, although there may be a bench warrant for his arrest outstanding from the Yukon Territories for trafficking a controlled substance.

[75] The Applicant’s record is not necessarily reflective of his current attitude towards court orders when considered with the four-year gap. However, when considering the above factors, a solid plan of release is required.

The Secondary Ground

[76] Pursuant to section 515(10)(b) of the Criminal Code, detention is justified on the secondary ground where it 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."

[77] I have considered the relevant factors as required pursuant to section 493.2. As set out in R. v. E.B., regardless of the accused's circumstances, there may be occasions where an accused person’s detention is necessary. The question I must ask is whether the secondary ground concerns can be addressed by the proposed release plan and having regard to all the relevant factors.

[78] The plan initially presented was very appealing. If the Applicant were to be released, he would be moving into a new custodial environment with supervision round the clock, restrictions on visitors, subject to searches, and being recorded in the privacy of his bedroom. However, the plan is only as strong as the persons who undertake to implement and enforce it and the confidence the Court has in the persons proffered.

[79] Kevin put effort into a new release plan. He is a hard-working, well-intentioned young man who is gainfully employed and accumulated a significant amount of savings over the past few years. He loves his brother and would do almost anything to get him out of jail. However, I have concerns regarding his suitability as a surety and the sincerity of fulfilling his duties.

[80] To secure his brother’s release, Kevin spoke with his employer who agreed to lay him off so he could stay home with his brother. Kevin is a third-year apprentice. He is not yet a licenced plumber, but he is a member of a union. Kevin erroneously believed by arranging to be laid off, he could secure Employment Insurance (EI). While collecting EI, he also discussed working from home for his girlfriend’s family online business. Kevin failed to realize he and his employer would be perpetuating a fraud on EI. Kevin also failed to understand if he is working for the online business, he is employable and not entitled to collect EI.

[81] Kevin also told the Court he will receive financial assistance from his mother. He expects her to contribute $500 per month as she recently obtained employment. Mansa Duah resides in government housing based on her evidence at the initial hearing. It is unclear if social services are aware both sons have moved out or that she has sufficient funds to offer monthly assistance to Kevin in the quantum suggested. This may affect her eligibility for her current two-bedroom apartment and/or qualify for assistance.

[82] I also had difficulty reconciling the evidence of Kevin and Brandon Ihanza on specific issues, some of which impact directly on the plan proposed.

[83] Kevin swore in his affidavit and initially testified the cameras were installed. They have not been. This is a minor issue which is readily explainable but does impact when other issues arose that call into question his credibility.

[84] Kevin testified he was the person who signed the lease on January 21, 2025. His evidence was clear it was he who signed the lease. No evidence was adduced that Mr. Ihanza has also signed the lease but Kevin did say Mr. Ihanza’s name was on it.

[85] The monthly rent is $2,500 plus utilities. The rent will be paid by Kevin and Mr. Ihanza per Kevin’s evidence. He was asked about the sustainability of maintaining monthly expenses and advised he had a year’s worth of rent saved. A year’s worth of rent without utilities is $30,000. The amount left in his savings, if Kevin is required to pledge a $5,000 cash deposit for his brother. The inference is Kevin is solely responsible for the rent and it is not being split. This makes sense when you consider the living arrangements at the unit.

[86] Despite the assertion that rent is being paid by Kevin and Mr. Ihanza, it is the Duah brothers who will occupy the two bedrooms in the unit. Mr. Ihanza, who is busy starting up a football club and is extremely busy sending emails and making phone calls daily, and who likes to do this from the comfort of his own home, will be occupying the public living space and sleeping on a futon. He is the one person in this arrangement who will have no privacy to conduct his work or personal affairs yet is responsible for 50% of the bills. This defies common sense.

[87] Kevin told the Court he is currently living in the unit with Mr. Ihanza. In earlier questions, his answers suggested this had not happened. For example, he stated at one point, Mr. Ihanza “will be taking the living room”, suggestive that Mr. Ihanza had yet to move in.

[88] He was asked how they decided to move in together and Kevin explained the decision was made to assist in a plan to have the Applicant released. Kevin was pressed on how often he would see Mr. Ihanza prior to the decision to move in together. He replied he saw Mr. Ihanza biweekly in the months before they moved in. Mr. Ihanza had a football team, and Kevin would help and volunteer with the kids and training.

[89] Mr. Ihanza was asked similar questions. He explained he had recently started a football club. The first session was in December 2024. He recalls Kevin being there at the first session but was unable to confirm if he was there on other occasions. All three teams practiced at once and the field was split up. Many people stopped by briefly to say hello or check in so he could not confirm if Kevin had done so.

[90] It begs the question, if Kevin was truly attending biweekly to volunteer and help, he would not be there for a trifling minute such that Mr. Ihanza would not have recalled or remembered seeing him there. It is possible he stopped by but that is not what his evidence was. Further, the club only started in December and Kevin moved in after signing the lease on January 21, 2025. At its highest, it would have only been a month that this was possible not the “months before they moved in” as described by Kevin Duah.

[91] Mr. Ihanza’s evidence is also problematic. He told the court he “moved into 60 Honeycrisp a few months ago when discussing the plan”. He then appeared to be looking down at something to his right, and responded, he “was unsure of the date”, followed by “about a month or two ago”. It is clear he did not move into Honeycrisp a few months ago as the lease was not signed until January 21. It also contradicts Mr. Ihanza’s affidavit which stated he was living in Georgetown with his mother, brother, and sisters as of January 23, 2025.

[92] He testified he is currently occupying a futon in the living room as the other (currently unoccupied) bedroom is for the Applicant when he gets released. No explanation was offered why Mr. Ihanza could not occupy that room pending the Applicant’s release.

[93] Mr. Ihanza testified at these proceedings from a bathroom. He stated he was at a gym in Georgetown, and it was the quietest place. Clearly visible behind Mr. Ihanza was a showerhead like what is installed for a bathtub shower in a home. The shower curtain was also visible. At one point during his testimony a male voice could be heard calling to him. Mr. Ihanza told the person to be quiet. The other male went to open the door wider, and Mr. Ihanza pushed him out and closed the bathroom door.

[94] While I do not have evidence before me that Mr. Ihanza was not testifying from a gym in Georgetown, I have significant doubts. It is far more likely he was testifying from his home in Georgetown and his brother almost barged into the bathroom.

[95] I have trouble accepting that Mr. Ihanza is living at the Honeycrisp unit or if he has any intention to do so. I have strong suspicions that this is all a ruse to mislead the court into believing the plan to secure the release of the Applicant.

[96] After hearing Kevin Duah and Brandon Ihanza testify, I am not satisfied regarding the genuineness of the plan and their credibility.

[97] The earlier and current plans proposed are very restrictive and include GPS monitoring. Electronic monitoring may act as deterrent in some situations but not all. It assists in knowing the location of an accused person, providing the ankle bracelet is properly charged and not removed. Electronic monitoring can be very effective where a surety has the confidence of the court in reporting absences to the company monitoring an accused person whereabouts.

[98] It is not foolproof and does not prevent breaches or reoffending. It also requires the Court to be satisfied with the sureties and any exceptions for the Applicant to leave the residence when subject to the ankle monitor. This plan included exceptions for the Applicant to leave the residence in the company of one of the sureties. It requires reporting to the provider in advance that the Applicant will be leaving the residence. Because I have concerns regarding the truthfulness of Kevin and Mr. Ihanza, I am not satisfied they would always accompany the Applicant outside the residence, after informing the provider where they were attending. This would enable the Applicant to move about unsupervised and unchecked as the sureties would not be subject to electronic monitoring.

[99] Ms. Carpino proffered herself as an additional surety to assist with supervision. She is the mother of the Applicant’s ex-girlfriend. Most of the information she knows about the Applicant came from her daughter. Although she understands the responsibilities of a surety, it was unclear to Mr. Ihanza what her role would be. There was a disconnect in the evidence what her role was. Mr. Ihanza was unaware what she would do and confirmed he had not spoken to her. In his words, he had “no real need to speak with Martin’s ex-girlfriend’s mother”. This also contradicted his affidavit where he swore, they had all spoken.

[100] Due to my concerns regarding the primary sureties, the proposed plan of release does not adequately address the concerns on the secondary ground.

The Tertiary Ground

[101] Section 515(10)(c) of the Criminal Code justifies detention where it is necessary to "maintain confidence in the administration of justice, having regard to all the circumstances."

[102] The Justice of the Peace at the initial bail hearing found that all four factors favoured detention. This included the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and the fact 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.

[103] The four factors are to be considered together with all the circumstances. While the alleged offences are serious, and the strength of the Crown's case appears strong, there is no allegation of the use of a firearm. I am mindful the allegations include a kidnapping that occurred in a public place and if convicted of kidnapping he could face a lengthy term of imprisonment.

[104] Despite this, I have considered the factors and circumstances, including s. 492.3, and I am not satisfied that the Applicant’s detention is warranted on the tertiary grounds. If the secondary ground concerns were properly addressed, terms of release could be imposed that would satisfy and maintain confidence in the administration of justice.

Section 493.2

[105] The Applicant is a member of a vulnerable population which is overrepresented in the pre-trial detention population. I must consider s. 492.3 in determining whether the Applicant should be granted a release.

[106] Despite the Applicant’s circumstances, in the absence of an adequate or suitable plan to address the secondary ground concerns, the Applicant cannot be released.

Disposition

[107] For the foregoing reasons, the application is dismissed, and the Applicant is detained on the secondary grounds.

Rhinelander

Released: March 3, 2025