R. v. Whitlow, 2021 ONCJ 564

ONTARIO COURT OF JUSTICE CITATION: R. v. Whitlow, 2021 ONCJ 564 DATE: November 8, 2021 COURT FILE No.: 2911 998 21 185 BETWEEN: HER MAJESTY THE QUEEN — AND — FOREST WHITLOW Before Justice Glen Donald Heard on September 15, 2021 Reasons for Judgment released on November 8, 2021 Nancy Komsa...................................................................................... counsel for the Crown Jaime Stephenson......................................... counsel for the defendant Forest Whitlow DONALD J.: [ 1 ] On Saturday February 7, 2021 Mr. Whitlow drove a stolen motor vehicle to Mr.

Kirk Carter’s jobsite where he exited it and began to rummage through Mr. Carter’s parked vehicle. Seeing this, Mr. Carter notified the police before attending to his vehicle. In response to being verbally confronted by Mr. Carter, Forest Whitlow said “wrong move, wrong choice” and fired a handgun four times at Mr. Carter who was struck twice in the arm suffering serious, life altering injuries as a result. [ 2 ] In the chaos that followed Mr. Whitlow finished transferring items from the stolen vehicle in which he arrived into Mr. Carter’s vehicle and then fled the scene driving it. [ 3 ] A short time later, Mr.

Whitlow failed to stop for a stop sign and collided with another motor vehicle. The collision was such that several passing motorists stopped their respective vehicles to help. Seizing upon this opportunity Mr. Whitlow attended the driver’s side of one of these vehicles and entered the recently vacated driver’s seat. As he did so he brandished his handgun and pointed it at the vehicle’s remaining occupant whom he ordered out of the vehicle upon oral threat of being shot. Mr. Whitlow drove away when the female passenger obeyed his command. This third stolen vehicle was subsequently abandoned and set ablaze by Mr.

Whitlow. [ 4 ] The firearm(

s) used in the commission of these offences was not recovered. [ 5 ] Mr. Whitlow was arrested peacefully the next day while in the company of his mother. There is nothing to suggest that his mother was aware of the significant events from the day earlier. [ 6 ] On September 15, 2021, Mr. Forest Whitlow pleaded guilty to aggravated assault, robbery with a firearm x2, possession of stolen property, fail to stop at an accident (under the Criminal Code ) and arson arising from the above events. [ 7 ] After registering findings of guilt defence counsel made a fresh application for bail.

The proposal was for a two-week release with a residential surety, his mother Paula Whitlow, coupled with 24 hour a day electronic monitoring. The proposed two week window of time was to allow him to get “his affairs in order” and also to facilitate easier communication with his counsel in preparation for his upcoming sentencing hearing. Defence counsel acknowledged that, regardless of where I land in the range of sentences yet to be

proposed, Mr. Whitlow will receive a “lengthy” period of custody for the above offences. [ 8 ] The Crown opposed his release on each of the three grounds for detention under s. 515(10) of the Code. [ 9 ] It is common ground that the onus was on Mr. Whitlow to show that his detention was not justified. [ 10 ] Having heard the evidence and submissions on the bail application defence advised that time was of the essence for me to provide a decision. As a result, I provided brief reasons ordering Mr. Whitlow’s detention but promising more thorough reasons to follow. These are those reasons.

Circumstances of the Offender [ 11 ] Mr. Whitlow turned twenty-eight on September 24, 2021. Had I released him he would have celebrated his birthday in the community under the supervision of his mother, the proposed surety. For a myriad of reasons, he had an extremely difficult upbringing. He attended Woodview Mental Health and Autism Centre between the ages of 8 and 11. During the same time frame he was diagnosed with “oppositional defiant disorder, possible obsessive compulsive disorder, elements of post-traumatic stress disorder and developmental language disorder”.

He was prescribed medications to assist him with those diagnoses. In the same time frame a clinician at the CPRI observed that he struggled with “low self-esteem, anxiety, and difficulty with social skills and a lack of motivation when he felt discouraged”. [ 12 ] At the age of 12, while attending the St. Leonard Society in Brantford (because the school on Six Nations lacked the resources necessary to deal with in operational disorder), Mr. Whitlow began running away from school.

On this point he told his Gladue Report writer [1] : By then I started to realize if I just run away I can leave these places they’re not going to hold me down and hog tie me like when I was a kid , so I started going AWOL, and eventually got myself kicked out of those places, they wouldn’t take me back because I was a flight risk . [Emphasis Added] [ 13 ] The Gladue report evidences a difficult relationship between himself and his mother during his adolescent years. This report speaks to Mr.

Whitlow’s unfortunate resistance to the efforts by his mother designed to assist her son in overcoming those obstacles. [ 14 ] When he was 13 or 14 he ran away from home to live with his paternal grandmother. [ 15 ] Things appear to have stabilized somewhat for Mr. Whitlow by the age of 18 as he found himself attending Tollgate Technical School and also engaged in a form of alternate education that left him one credit shy of his OSSD. [ 16 ] However, instability returned in the summer of 2015 as Mr. Whitlow’s maternal grandmother lost her battle to cancer.

Already struggling with an addiction to opioids stemming from injuries sustained during a motor vehicle accident in 2012, Mr. Whitlow located and accessed the prescription pain medication his grandmother had stockpiled during her treatments and remarked “it got pretty bad, the heroin started after my grandmother passed away”. In the throes of his addiction, and to feed it, Mr. Whitlow sold everything of value in his grandmother’s home although it had been left to his mother. [ 17 ] Mr. Whitlow was living in his grandmother’s property when he burned down in 2018.

He then lived with his girlfriend in Brantford but was “kicked out” by her and made homeless. To cope with his homelessness, he again turned to drugs. [ 18 ] When Ms. Whitlow learned of her son’s plight, she wanted to assist by having him return to live with her. This could only be accomplished if she evicted her common law partner of 20 years and so she made that sacrifice to help her son. [ 19 ] The evidence at the bail hearing makes clear that the despite his mother’s tremendous efforts Mr. Whitlow’s life did not subsequently stabilize. That Mr.

Whitlow lost his father in December 2020 could not have been helpful in this regard. Ms. Whitlow indicated that, last December, her son was living in the driveway of his father’s residence. [ 20 ] She testified that she “ hopes ” that the events that bring him into custody are a “come to Jesus moment” for him. I note that when the Gladue report was last prepared Mr. Whitlow was “ not open to attending an addiction rehabilitation center”. Legal Considerations [ 21 ] A bail release determination is ultimately an exercise in risk assessment, R. v. Castellano , [2021] O.J. No. 2226 at para 37 . Given that Mr.

Whitlow bears the onus on this Application, the issue for me to determine is whether the proposed release plan is sufficient to manage the risks Mr. Whitlow would present if released. [ 22 ] The record amply establishes that the Gladue principles will play a prominent role in my determination of a fit and appropriate sentence. In submissions, defence counsel suggested that the same principles were relevant to my release determination.

While there can be no doubt that Gladue considerations are generally relevant to a bail determination generally, I conclude they have little application in the circumstances of this case for two reasons. [ 23 ] First, when Mr. Whitlow entered unequivocal guilty pleas he relinquished his presumption of innocence. The very same moment, things that were once unproven allegations became accepted facts. There is no longer any question about whether Mr. Whitlow will see his liberty restricted with a jail sentence, the only question is quantum, and on that point the defence concedes that Mr.

Whitlow’s stay in jail will be lengthy [ 24 ] Second, this is not a situation where systemic factors prevent Mr. Whitlow from advancing a more restrictive or onerous form of release. His mother presented as a suitable surety and I do not doubt her willingness or ability to supervise her son. I am fully satisfied that she would have done her utmost to ensure Mr. Whitlow’s compliance with the conditions of his release had I released him from

custody. Moreover, she had the ability to make a substantial monetary pledge in support of him and was prepared to pay for him to be electronically supervised while in the community. It is difficult to conceive of a more stringent release plan than the one advanced on this application. [ 25 ] In most instances where issues of bail are revisited after findings of guilt, the request is made by the Crown who seeks detention by way of a bail revocation post a finding of guilt. This approach reflects the fact that the presumption of innocence is spent upon a conviction being registered.

Of course, post-conviction bail revocation is not automatic [2] . The presumption is that bail orders continue to remain in force unless the Crown can demonstrate cause to have them revoked. [ 26 ] Before me is the opposite situation – a man denied bail who applies for it anew upon extinguishing the presumption of innocence with voluntarily pleas of guilt. [ 27 ] Since I considered the bail application on its merits I need not consider whether I am bound by R. v. Stojadinovich, [2010] O.J.

No. 3664, where, at paragraph 13 Justice Matheson concluded: “… that people who have been convicted do not have a right to demand to be released on bail pending sentence.” [ 28 ] Mr. Whitlow has a long standing and untreated addiction to drugs. He did not enjoy much stability in the months leading to his arrest on these charges. History reveals that despite his mother’s continued efforts, for which she ought to be commended, Mr. Whitlow has allowed his addictions to dominate nearly every aspect of his life including his ability to be involved in the lives of his children.

While I have no doubt that she hopes that these events will be the catalyst for change I must wonder whether she has had similar hopes when she asked her common law partner to leave in order to have her son reside with her. [ 29 ] From a young age, Mr. Whitlow developed a history of running away from situations in which he did not want to deal with. The facts of this case amply demonstrate the continuation of that pattern. He is facing a lengthy stay in custody and I have serious concerns about whether he would voluntarily return to custody after enjoying two weeks away from the confines of a jail cell.

These concerns are exacerbated by the fact that his serious drug addiction remains effectively untreated. [ 30 ] I note that Mr. Whitlow has a limited criminal record. However, two entries are particularly relevant. In 2014 he was found guilty of breaching his release conditions. In 2019 he was found guilty of flight from police. The concerns that I have about public safety mirror those I have about him returning to court; the risks are real. The facts of this case amply demonstrate the extreme danger that Mr. Whitlow poses to the community when he is desperate – he shot an unarmed man. I know of nothing that Mr.

Whitlow has accomplished while in custody that attenuates against this danger. Further, the gun in question was never recovered. I have every reason to be concerned about how he may react to a police officer should one be needed to assist him in being returned to custody on these charges. [ 31 ] I find that Mr. Whitlow’s detention is necessary to ensure his attendance in court and for the protection and safety of the public. These two conclusions, coupled with the fact that Mr. Whitlow no longer enjoys the presumption of innocence, lead inexorably to a finding that Mr.

Whitlow’s detention is also necessary to maintain confidence in the administration of justice. [ 32 ] On the ultimate issue I conclude that Mr. Whitlow has not met his onus to demonstrate that his risks can be managed by the bail plan he proposed. He is therefore ordered detained until he is sentenced. Released: November 8, 2021 Signed: Justice Glen Donald