R. v. Tshiamala, 2015 ONCJ 335

Citation: R. v. Tshiamala , 2015 ONCJ 335 Case Name: R. v. Tshiamala Between Regina and Gaetan Mkanda Tshiamala Ontario Court of Justice P. Kowarsky J.P. Heard: May 19, 2015 Judgment: June 17, 2015 Counsel: Crown Counsel: Mr. D. Wright Defence Counsel: Mr. C. White JUDICIAL INTERIM RELEASE HEARING REASONS FOR JUDGMENT P. KOWARSKY J.P. A. INTRODUCTION 1 . At the conclusion of the bail hearing for Gaetan Mkanda Tshiamala on Tuesday afternoon, May 19 th 2015, I adjourned the matter to May 21st for judgment.

Prior to my delivering judgment on May 21 st , defence counsel asked me whether I would be prepared to hear some further evidence which had apparently come to light after the end of the Bail Hearing on May 19 th , and which could impact the court’s view of the quality of the proposed sureties and the plan of release in a manner ostensibly beneficial to the accused’s application for release on bail. Defence counsel also requested transcripts of all proceedings to date, including those on May 21 st 2015. I granted defence counsel’s request, and the matter was adjourned.

After receipt of the transcripts, at the request of defence counsel, the matter was adjourned to today, June 17 th for the further evidence. Earlier today, defence counsel informed me that he would not be presenting any further evidence, and that he and the accused would be ready to receive my judgment. Accordingly, I held the matter down until now. This is my judgment. B. OVERVIEW 2 . The accused is a 29-year-old man, who came to Canada with his mother and four siblings on February 6 th 1996, claiming refugee status.

The accused’s mother testified that during the period that elapsed since their arrival, she and three of her children were granted Permanent Resident status in Canada. The accused and one of his brothers have remained refugee claimants for the last 19 years. 3 . There is some discrepancy in the evidence as to what grade he completed in high school: either grade 10 or 11. Since then he has had some odd jobs, but has not been employed on a full-time basis. The accused’s mother told the court that his work permit expired some time ago, and he was supposed to apply for another one, which he apparently has not done.

It is unclear for how long, but the evidence suggests that he has not been employed, and collects welfare payments. C. BACKGROUND

4 . On September 26 th 2013 the accused was released on bail, having been charged with numerous indictable offences. He now comes before the court, charged with 5 indictable offences. Accordingly, the onus of persuasion is reversed so that in order to secure his release on bail, the accused is required to satisfy the court on a balance of probabilities, with respect to all three grounds under section 515 (10) of the Criminal Code that it is not necessary that he be detained in pre-trial custody. 5 . Gaetan Mkanda Tshiamala is charged that on April 26, 2015, he committed the following offences:

i) Assault; ii) Mischief, damage to property under $5000.00; iii) Threatening death; iv) Failing to comply with Recognizance by breaching the “no contact” condition;

v) Failing to comply with Recognizance by breaching the curfew condition. D. HISTORY OF ACCUSED’S INVOLVEMENT WITH THE CRIMINAL JUSTICE SYSTEM 6 . The accused does not have a criminal record. 7 . With the consent of Defence Counsel the Crown read in the allegations with respect to the charges on which the accused is already on bail in Peel Region. 8 .

The accused has had a two-year relationship with the complainant, thirty-year old Robertha Johnson, the details of which are unclear to me, although the Crown indicated that the relationship commenced sometime in 2013, and that alcohol and drugs were involved in the relationship. 9 . During May of 2013 the accused and the complainant repeatedly argued verbally. He is also alleged to have brutalized the complainant. He punched and kicked the complainant regularly. On one occasion it is alleged that he picked up a knife, pointed it at her, and threatened that he was going to cut her face. 10 .

On July 2, 2013, the complainant was residing in Room 240 at Studio Six Motel in Mississauga. The accused entered the room with two male friends at about 3:40 am. The complainant indicated that she did not like one of the male friends. The accused began to assault her. The three males left the room. 11 . Later that morning, the accused returned to the room, and hit the complainant with a bottle of Rum. He continued to kick, punch and assault her. Somehow, she was able to call the police who arrived on scene and arrested the accused at 4:09 am.

The complainant had cuts, bruises and other injuries to her head and body. 12 . In July 2013, Ms. Johnson informed the police that she had been working for the accused as a prostitute from November 2012, and that she earned $500.00 to $700.00 a day, which she turned over to the accused. She told the police that the accused had given her instructions as follows: “Do not talk to other pimps;” and “Do not talk to other working girls.” 13 . In September 2013, the accused was charged with five criminal charges in Brampton, including assault, choking and threatening to kill Ms.

Johnson, and living off the avails of prostitution. 14 . On September 26, 2013, the accused was released on a $2500.00 Recognizance of Bail with his older brother, Pako as his surety. The Recognizance was made subject to certain conditions including: To reside with his surety, as far as I understood from the evidence, at a specific address in Brampton, which is the home of his

family where his mother and his siblings reside; To abide by a curfew from 10:00 pm to 6:00 am every night unless in the presence of his surety or for the purposes of employment; Not to have any contact or communication, directly or indirectly with Robertha Johnson except through legal counsel. E. THE CURRENT CHARGES 15 . On April 26, 2015 the accused was arrested and charged as follows 1. Assaulting Robertha Johnson; 2. Mischief – damaging her table and cell phone; 3. Uttering a threat to Robertha Johnson to kill her; 4. Breaching his Recognizance by contacting and communicating with Robertha Johnson; 5.

Breaching the curfew condition of his Recognizance. 16 . The allegations were read into the record by the Crown Attorney. It is alleged that:

a) On April 26 th 2015, the complainant was celebrating her birthday in her home at around 9:00 pm. Two of her girlfriends, Maureen Wangari and Nahid Abdulla were with her at the time.

b) The accused, who was not invited to the gathering, arrived at the home with 4 of his friends at 1:00 am.

c) The accused brutally attacked Ms. Johnson after she apparently suggested that the accused leave, punching her in the face with his fists. He dragged her to her bed, sat on top of her, and held her down while continuing to punch her all over her body and face with closed fists. He grabbed a table and smashed it.

d) He warned the complainant that he would kill her and her two friends who were present, and witnessed the entire attack while trying to pull the accused away from the victim in an effort to stop the assault.

e) Eventually, Ms. Johnson managed to call 911. The police were summoned, and arrested the accused. The complainant gave a written statement to the police, providing them with details of the attack. F . REVERSE ONUS PROVISIONS 17 .

In cases such as the one at bar, where the onus is reversed, section 515 (6) of the Criminal Code provides as follows: “Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law.” 18 . The Crown is seeking the detention of the accused on the secondary and tertiary grounds.

Although the allegations with respect to the Brampton Charges were read into the record, the Crown is not applying to have the previous release revoked. 19 . In the process of determining whether the accused has met his onus, the court must consider all the circumstances of the accused and the accusations against him in conjunction with the plan which is proposed by defence counsel for his supervision upon release. 20 . It is not the role of the bail Justice to punish the accused.

Rather, the jurisprudence mandates that no matter how serious the allegations are, if a plan of release can reasonably be crafted so as to reduce the Court's concerns on the secondary and tertiary grounds to an acceptable level, the accused must be released on bail. G. THE RIGHTS OF THE ACCUSED 21 . I take into account the rights of the accused under the Canadian Charter of Rights and Freedoms to the presumption of innocence, his right to be granted reasonable bail as well as his right not to be deprived of his liberty and security except in accordance with the principles of fundamental justice.

22 . The overwhelming jurisprudence with respect to these rights clarifies that Imprisonment prior to trial is a last resort; Pre-trial detention is extra-ordinary in our system of criminal justice; There are no categories of offences for which bail is not a possibility; and Bail will be denied only in a narrow set of circumstances. 23 . In R. v.

St.-Cloud 2015 SCC 27 , released on May 15, 2015, the Supreme Court of Canada, in considering the issue of bail with respect to the tertiary ground, made the following poignant general statement: “It is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception”. H. THE PLAN OF RELEASE 24 . Defence Counsel presented a plan of release involving three sureties, who would pledge a total of $2500.00 to secure the release of the accused. His 20-year-old sister, Rachele Tshiamala testified as set out hereunder. 25 .

She lives with her mother and 3 brothers (including the accused) in a townhouse located at 46 Dearbourne Blvd. in Brampton, Ontario. She has two part-time jobs and is going into her third year of a 4-year program at the University of Toronto. She spends most of her time during the week out of the home, either at work or at school, and she also works every Saturday. Her income is between $200.00 and $300.00 per week. 26 . She is “close” to Gaetan, who often gives her advice. She testified that Gaetan does not live permanently at the family home, but rather he comes and goes from time to time.

She does not know whether her brother is employed but believes that he collects unemployment insurance. They have never discussed his charges. She only found out on the day of this bail hearing that he had been constantly breaching his curfew. Although she was concerned when he did not come home, she was not his surety so it was not her responsibility. She is willing to pledge $1000.00 as surety for her brother, and to supervise him. 27 .

The accused’s mother, Binku Rose Tshishimbi testified that she is 50 years old, and lives at the Dewbourne Blvd. address with her daughter Rachele, and her 4 sons: Gaetan, Pako, Jacob and Isaac. She is not employed although she used to be a general labourer, working through various employment agencies. She last worked in January 2015. She is prepared to stay at home with Gaetan all the time. She is willing to pledge $500.00 to secure the release of her son. 28 . She testified that Gaetan sometimes lives at home and sometimes he lives elsewhere. The accused has not been working. He is on welfare.

His work permit expired some time ago, and he was supposed to apply for another one. She doesn’t know why Gaetan is still a refugee claimant. In her words, Gaetan and another son did not become Permanent Residents of Canada because “they didn’t mention their names.” 29 . Mr. Jermaine Montgomery Selkridge was the third proposed surety. He is 31 years old, and has been Gaetan’s friend for 13 years since they attended high school together. He also lives in Brampton about a 15-minute drive to Gaetan’s family home.

After working as a forklift operator for a company in Mississauga for nine years, he was laid off in January of this year, and is now entering a program to obtain a B Licence which would entitle him to drive a bus or a truck. 30 . Mr. Selkridge told the court that in the last 3 or 4 years he has been “close to him.”[The accused]. They see one another “a couple of times a month” and talk on the phone “a couple of times a week.” However, he was not aware that Gaetan had been charged previously with criminal offences including living off the avails of prostitution. He and Gaetan never discussed Gaetan’s charges.

He has never heard of Robertha Johnson or her two female friends, Maureen Wangari and Nahid Abdulla. He and the accused go to bars together, and “talk about life in general.” 31 . He told the court that some time ago Gaetan also worked for the same company by which he was employed. He believes that after Gaetan left that company he worked “in a couple of warehouses.” Finally, Mr. Selkridge testified that in the last couple of years “we never discussed that I was laid off or what work he was doing.” He is prepared to pledge $1000.00 to secure the release of the accused. 32 .

All three proposed sureties testified that in the event of the accused’s breaching his bail, they would call the police. 33 . Essentially, the plan is that the accused will reside in the family home with his mother, his sister and brothers under house arrest with exceptions when in the company of a surety. I. THE SECONDARY GROUND 34 . The secondary ground is set out in section 515(10) (

b) of the Criminal Code . It provides as follows:

"For the purposes of this section, the detention of an accused in custody is justified only...where the detention is necessary for theprotection or safety of the public, including any victim or witness to the offence, or any person under the age of 18 years, having regardto all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence orinterfere with the administration of justice." 35. In R. v.

Morales (1992), (SCC), 17 C.R. (4th) 74 S.C.C., Chief Justice Lamer as he then was, speaking for theSupreme Court of Canada, explained the meaning of "substantial likelihood of committing further offences" as follows: "Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice - onlywhere this substantial likelihood endangers the protection or safety of the public". 36.

Also in Morales, Chief Justice Lamer further expressed the difficulty of evaluating the meaning of "substantial likelihood" when hesaid: "While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exactpredictability of future dangerousness is not constitutionally mandated." 37.

It follows that in assessing the risks of release, the court cannot precisely predict future dangerousness but must consider all thecircumstances in a concerted effort to determine whether the proposed plan of release is sufficient to attenuate its concerns and reducethem to an acceptable level. J. THE APPARENT STRENGTH OF THE CROWN’S CASE 38. When the accused was arrested around 4:30 am he was not in the company of his surety, Pako Tshiamala, as he was required to beunder his bail conditions from Peel Region.

After the arrest of the accused on April 26, 2015, the complainant gave a written statementto the police. She described the violent, random attacks, and her role as a prostitute under the control of the accused, who was her pimp. 39. The police took photographs of the injuries. The two witnesses, who were present when the attack occurred and tried to stop it, willtestify as to what happened. 40. The complainant’s evidence in relation to the May 2013 attacks is that it comprised two parts, namely that the accused attacked andviolently beat her; then he left, and later returned to continue the vicious attack. 41.

My understanding is that the accused was arrested at the scene of the attack or shortly thereafter underscoring the strength of thecase against him. 42. Defence Counsel himself referred to the seriousness of the charges as being attacks on the same complainant as the one in theBrampton case in 2013, comprising aggravating beating, punching and allegations of coercion and exploitation. 43. Coupled with all of this, the evidence relating to the Brampton Charges may well reveal a continuous level of violent and dangerousbehaviour on the part of this man.

The police are now still in the early stages of this investigation. Having regard to the unemployment,activities and behaviour of the accused, it seems to me that the police may well discover more prostitution, pimping and violence duringthe intervening period between the Brampton charges in May 2013 and the current charges some two years later. 44. I conclude that the Crown’s case against the accused appears to be rooted in a sound evidentiary foundation. K. THE ADEQUACY OF THE PLAN OF RELEASE 45.

Other than evidence that the accused’s brother, Pako, is his surety under the Bail Order from Peel Region, I have no informationwhatsoever with respect to that Bail Order, neither do I know whether the suggested plan of release would conflict with any of the termsof the Peel Region Bail Order. 46. The accused has ostensibly been residing in the family home all of his life, and yet he is facing extremely serious charges. Wherehave is mother and sister been while all this activity was apparently going on? 47.

Gaetan’s older brother, Pako, is his surety on the Brampton charges, and, according to the evidence, he lives in the family home too.However, it was under Pako’s watch that the accused is alleged to have continuously breached his curfew. Both his sister and his mothertestified that he did not reside there consistently but rather it was on an “on and off” basis, and neither of them knows where he livedwhenever he was not at home where he was required to be pursuant to the terms of a Court Order of Release. 48.

In essence, the testimony of all three proposed sureties is that none of them really knows anything about the accused’s lifestyle, hisactivities, his friends or his associations although they all know that he is not employed. In fact, the mother testified that he was supposedto renew his work permit but apparently has not done so. 49. I reject outright Defence Counsel’s suggestion that the residence condition provide for the accused also to reside with his friendJermaine from time to time. Jermaine knows nothing about the accused.

He knew nothing about the outstanding charges, and they neverdiscuss anything other than “life in general” when they “chill.” This, notwithstanding Jermaine’s evidence that he and the accused see

each other “a couple of times a month” and speak on the telephone “a couple of times a week.” 50 . I find that 29-year-old Gaetan Tshiamala dances to his own tune. He appears to have no regard whatsoever for his responsibilities under the law, the rights and feelings of others, and particularly, those of the complainant, or for the requirement to obey Orders of the courts. 51 . Other than receiving welfare payments, for reasons which escape me, I draw an inference that his source of income is pimping. And all three witnesses testified that they knew nothing about this whatsoever.

They have had no influence on his behaviour previously, and in my view, they will have little or no influence on his behaviour in the future. It is trite to say the past criminal behaviour portends future criminal behaviour. 52 . Moreover, despite the willingness of his 20-year-old sister to supervise him, I have little confidence that she would have the time in light of her employment and university commitments, nor do I believe that he would listen to his young sister at all. 53 .

I find it odd that defence counsel stated the following in his submissions: “Your Worship will have real questions about what happened with the last bail. We are not in a position to address those.” Why not, I ask? 54 . For all of these reasons, I am not persuaded that the plan of release is adequate to reduce my concerns for the welfare and safety of the public, and in particular, the welfare and safety of the vulnerable complainant in this case, to an acceptable level. 55 .

The effect of such a finding is that I am of the view that in all the circumstances, if I were to release the accused subject to the proposed plan, there is a substantial likelihood that he would commit further criminal offences which would endanger the welfare and safety of the community and in particular, that of the complainant. L. THE TERTIARY GROUND 56 . Having reached the conclusion that the accused has not met his onus on the secondary ground, I see no reason to delve into the issue of whether he should also be detained on the tertiary ground.

Suffice it to say that in light of the jurisprudence, and in particular, in light of the recent decision of the Supreme Court of Canada in R. v. St.- Cloud ( supra ) which deals extensively with the provisions of the tertiary ground, I would likely find that if the accused were released, it would bring the administration of justice into disrepute, and that the accused’s detention would be necessary in order to maintain confidence in the administration of justice. 57 . An extremely aggravating factor is that the accused is a refugee claimant, and has been for the past 19 years.

He has asked the Canadian Government to protect him and to permit him to reside in this country with all that it has to offer. And while awaiting the Government’s decision on his application, he is charged with committing heinous crimes over the past two years. M. DISPOSITION 58 . I order that the accused be detained on the secondary ground, and held in custody until he has been dealt with according to law. P. Kowarsky J.P.