R. v. David, 2013 ONCJ 272

COURT FILE No.: Toronto Region Citation: R. v. David , 2013 ONCJ 272 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Mandel, ) for the Crown ) — AND — ) ) ) Stanton david and alpha water ) M. Osadet and J. An, ) for the accused David; S. Makanen, for the accused Water ) ) ) ) HEARD: May 6, 13, 2013 FELDMAN J.: Introduction [ 1 ] Stanton David is charged with three counts of Hostage Taking, Assault with a Weapon and Possession of a Weapon for a Purpose Dangerous to the Public Peace. Alpha Water is also facing three counts of Hostage Taking and one of Place a Trap with intent to cause bodily harm.

At the completion of the evidence at this Preliminary Inquiry, the Crown asked that Mr. Water be committed for trial, as well, on two counts of Mischief. [ 2 ] On Sept. 26, 2012, Kevin Perez, an inmate in unit 4b at the Toronto East Detention Centre, in custody on a first degree murder charge, upset that his brother had been placed in segregation, took two fellow inmates hostage by force over the course of these events, holding a piece of broken mirror to their necks and demanded that prison officials release his brother from segregation and allow them to meet. This caused a lock down of the unit.

Security officials were able to negotiate an end to the standoff with Perez that led to the release of the hostages. [ 3 ] The Crown alleges that the two accused were involved either directly or as ‘parties’ to the offences. [ 4 ] Ms. Makanen, for Mr. Water, submits that while there is some evidence of mischief on her client’s part, she says there is no evidence he was a party to the hostage takings or that he placed a trap. [ 5 ] Ms. An, for Mr.

David, submits that the evidence permits only one inference to the effect that the accused were independent actors, not parties, and that the evidence of her client’s involvement in a hostage taking was a “staged act of misconduct”, despite the rejection of that suggestion by the victim of it. She concedes there is some evidence to support committal in relation to the charges of Assault with a Weapon and Weapons Dangerous. The Evidence [ 6 ] The Crown called four correction officers each of whom gave evidence of their observations. As well, Sgt.

John Lawson, security manager at the institution, detailed what he saw on one of the video cameras not covered up by either Perez or Mr. Water. In addition, the hostage purportedly held by Mr. David was made available to the defence for cross-examination. [ 7 ] The video shows that at 10:37 a.m., inmates Perez, David, Reid, Water and Bensusan were briefly standing together at the back of the unit. At about 10:40 a.m., Kevin Perez ripped a glass mirror off the wall at the front grill door.

While waving around a piece of the mirror he seemed agitated and threatened to kill anyone who came into the unit. [ 8 ] The security manager testified that at the time, Mr. David was standing nearby while the other inmates hung back. He said he saw David kicking some pieces of the glass and then moving to the front of the unit to pick up some of the pieces that he then held in his hand. [ 9 ] Around this time, he said he observed Mr. Water walk into the shower area with a shampoo bottle and then come out and empty some liquid on the floor.

He saw him again shortly thereafter pour liquid from the same bottle on the floor in the area near the grill door. It was at this time Sgt. Lawson said he also observed Perez and David put their hands together after which he noted David at the front of the unit with the metal portion of the mirror in his hand. [ 10 ] Sgt. Lawson gave evidence that at 10:59 a.m., Mr. Water was pouring what appeared to be water at both the front and back entrances to make it harder for staff entering the unit.

In addition, Water, along with Perez, attempted to cover over the front camera with wet toilet paper to block what was occurring from the view of the authorities. By 11:02 a.m., three of the cameras were covered. Water then again poured liquid under the grill door. C.O. Garry Peck believed he also later saw Water with a piece of broken glass in his hand while holding a hostage. [ 11 ] C.O. Christine Cook saw Perez grab an inmate, thought to have the last name, Mungle, from behind around his neck and

place a piece of broken glass against his head. C.O. Wurtz believed this occurred at 11:13 a.m. At 11:17 a.m., the camera showed Perezholding a piece of the broken glass against Mungle’s neck (the Information was amended to refer to him as ‘John Doe’ as there is nowuncertainty as to his real name). C.O. Peck heard Perez say he would stab his hostage if his brother were not brought to him fromsegregation.

At the time, David was walking in front of the unit with Reid. [12] At 11:19 a.m., David is seen taking a different inmate, named Exner to Perez who held a piece of mirror against Exner’shead after having released Mungle. Outside the grill door were members of the crisis team holding weapons, some of whom at 11:24a.m. were speaking with the inmates. [13] Following this, while Perez continued to hold onto Exner, Mr. David was seen by C.O. Wurtz at 11:31 a.m. with his armaround the neck of another inmate, Bensusan, while holding the mirror hinge to his head.

While Bensusan was lying on the ground,David had his foot on his neck. He, along with Perez, was speaking with the crisis team. At one point, David dropped the metal hingeon the floor while continuing to hold his foot on the neck of the inmate. [14] After this, David helped Bensusan up and at 11:40 a.m. walked away. At 11:50 a.m., C.O. Peck told Perez that theSuperintendent had agreed to bring Perez’ brother up to him from segregation.

At 11:57 a.m., after speaking with his brother, Perezdropped his piece of glass in the garbage and put his hands up. [15] The inmate, Michael Bensusan testified, but claimed to have little memory of the incident due to post-traumatic stressdisorder. He denied he was pretending to be a hostage during these events. The Authorities Committal for Trial [16] There is a low threshold for committal for trial. In R. v.

Shephard, (SCC), [1977] 2 S.C.R. 1067, the courtinstructs trial judges to determine “whether or not there is any evidence upon which a reasonable jury properly instructed could return averdict of guilty”. [17] In this case, the Crown relies on both direct and circumstantial evidence.

In relation to the latter, the task of the preliminaryinquiry judge is more complex in that he or she must engage in a limited weighing of the evidence, in the sense of “assessing whether itis reasonably capable of supporting the inferences that the Crown asks the jury to draw”, made necessary because there is “an inferentialgap between the evidence and the matter to be established:: R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828. [18] The preliminary inquiry is, however, not the forum in which to weigh competing inferences or to assess the quality andreliability of the evidence: R. v.

Martin, (ON CA), [2001] O.J. No. 4158 (Ont. C.A.); R. v. Manickavasangar, [2004]O.J. No. 600 (Ont. C.A.). Rather, any reasonable

interpretation or permissible inference from the evidence, if properly admissible againstthe accused, must be resolved in favour of the prosecution: see R. v.Coke, [1996] O.J. No. 808 (Ont. Ct., Gen. Div.), cited in R. v.Ghazzi, (ON CA), [2006] O.J. No. 4052 (Ont. C.A.). For such inferences to be drawn, they need not be“compelling” or even “easily drawn” in order to be reasonable: R. v. Alexander, [2006] O.J. No. 3173 (Ont. S.C.). The Drawing of Inferences [19] Inferences must be capable of being reasonably and logically drawn from a fact or group of facts established by theevidence: R. v.

Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.). [20] In relation to circumstantial evidence, in particular, Watt J., as he then was, cautioned that “the boundary which separatespermissible inference from impermissible speculation…is often a difficult one to locate”: Watt’s Manual of Criminal Evidence(Toronto: Carswell, 2006) at p. 95 [21] Of importance, as noted earlier, difficult inferences are not excluded from consideration. In R. v. Katwaru, (ON CA), [2001] O.J. No. 209 (Ont.

C.A.), Moldaver J.A., as he then was, said that, “In order to infer a fact from establishedfacts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less easily does not meanthat it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonableand logical”. Party Liability [22] Code s. 21(1) defines a party to an offence as everyone who does or omits to do anything for the purpose of aiding anyperson to commit the offence or abets any person in committing it.

Abet is defined as encourage, support or uphold any person in thecommission of the offence. [23] In R. v. Dunlop, (SCC), [1979] 2 S.C.R. 881, Dickson J., as he then was, said at p. 7, “that mere presenceat the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; anact which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or

an act which tends to preventor hinder interference with the accomplishment of the criminal act, such as preventing the intended victim from escaping or being readyto assist the prime culprit.” [24] More recently, in R. v. Vu, 2012 SCC 40, Moldaver J. expanded on the understanding of party liability. He said that aperson is criminally liable as a principal, aider or abettor and will bear the same responsibility for the offence regardless of his or herrole.

A person becomes a party to an offence when he or she, armed with the knowledge of the principal’s intention to commit the crimeand with the intention of assisting the principal in its commission, does or omits to do something that assists or encourages the principalin the commission of the offence.

[ 25 ] In the case at bar, it is open on the evidence to infer that it was clear at the outset what was upsetting Perez and that he would resort to threats and violence to get authorities to bend to his will. It was also clear that but for David, Reid and Water, who remained close by Perez, the rest of the inmates held back. [ 26 ] The evidence permits the inference that David was engaged in support of the main protagonist. He was with him near the grill door when Perez shattered the mirror and he also picked up some of the broken pieces. He brought the second hostage to Perez.

He himself held an inmate hostage using force and intimidation. In that regard, he used the broken mirror’s hinge to effect compliance. Counsel for the accused concedes there is some evidence in these circumstances to commit him for trial on charges of Assault with a Weapon and Weapons Dangerous. He will be committed for trial on those charges. [ 27 ] There is also in my view evidence upon which to commit Mr.

David as a principal on one count of hostage taking and as a party to two such counts on the basis it can be inferred by his actions that he aided and encouraged Perez in taking two inmates hostage for the purpose of coercing the authorities to submit to his demands. He will be committed for trial on three counts of hostage taking. [ 28 ] In relation to Mr. Water, the evidence indicates that he, David and Reid were together with Perez just prior to the latter breaking the mirror and going on a rampage to effect his purposes.

Perez was clear to all in what he wanted from the authorities. [ 29 ] It is right after this that Water poured liquid from a shampoo bottle multiple times on the floor at both the front and back entrances to the unit. This could have had the effect of endangering any staff that entered the unit to subdue the rebellion in addition to slowing them down. He, as well, took steps to cover up three cameras and the back window with wet toilet paper in order to block the view of management. It is open to be inferred that in doing so he was wilfully aiding and abetting Perez in his violent and extortive behaviour.

He will be committed for trial on three counts of hostage taking. [ 30 ] Counsel for the prosecution asks that Mr. Water be committed in addition in relation to this evidence on two counts of Mischief as set out in s. 430 (1)(

b) and (c). Subsection (

b) makes reference to rendering property dangerous, which is the effect soapy water could have on unaware or even knowledgeable staff rushing into the unit to take control of the inmates. Subsection (

c) deals with obstruction or interference with the lawful operation of property, in this case, the covering up of the cameras that diminished the ability of those responsible to provide security in unit 4b. Ms. Makenan concedes there is evidence to support committal on these two additional counts. There will be a committal for trial on two counts of mischief. [ 31 ] Ms. Makenan submits, however, that there is insufficient evidence upon which to commit her client on the charge of Place a Trap. That charge, set out in Code s. 247(1)(b), was discussed in R. v. Legge, [2011] N.J. No. 50 (Nfld. And Labrador Prov.

Ct.) . There, the accused attempted to protect his marihuana grow op by encircling the plants with a line of fish hooks. During the execution of a search warrant some police officers were injured by the hooks. [ 32 ] At para. 22, Judge Gorman said that it was not sufficient for the Crown to prove that a trap was set. It must also prove that the accused intended to cause death or bodily harm by doing so and that the nature of the trap was such that it was likely to have such a consequence, though the causing of actual death or bodily harm was not necessary.

The accused must also knowingly permit that “trap, device or other thing” to remain in place. [ 33 ] Of significance here, Code s. 2 defines bodily harm as meaning “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. [ 34 ] The evidence indicates that staff was aware of the defendant Water dispersing liquid on the unit’s floor and its purpose. It is unclear what effect it might have had on security officials had they entered the unit, whether to cause them to slip and fall or merely to slow them down.

It would be conjecture on this evidence to infer the likelihood, as opposed to the mere possibility, of more than transient or trifling injury resulting, particularly since management was aware of the “trap”. The mischief charges are appropriate here. I would discharge Mr. Water on the charge of Place a Trap. Released: May 17, 2013 Signed: “Justice L. Feldman”