R. v. De Finney, 2011 ONCJ 537

Citation: R. v. De Finney, 2011 ONCJ 537 In the Ontario Court of Justice Toronto Region Metro North In the matter of Regina v Gaige De Finney Before His Worship P. Kowarsky Justice of the Peace REASONS FOR JUDGMENT Judicial Interim Release Hearing Hearing: October 6th 2011 Judgment: October 7th, 2011 Counsel: Mr. J. A. Hannah-Suarez for the Crown Ms. B. Petrouchinova for the Accused R. v. De Finney A. OVERVIEW 1. Gaige De Finney is a 19 year old man who appeared before me yesterday seeking judicial interim release. This matter was set downfor hearing as a “special”.

At the conclusion of the matter in the afternoon, I reserved my decision until today. These are my reasons forjudgment. 2. The accused is charged with extremely serious offences. Since May of this year, he has been on release for possession of marihuanafor the purpose of trafficking as well as for production of marihuana. The Crown brought an application under

section 524 of theCriminal Code for an order that the accused’s previous release, namely a Promise to Appear, be cancelled. After hearing submissions, Igranted the order and cancelled the previous release. 3. Consequently, and for reasons related to his drug trafficking charge as well as his current weapons charges, the onus is reversed. 4. In R.v. Pearson, (SCC), [1992] 3 S.C.R. 665 the Supreme Court of Canada held that the constitutionality of thereverse onus provisions with respect to drug trafficking does not violate the accused’s rights under sections 7, 9 or 11(

e) of the Charter.The court found that “the reverse onus provisions target the pre-trial recidivism and absconding problems, which are characteristic ofsystematic drug trafficking.” 5. Accordingly, to secure an order for judicial interim release, the accused is required to satisfy the court on a balance of probabilitiesthat his detention is not necessary on any of the three grounds set out in

section 515(a),(

b) and (

c) of the Criminal Code. The Crownsubmits that the court should order the detention of the accused on the secondary and tertiary grounds. 6. From the evidence, it appears that 19 year old Gaige De Finney has had a troubled upbringing. He has no parental figure in his life. Hisfather, who was not married to his mother, left them to fend for themselves. When he turned 18 his mother “gave up on him” and threwhim out of her house. For the past year he has been living with his girlfriend and her mother and family in a townhouse in Toronto. B. THE CHARGES

7. I have one Information charging the accused with one count of possession of marihuana for the purpose of trafficking and one count ofproducing marihuana contrary sections 5(2), 5(4) and 7(2)(

b) respectively of the Controlled Drugs and Substances Act. The offence date is alleged to be on May 16th 2011. 8. I also have a nine-count Information charging the accused with five counts of Robbery while armed with a firearm, one count of Using an imitation firearm to commit an indictable offence, all of which are alleged to have been committed on August 31st 2011.

In addition,he is charged with one count of Unauthorized presence of a firearm in a motor vehicle, one count of Possession of a prohibited weaponknowing its possession is unauthorized and one count of Possession of a firearm knowing its possession is unauthorized, all of which are alleged to have been committed on September 3rd 2011. C. THE RIGHTS OF THE ACCUSED 9.

The foundation of our criminal justice system is the presumption of innocence, which means that the accused is held to be innocentthroughout his passage through the criminal justice system until such time as he has been found guilty of committing the offence by acourt of competent jurisdiction.

Section 11(

e) of the Charter of Rights enshrines an accused's constitutional right not to be denied reasonable bail without just cause,and

Section 7 of the Charter accords to an accused the right not to be deprived of his liberty or security except in accordance with theprinciples of fundamental justice. 11. The abundant jurisprudence with respect to these rights makes it clear that: Imprisonment prior to trial should be the last resort. See R. v. Hajdu (1985), (ON SC), 14 C.C.C. (3d) 563(Ont.H.C.) Pre-trial detention is extra-ordinary in our system of criminal justice. See R. v. Bray (1983), (ON CA), 2C.C.C. (3d) 325 (Ont.C.A.) There are no categories of offences for which bail is not a possibility. See R. v.

Blind (1999), (SK CA),139 C.C.C. (3d) 87 (Sask. C.A.); R. v. Framboise, (ON CA), [2005] O.J. No. 5785 (Ont.C.A.) Bail will be denied only in a narrow set of circumstances. See R. v. Pearson, (SCC), [1992] 3 S.C.R. 665. 12. It is not the role of the Bail Court Justice to determine guilt or innocence or to punish the accused for the offences which he is allegedto have committed. Rather, it is the task of the Bail Justice to determine whether conditions of release can be crafted so as to reduce therisks envisaged in

section 515 of the Criminal Code to an acceptable level. In other words, does the plan of release adequately satisfy thecourt that the accused will come to court as required, that he will not commit an offence which will endanger the welfare and safety ofthe community, and that his release would not bring the administration of justice into disrepute. D. HISTORY OF INVOLVEMENT WITH THE CRIMINAL JUSTICE SYSTEM 13. The accused’s contact with the criminal justice system commenced around 2007.

In September 2008, he was found guilty ofpossession of property obtained by crime, break and enter and theft, and failing to comply with recognizance. He was sentenced to 54days time served which is a very significant custodial disposition for a young person’s first offence. He was placed on 18 monthsprobation and a weapons prohibition order was made. I was advised that the accused had been in possession of two stolen pellet gunstogether with gun cases. 14. The accused’s probation ended in March 2010.

However, while he was still on probation in September 2009, he was found guilty ofmischief under, apparently related to damage that he had done to his mother’s property. He was again placed on a probation order for a further 12 months commencing on September 22nd 2009. This probation order ended in September 2010. On May 16th 2011, some 7months after the conclusion of the second probation order, he is charged with serious drug offences. E. THE ALLEGATIONS 15.

The allegations relating to the drug offences are that the police saw four males loading numerous garbage bags into a motor vehicle.As they approached the scene, three ran away, leaving the accused alone. The 12 bags contained a significant number of marihuanaplants weighing 243 grams in total, and the accused was arrested and charged. Strange as it seems, he was released by the police on aPromise to Appear. 16. While on that release, the accused is charged on 31st August and September 3rd 2011 with the armed robbery and weapons offences.The allegations with respect to these charges are as follows:

a) At about 9:20 pm on August 31st 2011 some 10 or 12 people were sitting on steps in front of the main entrance to acommunity centre. The accused and two other males confronted them, each brandishing a weapon. The accused had a small blackautomatic handgun, one of the others was holding a large knife, and the third produced a Glock automatic handgun.Threatening the victims with their weapons, the three ordered them to empty their pockets and to place the contents on a nearby rock.They complied by placing cell phones and cash on the rock. The three accused grabbed these items.

b) However, at that time two other people approached the scene unaware of what was happening. The three pointed theirweapons at these victims. The accused’s two accomplices each put a gun to the side of one victim’s head, one saying: “I should take you out right now” followed by the other one who said: “Let me do it because mine is bigger”. After their cell phones and cashwere taken, all of them were ordered to leave, and the three accused absconded.

c) One of the victims recognized one of the three accused from high school. Using “Face Book” on the internet, she was able to identify that accused, as well as the other two. On September 3 rd Mr. De Finney was arrested while driving a motor vehicle registered to his father. His girlfriend was also in the vehicle with him. She was arrested and then released after being questioned by the police. During the search incident to the arrest of the accused, the police located a black flare gun, which resembled the gun used by the accused in the robbery.

In a cautioned video statement, the accused admitted his participation in the robbery, and that the flare gun was the gun which he had used. He also identified and implicated his two co-accused, who were subsequently arrested and charged. A Bibi gun and a knife were located on the co-accused upon arrest.

d) The police executed a search warrant of the vehicle which the accused had been driving at the time of his arrest. In the trunk of the vehicle, behind the spare wheel, wrapped in a towel, the police located a loaded sawed-off shot gun together with spare ammunition. The search also revealed the presence of numerous cell phones, one of which belonged to one of the victims of the robbery. In addition, the police found a gun scope and a quantity of tools and crow bars, including screw drivers, a hammer, pliers, a flash light and more.

Also a cheque in the name of someone from whose vehicle it had been reported stolen was found in addition to 6 watches, a necklace, a GPS Unit, 2 Ipods, and 5 cell phones, including the cell phone of one of the victims. According to the Crown, the vehicle concerned was registered to the accused’s father, a man of 42 with no criminal record. F. THE PLAN OF SUPERVISION 17 . Defence Counsel presented two proposed sureties.

Lorraine Durand testified that- • Her 18 year old daughter, Amanda, has been the accused’s girlfriend for the past 3 years, and during the past year he has been living with her in her home together with her daughter, her son and her father. • She is a stay at home mother who has been on W.S.

I.B. since 2006 when she was held up at gun point and kidnapped, resulting in “traumatic flashbacks”. • She receives $2000.00 a month which covers her expenses, and she has savings of $2000.00 which she is prepared to pledge to secure the release of the accused, to have the accused continue to reside with her under strict house arrest. • She is fully aware of his criminal past and the charges which he is currently facing.

She acted as his surety previously when he was charged with mischief, and there were no breaches. • However, under cross-examination she testified that the accused had been living with her at the time of his arrest on the drug charges in May of this year. • Under further cross-examination she told the court that her children’s father was a drug addict, but she “put up with him for 15 years”. • The accused respects her and will be with her “twenty-four seven”. 18 .

The second person proposed as an additional surety was the accused’s uncle, Robert Carter, who testified that- • He is 45 years old and lives with his wife and two teenage daughters in Whitby, Ontario. He is prepared to pledge the equity of $200,000.00 in his house which he owns jointly with his wife. • He is employed on a full-time basis by the Film Industry in Toronto, and has been so employed for the past 15 years.

He earns between $130,000.00 and $150,000.00 per annum. • Although the accused will not be residing with him, he will be in constant touch with Lorraine Durand by telephone and the accused will visit with him from time to time. Since there are lulls in his employment responsibilities, he will have time to act as a mentor for the accused who “absolutely requires counselling”. 19 . Mr. Carter has a Criminal Record which was tendered into evidence, marked Exhibit 2; the Accused’s Record having been admitted as Exhibit 1. Mr. Carter’s record comprises 20 convictions between 1985 and 1992.

There are numerous convictions for failing to comply with recognizance, two convictions for possession of a narcotic as well as convictions for a significant number of crimes of dishonesty, including theft, possession of property obtained by crime, uttering forged documents, driving while impaired and failing to provide a breath sample. 20 . Although he has been on bail on numerous occasions, he has never acted as surety for anyone. What bodes well for Mr. Carter is that he seems to have turned his life around, and has not been convicted of any criminal offence since 1992, almost 20 years ago. G.

THE SECONDARY GROUND ANALYSIS 21 . The ultimate question before me is whether this plan of supervision is such as to reduce my concerns on the secondary and tertiary grounds to an acceptable level. Section 515(10)(

b) requires the court to determine whether having regard to all the circumstances, there is or is not a substantial likelihood that the accused would commit further criminal offences which would endanger the welfare and safety of the community, if he is released on the plan submitted. 22 . It is noteworthy that the police arrested the accused while he was allegedly in the process of committing the drug crimes.

Furthermore, he was identified by one of the victims of the robbery, and was arrested while driving the vehicle in which some of the stolen items and the loaded shot gun were located during the execution of a Search Warrant. 23 . It seems to me, therefore, that the Crown’s case against the accused appears to be rooted in a strong evidentiary foundation even though I acknowledge that there will indeed be triable issues in due course.

24. In R. v. Morales (1992), (SCC), 17 C.R. (4th) 74 S.C.C., Chief Justice Lamer expressed the difficulty of evaluatingthe meaning of “substantial likelihood” when he said: “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.” 25. The protection and safety of the public constitute the essence of the secondary ground consideration, and there is no doubt that thesafety of the public is at risk in relation to drug production and trafficking.

Some three months after being released on the drug chargesand while awaiting trial, the accused is charged with 9 offences in relation to robbery and possession of a loaded firearm. As theSupreme Court of Canada expressed it in R. v. Morales (supra): “the bail system does not function properly if individuals commit crimeswhile on bail.” The Supreme Court held that the best predictor of future behaviour is past behaviour. 26. In R. v. Xaysay, [2006] O.J.

No. 1817, the Superior Court of Ontario made the following comment in relation to drug trafficking andconcomitant violence: “The growing presence of drug trafficking in Southern Ontario and the violence associated with it including serious injury and loss of lifeto innocent people has caused a sense of insecurity in the public”. 27. While I am fully aware that it is not the role of the Justice presiding in a Bail Court to pander to the hysteria and outrage of thecommunity, there are times such as these, when the surrounding circumstances of cases include an epidemic of gun violence, death,injury and destruction.

In such cases, I believe that the courts are obliged to consider with great care, the right of the community at largeto safety and protection when considering the accused’s right to the presumption of innocence and the right to be granted reasonable bail.The plan of supervision impacts directly on the safety of the community. The stronger and more reliable the plan of supervision, thegreater the protection. 28. In R. v.

W.R. (August 27, 2007) the Ontario Superior Court was dealing with a similar surety situation to the one before me, where asignificant amount of security was pledged by the proposed surety with a limited supervisory role. The principal surety lacked sufficientfunds so the secondary surety provided the funds. However, the Court held that the financial and supervisory components must co-exist:the risk of financial loss engages the interest of the surety and provides the motivation to fulfil the supervisory obligations. 29. In the case at bar, although Mr.

Carter testified that he is prepared to pledge the equity in his house which amounts to $200,000.00, asthe Crown correctly pointed out, since the house is jointly owned by Mr. Carter and his wife, who was not present in court, such a pledgewould have little if any practical value if the bail were to be estreated. Mr. Carter told the court that his wife suffers from anxietydisorder and would not be able to come to court as he has. H. THE ADEQUACY OF THE RELEASE PLAN 30. Essentially the plan of release appears to be wanting. Besides the financial concerns which I have in relation to Mr.

Carter’swillingness to pledge his house and Lorraine Durand’s relative impecuniosity, the accused would continue to reside with Ms. Durandunder house arrest while Mr. Carter would be in telephone contact with her and the accused, and would see him intermittently. There hasbeen no suggestion that the accused reside with Mr. Carter, perhaps because Mr. Carter works full-time and his wife who is a stay athome mother has significant anxiety issues. 31. Mr. Carter told the court that he and the accused are members of a very large family, whose members get together frequently forcelebrations and the like.

Interestingly though, no other family members have come forward, and the accused resides with a family,unrelated to him other than by friendship and perhaps romance. 32. I was concerned about Mr. Carter’s Criminal record and his seemingly exculpatory testimony in regard to it, notwithstanding hisevidence that he had pleaded guilty to every offence. However, the record in and of itself is dated, and there have been no convictions forsome 20 years. It is his ability, not his willingness, to supervise the accused in collaboration with Ms. Durand that is of great concern.

Heworks full-time and has his own family and family issues to deal with. The pledge of his house would be of little if any effect since hiswife is not a party to the pledge. 33. I am also not concerned about Ms. Durand’s willingness to supervise the accused. Again, it is her ability to do so in conjunction withMr. Carter that is concerning. She has not worked since 2006 because of severe “flashbacks” in relation to her being held up andkidnapped. Her 18 year old daughter, Amanda, her 11year old son, Dalton and her father all live with her, as the accused has been doingfor the past year.

She has her own family responsibilities and debilitating health issues. 34. It is also concerning that although Ms. Durand is fully aware - • of the accused’s criminal history and the serious criminal charges which he is now facing; and • that her daughter was arrested and investigated when the police arrested the accused and located all the items previously referred toincluding a loaded semi automatic sawed-off shot gun with more ammunition, Ms. Durand apparently has no qualms whatsoever about – • having her daughter continue her relationship with Mr.

De Finney; and • continuing to have him reside in her home with her family. 35. The evidence of both proposed sureties was that the accused is employed as a landscaper; yet neither of them had any idea by whomhe is employed.

36 . While, I do believe that the accused certainly needs counselling, constant supervision and mentoring, my responsibility is the protection of the public, which I do not find that this plan adequately addresses. I. DISPOSITION 37 . The accused has shown a lack of concern for court orders and the rights of the public. From everything that the police located during the execution of the search warrant in relation to the vehicle which he had been driving, it is evident that the accused was involved in a serious, ongoing crime spree at a time when he was on release for serious drug offences, and residing with Ms.

Durand. Having regard to all the circumstances of this case, I do not believe that Mr. De Finney would obey even a strict house arrest bail or that the two proposed sureties would be capable of enforcing it. 38 . Accordingly, I am not satisfied that the accused has met his onus on the secondary ground. Having made such a finding, I do not propose dealing with the tertiary ground. 39 . There will be an Order that the accused be held in custody until he has been dealt with according to law. P. Kowarsky Justice of the Peace