R. v. Suarez, 2018 ONCJ 448

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code . This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 517. ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD —

(1) If the prosecutor or the accused intends to show cause under

section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (

a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (

b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) FAILURE TO COMPLY — Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on

summary conviction. CITATION: R. v. Suarez , 2018 ONCJ 448 DATE: June 5, 2018 Between Her Majesty the Queen and Ryan Suarez Ontario Court of Justice G. Manno, J.P. Heard: May 24, 25 th 2018 Bail Hearing Judgment filed: June 5, 2018 Crown: J. Devuono Counsel: B. Elzingacheng Applicable Statutes : Criminal Code , R.S.C. 1985; c. C-46, as amended. (Hereinafter CCC or C.C.C .). Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 being

Schedule B to the Canada Act 1982 (U.K.) 1982, C. 11. (Hereinafter ‘ Charter ’ or ‘ the Charter’ ). Cases Considered: R v. A.D ., [2002] O.J. No. 4534 (Ont. S.C.) . R v. Alam , [2005] O.J. No. 3941 .

R v. Antic, 2017 SCC 27 , [2017] 1 S.C.R. 509. R v. Beason, [2015] O.J. No. 5706. R v. Dang, 2015 ONSC 4254. R v. David, [2006] O.J. No. 3833 (Ont. S.C.). R v. Gerlach, [2018] O.J. No. 830. R v. Hipplewith, [2006] O.J. No. 5057. R v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. R v. Normone, [2014] N.J. no. 197. R v. Taylor, [2008] O.J. No. 6033. R v. Tunney, 2018 ONSC 961. R v. Villota (2002), (ON SC), 163 C.C.C. (3d) 507, [2002] O.J. No. 1027 (Ont. S.C.). R v. St-Cloud 2 S.C.R. 328.

Charges before this Court: There are three Informations before the court with charges under the Criminal Code of Canada: Information #3067 dated March 13, 2018 charging: 239 (1)(b); 91(1); 92(1); 86(1); 95(1) X 2; 90(1); 91(2); 94(1); 108(1)(a). Information #3213 dated March 13, 2018 charging: 91(1) x 2; 92(1) x 2; 86(1) x 4; 95(1) x 4; 90(1); 96(1) x 2; 91(2) x 2; 94(1) x 2;88(1) x 2; 354 (1) (a); 108(1)(a). Information # 3212 March 15, 2018 charging: 4(1) CDSA, Controlled Drugs and Substances Act.

Overview and Crown’s Position [1] During the early hours (12:48 a.m.) on March 13, 2018 at 134 Fleetwood Crescent, Brampton police and paramedics were calledand attended to investigate a possible shooting. When they arrived, they found the alleged victim with a gunshot wound to his arm andhis chest with an unspent round of ammunition on the floor nearby. After interviewing the residence of the upstairs apartment in thishome as well as the other witnesses on the scene police form reasonable and probable grounds to believe that the accused was theshooter and the alleged victim was a basement tenant (Mr.

Peralta) in the home belonging to the accused’s mother and step father. Fromwitness accounts they piece together the following narrative. Earlier, the accused had asked his parents to terminate the lease held by thealleged victim so that the accused himself could move into the apartment. They refused. The accused allegedly went out to his vehiclein the driveway to retrieve what they believe was a handgun, then returned to the basement apartment where the entrance was commonand laundry facilities were shared, and found Mr. Peralta just out of bed going to the kitchen.

The accused after exchanging some smalltalk, took out the handgun and shot Mr. Peralta. The accused then escaped in his vehicle, a white Toyota. [2] The accused’s stepfather and later arriving paramedics found Mr. Peralta on the floor bleeding. He implored them to “pleasedon’t let me die” presumably believing he was moribund. Mr. Peralta (the alleged victim) was transported to hospital. He was laterreleased but medical authorities could not extricate the bullet, which went through his arm and lodged in or near his spine.

According tothe latest reports, the alleged victim is partially paralyzed and no doubt has suffered some emotional/mental trauma as a result of theshooting. At some point during the aftermath, the alleged victim told the upstairs landlords and the police that he had no idea why hewas shot, knew who shot him but didn’t even know his name or ever engaged in any meaningful conversation with him. [3] Witnesses later told police that though they did not witness the shooting they believed they saw Mr. Suarez, the accused attendhis vehicle in the driveway and return to the house with something in his hand.

These witnesses along with the upstairs owners of thehome believed that the accused shot Mr. Peralta. Though there may be conflicting ideas as to what was said between the accused andthe alleged victim just prior to the shooting, the complainant alleged that the accused called him demonic or complained that he did notlike the way he looked at him. After he made this statement the accused took out what was believed to be a homemade handgun andshot Mr. Peralta causing serious injury. [4] Later, when the police located and detained Mr. Suarez, he was given his rights to Counsel, cautioned, and questioned.

In asearch incident to arrest, the police locate a handgun in the accused’s jacket pocket. A subsequently obtained judicially authorized searchwarrant for his vehicle was granted and under a tarp on the floor of the motor vehicle, police found 2 sawed-off shotguns (12 gauge), arifle (22 calibre Ruger with 21 rounds in the magazine and a significant amount of live rounds both chambered in the other weapons andon the floor beside the guns. A photo of this evidence is located in Exhibit 1 in this bail hearing. In the console of the vehicle they alsolocated and seized 35.3 grams of marijuana.

The rifle described above was reported stolen from a British Columbia address in 2010. [5] Further investigation of the vehicle revealed that though it was owned by the accused and his biological father to whom he wasestranged, the accused was the sole driver of the said vehicle. The family admitted that the only reason the father was a registered ownerwas to effectively reduce the insurance premiums for the vehicle. Otherwise, those premiums would have been significantly higher ifthe vehicle was registered solely in the name of the Accused.

[ 6 ] Once police questioned the accused at the station, the accused told police that the gun in his pocket was not his and that a masked man entered the apartment after and behind him, hit him on the head rendering him unconscious, then shot the alleged victim and then planted the handgun into Mr. Suarez’s pocket. There was no physical evidence to support this theory and no injury to Mr. Suarez’s cranium. Later his version of the events took a turn and he admitted shooting Mr. Peralta but claimed it was in self-defence as he believed Mr. Peralta was moving towards him.

Apparently these statements were all recorded on police video and would be accessible to Counsel as part of the Disclosure. In the meantime, the alleged victim told police he is able to pick the Accused out in a line-up if necessary.

Based on the videotaped statements made, the eyewitness statements, the willingness and capacity of the alleged victim to give viva voce testimony and the location of the weapons and other forensic evidence not disclosed in this hearing, the police charged the Accused with 33 counts under the Criminal Code and one count under the CDSA on three separate Informations provided to this Court. [ 7 ] The Crown told the Court that the attempt murder, 239(1) (

b) charge is a reverse onus offence and given the absence of other outstandings and criminal record, the balance of the 33 counts are Crown Onus charges. The Crown asked the accused to show cause on the reverse onus charge and they were prepared to show cause on the crown onus charges before the court. [ 8 ] The defence’s position was that the accused is releasable under a strict four surety, house arrest plan, including curfew and the usual conditions one would expect to see on charges involving drugs and guns.

During the balance of the hearing, the court was able to hear testimony from all four proposed sureties. [ 9 ] The first surety, the accused’s girlfriend Ms. Sarai Medina Valencia , is also the mother of his 19-month child. She is a 25-year- old woman with no criminal antecedents or outstandings. She resides at 10 San Romano Way, unit #911, a three-bedroom unit with her mother and father, her 23-year-old brother, and her daughter. The accused was a frequent visitor and on some occasions stayed over. This unit is located in the Jane-Finch corridor of Toronto, which is known to be a high crime area of the city. Ms.

Medina Valencia offered 24/7 supervision or coverage for the bail and wanted the Accused at home at all times. She wished him to be under house arrest and to not have any contact with anyone outside the family. Counsel had also suggested that his movements in Peel be restricted only permitting him to be in the region for his legal matters which would be carved out as specific exceptions to the rule. Ms. Medina- Valencia described the accused as someone who is extremely jealous, is prone to fits of jealousy, is paranoid about the neighbourhood they reside in and as of late, has not showered.

She believed he was suffering from Depression. She added that at 12 years old, he was living with his biological parents who were constantly arguing and when the break up was imminent, they abandoned him as collateral damage in a rapidly deteriorating and dysfunctional relationship. Mr. Suarez was reared more by his extended family (aunt) than by his own parents. She described Mr. Suarez in these terms but admitted having no medical or psychological training. The accused had not been to see a doctor for a consultation and/or assessment. [ 10 ] The Second surety, Mr.

Renee Medina is the biological father of the first surety above, Ms. Medina-Valencia. The Spanish interpreter for this hearing assisted him. Mr. Medina is a 60 year old permanent resident originating from Ecuador. He has been in Canada for 27 years, has no criminal record and resides at the same address, 10 San Romano Way #911 in Toronto. He works as a cleaner most evenings where he leaves for work at around 3:30 p.m. returning at about 5:30 a.m. each day and sleeps to about noon. He goes to and from his job using public transport.

He believed the accused to be non-violent and said he would stand as surety even if his daughter’s relationship were to end with the accused. However, he also described his relationship as superficial and never moving past pleasantries. He speaks Spanish and the accused speaks only English, which may, in part, have impeded long discussions. The relationship could best be described by the idiom “ like ships that pass in the night .” [ 11 ] Despite his limited knowledge and contact with the accused he said he observed the accused and his daughter always arguing, that Mr.

Suarez was not ‘calm’ and his fits of anger were fueled by his jealousy. He admitted that in 2016 there was an argument that got so bad between his daughter and the accused that police were called to the scene. Ms. Medina-Valencia told police that he assaulted her but later withdrew that statement at the police station. She argued that she was somewhat convinced to do so by the investigating police that evening. Mr. Medina was unable to provide any other details regarding this incident since he and his wife had been out for the evening and when they re-entered the home, they found the police in attendance.

Again, he believed from what little information given to him by his daughter, that the domestic call was fuelled by the accused’s ongoing jealousy. [ 12 ] Mr. Medina, does not earn very much at this job and has no assets to speak of. He was willing to pledge about $1000 on a non- deposit basis to help secure Mr. Suarez’s release. [ 13 ] The third surety that gave evidence was Ms. Nancy Marianna Suarez De Sweenie the accused’s biological aunt on his father’s side. She told the court that she and her 89-year-old husband reside at 455 Centennial Road near Finch Ave. in Toronto.

She described this as a 10-minute walk from San Romano Way. She was proffered as the ‘money’ strength surety in this release plan. She and her husband own and live in a condominium and have no mortgage registered on the property. Her husband knew she was pledging their home as an asset for the bail. She is well meaning and was integral in the accused’s life as he was growing up. She had maintained contact with him on a weekly basis right up to just days before in the incident.

Though she is retired from holding a cleaning job and a factory job position, her current unpaid occupation is taking care of her infirm husband who she described to be suffering from non- specific prostate issues as well as Dementia. She is a Canadian citizen and was willing to pledge as much as was necessary to effect her nephew’s release from custody. [ 14 ] The fourth and final surety presented to the court was Marizza Valencia , the biological mother of the first surety Ms. Medina- Valencia and wife to the second surety proposed Mr. Medina above. Ms.

Valencia is a permanent resident and works as a domestic cleaner. She resides with her husband at the 10 San Romano address. Her hours of work are from 9 – 2 p.m. or 9 – 3 p.m. on Mondays, Wednesdays and Fridays. She normally takes public transportation to her job located about 20 minutes away from her home address. She admitted that when her daughter was dating Mr. Suarez she never talked to him nor knew anything about him. When she ‘read the signs’ to discover her daughter was pregnant, Ms.

Valencia reached out to the accused and in her words, “carefully communicated with him.” She said she was ‘careful’ so as to not affect or interfere with their romantic relationship. She admitted never seeing the accused being violent with her daughter but that they argued a lot. In this plan of release she offered supervision on the days and evenings she is not at work. She also wished him to see a medical professional. She had no assets to pledge and earns approximately $1500 per month in net income. Her son living at the same address is unemployed and the family is supporting him at this point. Ms.

Valencia knew

none of Mr. Suarez’s friends and she knew he lost his job in January of this year. She knew nothing of the Accused’s employment. Her major source of information about the accused comes from her daughter. She said that she was unaware that the accused had planned to move out of that address for good to be on his own. This is contrary to the statement Mr. Medina made on the stand that he was aware that Mr. Suarez was planning to move out on his own. Though she lives paycheque-to-paycheque Ms. Valencia added that if the money were to be estreated, she would borrow money from her family to satisfy the debt.

She also told the court that her daughter is on social assistance but pays $600 per month to help with household expenses. Under questioning she admitted that she could manage without the monthly contribution if necessary. [ 15 ] The analysis of these sureties is provided below. ANALYSIS: [ 16 ] Section 515(10) gives guidance to the bail courts on what factors one should examine to determine risk and to justify a detention of any individual who is charged with an offence under the Criminal Code of Canada (CCC). Under the Charter the accused is also entitled to the presumption of innocence and to reasonable bail.

The grounds invoked in this hearing are the secondary and tertiary grounds. 515 (10) (b), the secondary grounds state; Where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, 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. [ 17 ] Section 515(10) (

c) of the CCC deals with the tertiary grounds, articulated as follows; If the detention is necessary to maintain the confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the Crown’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that 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, minimum punishment of imprisonment for a term of three years or more. [ 18 ] Let’s discuss the secondary ground concerns first.

It is generally accepted that one of the key indicators that helps to predict future behavior is looking at one’s past behavior including whether or not the accused has a criminal record. The courts may also view other outstanding charges as a factor. In this particular case, and to the accused’s credit, there is no criminal record or other outstandings to allege. However, just because one is absent criminal record does not automatically imply a release.

The court must examine all of the circumstances including consideration if released does the accused represent a danger to the alleged victim, any of the witnesses or to the public at large. What appears concerning to the court is that this individual allegedly shot another individual who he barely knew and in the process of engaging in such violent behavior used a firearm for which he was not licensed to carry or use.

Though this occurred in a basement apartment his wife, daughter and other uninvolved individuals were upstairs and any stray bullets fired could have potentially put them in peril. [ 19 ] Despite the fact that the family expressed concerns that he was potentially mentally unfit, it is not clear to this court what occurred that early morning. The parties could speculate and come to the conclusion that there was no rational motive or excuse for his alleged actions. One might conclude he was mentally ill and having a psychotic episode.

During the hearing we heard he might have suffered from depression, anxiety and paranoia over the family being in the Jane and Finch area, from crippling jealousy. Later he was said to refer to the alleged victim as ‘demonic’ before he shot him. However, none of us are qualified medical professionals and it was difficult for the court to accept this as fact without the benefit of an assessment or intervention from a medical health professional. That was and is absent to this point. [ 20 ] Equally possible is that when Mr.

Suarez approached his mother and stepfather and asked them to evict the basement tenant so that he could move into that space. They refused. He then allegedly attended to his vehicle a short time later, pulled out the handgun and attempted to murder the alleged complainant. The court heard evidence at that juncture that he exchanged some pleasantries with the alleged victim, then pulled out a gun and before shooting, complained that he did not like the expression or the look of the alleged victim. [ 21 ] Just as possible is that Mr.

Suarez was involved in some criminal enterprise that gave him access to a number of illicit weapons and ammunition found in his vehicle-one that only he drove. Both the rifle/shotguns and the handgun used in the incident were loaded and ready to be fired. Could this have been the result of a private altercation, the result of his arms dealing or simply part of the psychosis his family alluded to that fed his paranoia. We just don’t know. However these are, in part, the circumstances surrounding the commission of this offence. Trial Courts are loathe to speculate and should resist the temptation.

We only raise these scenarios to help us determine the possibilities that feed into the risk analysis and not in terms of generating a verdict of guilty or not guilty at this stage. [ 22 ] Also to be factored into the consideration is the fact that the alleged victim after being shot, thought he was moribund and asked his landlord and the paramedics to please not let him die. He repeated that he did not understand why the person shot him and didn’t even know his name. He was only able to confirm that it was one of the two young male sons of his upstairs landlord.

Though he told police he did not know the accused by name he had seen him on previous occasions and was confident and competent at being able to identify him by face. The alleged victim made a partial recovery in hospital however, the bullet that went through his arm and lodged in or in proximity to his spine could not be surgically removed. Along with any emotional or mental trauma he might experience, he is partially physically paralyzed on one side of his body though the full extent of his injuries is still not known.

I will discuss the strength of the crown’s case in more detail in the tertiary ground discussion below.

[23] However, whether this accused was prone to psychosis or had full mens rea and acted upon his motive and plan will be left for acourt of competent jurisdiction to assess. In both circumstances, it is apparent to this court that he represents a danger to the public andto the alleged victim despite his absent criminal record and given all of the circumstances, we do not find Mr.

Suarez to be releasable andmust be detained on the secondary grounds most notably on the attempt murder, reverse onus charge before the court. (CCC 239 (1) (b)) [24] To add, this court believes that pre-trial detention should be rarely imposed. We recognize the rights he has as a presumedinnocent individual. On a practical note, it is also better to appear in a trial court out of custody and where Counsel has full access tohis/her client, the accused.

The court is also well aware that in complex cases involving a complex crown brief, matters can commandlonger periods of time before they can be resolved or set down for trial. This means the accused could face many weeks if not months inpre-trial detention. However, in this post Jordan environment, the court remains optimistic that the parties will move expeditiouslytowards resolving the matter or securing the earliest possible trial dates. [25] It is regrettable that we cannot offer Mr. Suarez the benefit of that doubt today for the reasons mentioned above and for those weare about to articulate below.

It is the Court’s responsibility to ensure that a clear pathway of reasoning to either detaining or releasing anindividual is given to the accused, Counsel and the Crown. It is also helpful for any reviewing court. The court in this case agrees withthe crown that the attempt murder charge is a reverse onus charge and that the accused has not met their burden of justifying a release. [26] In general, this court also sees a number of gun-related and drug charges in these relatively busy Brampton bail courts. Giventhat the balance of the charges are crown onus.

Given that there would be a very restrictive plan, the clear absence of criminalantecedents and absent the attempt murder charge, the court might have reached an entirely different determination. [27] Beyond the issue of whether or not Mr. Suarez is in fact releasable under any plan, the sureties themselves as presented to thecourt do not entirely satisfy the court and the risk that the court sees given all else and that factor will be discussed below. [28] We turn next to the tertiary ground concerns. The strength of the crown’s case [29] This is an exceptionally strong crown case.

Post shooting the crown is able to proffer a number of witnesses that could place theaccused at or near the shooting and can attest to hearing voices and then seeing Mr. Suarez exiting the house, moving towards his car inthe driveway and returning with a handgun. The alleged victim made a number of statements that could have been used as a type ofdying declaration exception to the hearsay rule when he thought he was moribund.

However, the court recognizes that given subsequentvideo evidence, confession evidence as well as the recovery of the alleged victim allowing him to give viva voce evidence at trial, theexception to the hearsay rule is not likely to be aired at trial. The police investigation inter alia found the offensive handgun in theAccused’s jacket pocket. A subsequent search warrant gave them access to the accused’s vehicle where, under a tarp, they locatedmultiple ‘long’ guns (rifle and shotguns) with a number of live rounds in the weapons themselves and on the floor next to the weapons.

The police also found 35.3 grams of marijuana in the console of the vehicle. The crown established that Mr. Suarez was the only personwho drove and had carriage of the vehicle in question. [30] After caution, at the police station, when asked about the gun in his pocket, the accused proceeded to tell them that an unknownmasked man, hit him on the head from behind then shot the alleged victim and planted the gun on his person. Later under furtherexamination and questioning, Mr. Suarez admitted to being the shooter. Mr.

Suarez also told police that he had lent his car out earlierand only got it back the day of the offence. His versions he gave police were changeable and to them lacked evidence and veracity. Heshowed no evidence of head trauma, any bumps or bruises nor could he provide any detail as to the name of the person he allegedly lenthis car to. The version given to police by the alleged victim Mr. Peralta did not mention or include the presence of a third person. [31] Counsel proffers R v.

Dang, 2015 ONSC 4254 (‘Dang’) to the court as guiding common law to suggest that despite there beingan attempted murder charge and the possible implication of gang violence playing a role, Mr. Dang was also absent criminal record andwas released under a strict plan of supervision. The distinction that the Crown makes is that the evidence in Dang was largelycircumstantial and the crown’s case was not as strong as in this particular case. In that case there was a conspicuous absence ofidentification evidence, no DNA, and weapons that were alleged were never recovered.

As well, there were three shooters some of whowere masked. One of the shooters was the alleged victim during this gun battle. I am persuaded by the Crown that Dang has limitedcomparison value to the case at bar. The balance of the cases provided by the Crown also persuade the court that the tertiary groundsapply and that detention is to be seriously considered given of all of the factors including public safety. These other cases are namely; R v. St-Cloud, 2 S.C.R. 328; R v. Gerlach, [2018] O.J. No. 830; R v. Alam, [2005] O.J. No. 3941; R v. Taylor, [2008] O.J. No. 6033; R v.Hipplewith, [2006] O.J. No. 5057; R v.

David, [2006] O.J. No. 3833; R v. Normone, [2014] N.J. No. 197; R v. Villota (2002), (ON SC), 163 C.C.C. (3d) 507; R v. Tunney, 2018 ONSC 961; R v. Antic, 2017 SCC 27 , [2017] 1 S.C.R. 509;and R v. A.D., [2002] O.J. No. 4534. [32] The last four cases above, Villota, Tunney, Antic and A.D. were introduced by the Court as applicable as they address the bailladder principles that the court should consider.

Villota decided by Justice Hill inter alia said that the onus for each of the charges shouldbe considered and to resist the temptation to simply consider all of the charges on a multi-charge Information as either reverse onus orcrown onus. In other words, each charge should have its own onus. [33] Can the strength of the crown’s case weaken at trial or in any of the preliminary hearings that may occur between now andthen? Of course that may be true. Witness statements may ‘weaken’ and there may be potential Constitutional issues raised.

However,though the issues are not evident at this stage, to be fair one must allow for the possibility. Our current analysis is restricted to perceivedrisk under 515(10) and not determining guilt or innocence.

(ii) The gravity of the offence [ 34 ] Whenever guns are involved, especially when the weapon has been discharged the situation can turn grave very quickly. The alleged victim was shot and thought he was dying and begged those first on the scene to ‘please don’t let me die’. Even though he survived the gunshot, the alleged victim has a lasting injury, that being paralysis as well as emotional/mental trauma that normally accompanies a shooting. In R v. J.G ., [2005] O.J. No. 4599 (see R v.

Taylor page 5, para. 27), the court expressed concerns about gun violence, a sentiment that appears throughout the common law. “ The issue of guns in our community, especially the possession of guns by young men, has been at the forefront of concerns regarding issues of public safety in this city of the last number of months.

Citizens of Toronto are understandably appalled at what appears to be a proliferation of handguns in the city…individuals to use those handguns, very often in indiscriminate and horrifying ways, that have resulted in dreadful consequences for entirely innocent people.” [ 35 ] It is clear to this court and to others that guns in the wrong hands are a public safety concern and can lead to grave consequences.

General and specific deterrence principles in sentencing must reinforce that concern. (iii) The circumstances surrounding the commission of the offence, including whether a firearm was used. [ 36 ] Indeed the circumstances surrounding this offence would include such factors as the accused’s age, the presence or absence of criminal record, whether or not the accused is part of a criminal organization, the status of the victim and the impact on society of any injuries, physical and/or mental condition of the accused etc. [ 37 ] In St-Cloud , para. 88 Justice Wagner said: “ In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.” The emphasis on “ usually ” rather than saying “ shall be ordered ” is there for good reason.

Justice Wagner reminds the courts to keep all of the factors in mind and despite their pressure and in some cases, their overwhelming certainty, one still must balance and consider all of the factors and circumstances before coming to a decision whether to release or detain. [ 38 ] This young man is absent criminal record though according to the witnesses his mental and/or emotional state may be at issue. We cannot rely on any medical diagnosis, as it is conspicuously absent in this hearing.

The accused’s behaviour appears unusual, perhaps some would say strange however the only thing we can say with certainty is that it is a factor which will be explored in more detail by both sides as the case progresses. [ 39 ] Alternatively, one could also assume that the accused knew what he was doing, there was some forethought into planning the crimes, he had motive and opportunity and somehow was able to secure access to a number of very dangerous street firearms and live ammunition.

Considering the state in which these weapons were found many would come to the conclusion that they were ready to be used by the holder/owner to carry out

an act of violence. [ 40 ] In either scenario, the alleged victim in this case (as well as the public at large) was put at risk and makes one wonder if the same would be true should he secure his release. [ 41 ] Another circumstance the court considers relevant is that fact that Mr. Suarez was not considered cooperative post the incident. He fled the scene and had to be captured by police.

When we was in fact captured, some would argue that he proceeded to obstruct or impede their investigation by lying about what happened and inferring that a masked man planted the gun in his pocket or that he lent his car to an unknown person and just got it back complete with all of the weapons and live rounds. [ 42 ] Additionally, his response to situations did not seem to match the danger he was confronted with. In one of the versions he told police, he argued that the alleged unarmed victim was moving towards him and was completely justified in taking out a handgun and shooting Mr. Peralta.

Even an officer would be suspiciously questioned post a shooting incident if he/she discharged his/her weapon injuring or killing an unarmed member of the public. Use of a weapon where no reply weapon is alleged would potentially be deemed as excessive use of force in response to the given situation.

For whatever reason, the accused exercised bad judgment in allegedly shooting an unarmed individual – a person he barely knew and one who was quite vulnerable having been in bed that morning and in the privacy of his own apartment. [ 43 ] The court must also consider the potential trauma and lasting effects faced by the alleged victim in this case. We are told he suffers paralysis on one side of his body which will undoubtedly affect his ability to do any physical task, potentially hold a job, to endure many hours of rehabilitative therapy and perhaps experience lasting chronic pain.

This will change the alleged victim’s life and to a certain degree his injuries and recovery will also potentially be a tax on the balance of society and the medial system as he embarks on his road to recovery. [ 44 ] In Dang , Justice Trotter at para. 55 said, “ No matter how serious the allegations, and notwithstanding the potential penalty the accused may face, detention based in a case weak tends to undermine confidence in the administration of justice, not maintain it.” However in Taylor , Justice Trotter argued the following, “ …particularly the strength of the evidence that presently exists against Mr.

Taylor confidence in the administration of justice would be undermined by his release.” The court believes that the strength of the crown’s case compares more with Taylor rather than Dang.

[ 45 ] Finally, we believe that the discharge of that weapon at a time when households are in bed in the privacy of their homes to be an aggravating circumstance. There were people upstairs in the household when the accused allegedly fired the weapon. Other uninvolved people could have been injured by one of those stray bullets. A reasonably informed and rational public not prone to hyperbole would conclude that such a person should be separated from the balance of society.

Those same people might potentially lose faith in a justice system that would permit such an accused to be released back into the community. (iv) The fact that 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, minimum punishment of imprisonment for a term of three years or more. [ 46 ] Upon conviction, attempt murder using a firearm would justify a period of incarceration of at least 3 years.

The existence of aggravating circumstances and other charges raise the possibility of a longer term of incarceration. Mr. Suarez has 34 charges before the court involving multiple loaded firearms, attempt murder and a possession of marijuana charge. Unless there is some type of NCR defense raised, or unless the crown’s case was to weaken considerably, one might reasonably expect the above jail term to apply during sentencing. Analysis of the Surety Evidence : [ 47 ] The court found that all four sureties presented were well meaning and left the court believing that they had Mr. Suarez’s best interests at heart.

The first surety, Ms. Medina-Valencia, his girlfriend was the surety most invested in Mr. Suarez’s life and release. It is apparent to this court that the balance of her family, the other sureties, were rallying behind their daughter either for her sake and/or for his 19-month child. Having said that, it was abundantly clear that Mr. Suarez was collecting guns in secret and was hiding any possible criminal activity from the family. The inability of the family including Ms. Medina-Valencia to get the Accused some mental health intervention also speaks volumes. Their relationship could be described as tempestuous.

The frequent arguments, fits of jealousy and the constant disappearing of Mr. Suarez post-argument were all hallmarks of their relationship. Interestingly too, post arrest, the accused never asked his girlfriend to be a surety. She came to that decision on her own. [ 48 ] The fact that he had lost his employment in January and had the strain of financial obligations as well as the challenges one might endure from having to live in a small apartment with one’s in-laws can also add to the strain. The court was left wondering if this is a healthy environment to be placing the accused back into.

No one can attest to whether or not Mr. Suarez has his own acquaintances and/or friends and it seemed strange to the court that this surety asked the court to impose a condition that the accused, upon release, have no outside contact with anyone not considered family. This was an odd condition to request and one that gave the court some pause. [ 49 ] The court learned that this proposed surety visited the accused in jail but not once asked him about the allegations. From a financial point of view, this surety is on social assistance and taking care of a 19-month old child. She has ‘enough on her plate’.

The court sensed that she was conflicted. In 2016 when police were called to a potential domestic where she claimed to be assaulted by the accused, she later went to the police station to retract the assault allegations. What is known is that she was the one who called the police. [ 50 ] Mr. Renee Medina, the second proposed surety had no knowledge of the accused and admitted to barely speaking to him. The idiom “ we are like ships that pass in the night ” comes to mind when the court listened to his evidence. He lives paycheque-to- paycheque and has very limited communication with the accused.

This is in part due to the fact that Mr. Medina only speaks Spanish and the accused, only English. His major source of information regarding the accused comes mainly from his wife and daughter and from his own limited observations. His nighttime work hours and daytime sleep

schedule combined with all of the limitations mentioned above do not make him an ideal surety. [ 51 ] The third surety Ms. Suarez De Sweenie, the accused’s biological aunt on this father’s side came forward as surety. The court was told that this particular surety was the only stable parental figure in the accused’s life as he was growing up. His own mother and father abandoned him while he was still a pre-teen. She is hard working and well meaning. However, she is not the residential surety being proposed and has been proffered to strengthen the money guarantees for the no-deposit bail. Her hands are full.

She cares for her infirm husband with the help of a visiting nurse and says she lives only a 10-minute walk away from the suggested home Mr. Suarez would be living in. Her plan is to visit him twice a week but that she admits that it may have to be more frequent to maintain good communication with the other sureties. The court is not as concerned with monetary strength choosing instead to be comforted by capable, round the clock supervision. It is difficult to speculate what part or role this surety would play in that daily supervision not being in the same household.

As well, during cross-examination, her estimates of time and visits with the accused appeared to vary causing the crown to believe that she was changing her story on the stand. [ 52 ] The final surety, Ms. Valencia has been a surety before for her brother under domestic related circumstances. However, Ms. Valencia appeared to refine her answers upon cross-examination by the Crown. This led to some confusion on the courts part and left the court feeling as though she was being evasive, perhaps defensive with respect to some of her replies and her recollection of time frames.

She and her husband really do have a very superficial relationship with the accused but her answers left the crown doubting her veracity on the stand. Additionally she said she was not aware of the accused’s intention of leaving the home and finding his own place. Previously her husband Mr. Medina told the court he had heard that the accused was planning to do just that. What the court was told and believed was that his information came from his wife and his daughter. He could not communicate with the accused.

This left the court wondering which of these two proposed sureties was mistaken or perhaps not telling the truth. Conclusion [ 53 ] Despite the dictum in Tunney and Antic , Counsel approached the court with a plan that would move this accused (absent criminal record), immediately up the bail ladder to its highest form of release, a four-surety plan with full house arrest and with other very onerous conditions. Such a plan would potentially suffice if, and only if, the 239(1) (

b) charge before the court was not in evidence. In future

should that count be withdrawn or should circumstances change so that counsel can mount a 520 application and have the matter reviewed for a change in circumstance and/or alleging this court committed errors in its approach a release plan may not be out of the realm of possibility. The Brampton bail courts have seen their fair share of gun related offences and drug charges. It is this court’s obligation to show the Crown, Counsel and any reviewing court the ‘clear pathway’ to our decision. Ordinarily, all else being equal, and in the absence of the 239(1)(

b) charge using a firearm and creating serious injury, this individual might be releasable on the balance of the charges before the court. [ 54 ] In this particular case given all of the allegations, the reverse onus on the 239(1) (

b) charge, the significant risk to the alleged victim’s safety as well as to public safety and to maintain the confidence in the administration of justice, Mr. Suarez is regrettably detained on both the secondary and tertiary grounds. [ 55 ] We will now canvas return dates from both the Crown and Counsel. G. Manno Justice of the Peace Written reasons distributed to the parties and filed with the court June 5 th , 2018