R. v. Miller, 2012 ONCJ 104

Citation: R. v. Miller , 2012 ONCJ 104 In the Ontario Court of Justice Toronto Region Metro North In the matter of Regina v Rohan Antonio Miller Before His Worship P. Kowarsky Justice of the Peace REASONS FOR JUDGMENT Judicial Interim Release Hearing Hearing: February 23rd 2012 Judgment: February 24th 2012 Counsel: Mr. J. A. Hannah-Suarez for the Crown Mr. A. Stansty for the Accused R. v. Rohan Antonio Miller A. OVERVIEW 1 .

This is an application for bail by 27 year old Rohan Antonio Miller who is charged on a seven count information with the following very serious offences, 6 of which are alleged to have been committed by him in association with two other males and two females on July 26 th 2011: • Robbery while armed with a firearm times 2 • Forcible confinement times 2 • Disguise with intent • Break and enter commit, and

• Fail to comply with Probation 2 . The four other accused were arrested shortly after July 26, 2011, whereas Mr. Miller was only arrested on or about February 18 th 2012. 3 . By virtue of the “Robbery while armed with a firearm” charges, the onus is reversed. Consequently, the accused is required to persuade the court on a balance of probabilities on all three grounds, that his pre-trial detention is not necessary. B. THE CASE FOR THE CROWN 4 . A précis of the Crown’s synopsis is as follows:

a) The residence located at 20 Boake Street, Toronto is near York University, and at the time of these offences, it was occupied by several students who rented rooms.

b) At around 4:00 am one of the tenants, Rudy Lamur, received a telephone call from a female called Tanya Campbell, requesting permission to visit him.

c) She came to the house. He opened the door. She was smoking a cigarette. After telling her to finish her cigarette before entering, he went back to his room.

d) Three men, wearing disguise, 2 of them brandishing handguns, the third one holding a large knife, swarmed into Mr. Lamur’s room. They pushed him onto the floor, and while one of the intruders held a gun to Mr. Lamur’s head, they demanded drugs. They tied his wrists, covered his face and ransacked the room.

e) They repeated this behaviour when entering the room of another tenant named Ari Gurkanlar, and subsequently went into a third room, which was that of James Gibson who was not there at the time.

f) After ransacking the house and stealing various items, the three men loaded the stolen goods into a waiting vehicle occupied by the two females involved, and thus made good their escape.

g) The two female accomplices were arrested shortly after the robberies, and provided inculpatory statements to the police, implicating themselves and the three male perpetrators. The police subsequently arrested two of the males, and located some of the stolen property in their possession.

h) On February 18 th 2012 Mr. Miller was located and arrested.

i) The police conducted a photo line-up, and the victim, Rudy Lamur, is alleged to have positively identified the accused Rohan Miller as one of the perpetrators of the armed robberies.

j) In addition, the police executed production orders in relation to cell phones which allegedly linked Mr. Miller to these crimes.

k) Neither the firearms nor the knife have been located.

C. THE BRAMPTON CHARGES 5. On February 9th 2012 the accused was arrested and charged with assaulting the mother of his 4-year-old daughter while she and herdaughter were both in their home. He was also charged with breaching his Probation Order. The Court in Brampton released Mr. Milleron a $5000.00 Recognizance with one named surety. D. THE ACCUSED’S CRIMINAL RECORD 6. The Crown tendered the Criminal Record of the accused, which he admitted for the purpose of the Bail Hearing.

The Criminal recordreflects the following entries: • 2008-08-03 Fail to comply recognizance - 1 day jail (6 months pre-trial custody) • 2009-04-20 1. Armed Robbery - 16 months incarceration + 14 months pre- sentence custody 2. Possession of a prohibited or restricted firearm with ammunition – 12 months custody concurrent 3. Unauthorized possession of a firearm in a motor vehicle 4. Disguise with intent. On counts 3 and 4 - 3 months incarceration on each conviction concurrent Plus Probation for 2 years and a mandatory weapons prohibition order under

section 109 of the Criminal Code. • 2010-09-01 1. Fail to comply with probation 2. Mischief over $5000 He was given a suspended sentence and 6 months probation on each count concurrent. E. THE CROWN’S GROUNDS FOR SEEKING DETENTION 7. The Crown is asking the court to detain the accused on the secondary and the tertiary grounds. Under section 515(10)(

b) of theCriminal Code, in order to justify the pre-trial detention of an accused, the court must find that his detention is necessary for theprotection and safety of the public, having regard to all the circumstances, including whether or not there is a substantial likelihood thatif the accused were to be released on the plan presented to the court, he would commit a further offence which would endanger thewelfare and safety of the community. F. ANALYSIS OF THE LAW 8.

It must be noted that the function of the Bail Court is not to punish the accused for crimes which he is alleged to have committed, butrather to assess the risk to public safety posed by his release on bail. If bail conditions can be crafted so as to reduce the risk of futuredangerousness to a reasonably acceptable level, the accused should be granted bail. 9. In R. v. Morales (1992), (SCC), 17 C.R. 74 Chief Justice Lamer, as he then was, speaking for the Supreme Court ofCanada, expressed the difficulty of evaluating “substantial likelihood” within the meaning of section 515 (10) (

b) of the Criminal Code,as follows: “While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exactprediction of future dangerousness is not constitutionally mandated.”

10. I am fully cognizant of the accused’s right under the Canadian Charter of Rights and Freedoms to the presumption of innocence, hisright to be granted reasonable bail as well as his right not to be deprived of his liberty and security except in accordance with theprinciples of fundamental justice. 11.

The abundant jurisprudence with respect to the accused’s Charter rights supports the conclusions that: • Imprisonment prior to trial should be 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. 12. The accused is facing very serious charges, which amount to a home invasion. In R. v. J.S., (ON CA), [2006]O.J. No. 2654, the Ontario Court of Appeal considered the meaning of a “home invasion”.

The Court found that although it is notspecifically defined in the Criminal Code, the term connotes aggravating circumstances in relation to a robbery, such as “the fact that thedwelling-house was occupied at the time of the commission of the offence, and that the person in committing the offence (

a) knew thator was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property”. 13. In my view, the robberies forming the subject matter of these proceedings fall squarely within the framework of a home invasion.The allegations strongly suggest that the home invasion was pre-meditated and that these victims were targeted. For students to beawakened in the privacy of their rooms at 4 o’clock in the morning, and then subjected to such horrendous violence is truly shocking. F. THE PLAN OF SUPERVISION 14. Mr. Miller’s aunt, Andrea Miller-Massey and his mother, Maxine Miller were proposed as sureties. Ms.

Andrea Miller-Massey is hissurety on his recent domestic assault and breach of probation charges out of Brampton. Two weeks ago the accused was released on aRecognizance of $5000.00 with conditions which included his residing with his surety. 15. Ms. Miller-Massey is willing to pledge a further $20,000.00 to secure the release of the accused on the current charges. She is 47years old and is gainfully employed as a laboratory technician in a hospital setting. She owns her home in which she has equity of some$340,000.00. Her place of employment is about a half an hour’s drive from her home.

She works on a rotational basis with fluctuatinghours as follows: 7:00 am to 3:00 pm; 11:30 am 7:30 pm and 3:30 pm to 11:30 pm. She is prepared to continue to have the accusedreside with her subject to a house arrest condition except when in the company of either surety or when going directly to and from andwhile at his place of employment at an auto-body repair shop in Brampton. 16. Mr. Miller’s 47-year-old mother lives alone in a rented apartment in Etobicoke. She is employed as a housekeeper in a Long-termCare Residential Facility, and works 4 days a week.

She signed bail for her son previously when he was facing armed robbery charges.However, under her watch he breached his house arrest condition, and he was located by the police outside of his residence at 2:00 am.When his mother returned home at 5:00 am after a night out, she failed to report her son to the police when she found that he was not athome. He was held in custody thereafter. Mrs. Maxine Miller is willing to pledge $5000.00, and will assist in supervising her son by wayof regular telephone communication with him and with the other surety.

Both sureties believe that the accused has matured and learnt hislesson from previous incarceration, and that he will now comply with the conditions of his bail. G. THE STRENGTH OF THE CROWN’S CASE 17. The court’s decision in this case hinges on two specific issues: • The adequacy of the proposed sureties insofar as their ability, not their willingness, to supervise the accused to an extent whichwould reduce the court’s concerns on the secondary ground to an acceptable level; and

• The apparent strength of the Crown’s case. 18 . Both proposed sureties are employed, and appear to be responsible women, who fend well for themselves. However, the mother lives in Etobicoke and works 4 days a week. The aunt’s hours are not consistent, and fluctuate significantly so that much of her time is spent at her place of employment, which is a half an hour’s drive from her home. The concern is that even if the accused were to be released on house arrest, he would effectively be left to his own devices without proper supervision. 19 .

Consequently, although both proposed sureties are clearly willing to use their best efforts to supervise the accused and keep him out of trouble, it would largely be left to him alone, and they would have to trust that he would comply with his bail conditions. Past conduct is generally indicative of future behaviour. The accused’s history of involvement with the criminal justice system reveals a failure to abide by bail and probation orders, which does not provide much confidence in his ability to be trusted. 20 .

The secondary ground mandates the court to take into account all the circumstances in assessing whether the accused should be released. “All the circumstances” is an all-embracive term, which includes numerous factors in each case. 21 . In relation to the apparent strength of the Crown’s case, defence counsel contends that the means of identification used by the police in relation to Mr. Miller are such as to inject substantial weakness into the Crown’s case. Mr.

Stansty submits that there are sparse details in regard to the inculpatory statements, the photo line-up and the execution of the cell-phone production orders. Moreover, counsel suggests that there should be major concern as to why the co-accused were arrested very shortly after the commission of the offences, as opposed to Mr. Miller, who was arrested many months later. 22 . Needless to say, as always, there will be triable issues for consideration by the trial court in due course, and these concerns may well be raised at trial.

These are some of the difficulties facing the bail justice at such an early stage of the criminal proceedings when disclosure, which may shed significant light on these issues, has not yet been provided. 23 . I cannot ignore the accused’s antecedent criminal behaviour, which often provides a reliable precursor of future dangerous behaviour and recidivism. In 2009 he was found guilty of armed robbery, possession of a restricted firearm with ammunition, unauthorized possession of firearm in a motor vehicle, and disguise with intent.

The disposition was: 16 months incarceration plus 14 months pre- sentence custody in addition to a further 18 months of custody to be served concurrently, probation and a mandatory weapons prohibition order pursuant to

section 109 of the Criminal Code . 24 . It is extremely troubling and worrisome that now, some two years later, after serving such sentences, he again comes before the criminal courts, charged with serious home invasion offences. 25 . Notwithstanding the existence of triable issues in relation to the identification techniques used by the police, at this early stage of the criminal justice proceedings, I find that the Crown’s case is rooted in a strong evidentiary foundation. H. THE ADEQUACY OF THE PLAN OF SUPERVISION 26 .

If the plan of supervision had been one in which a substantially stronger level of supervision was incorporated, I am of the view that his pre-trial detention would not be justified. However, from the evidence before me, I do not find that the release plan is adequate in all the circumstances of this case, and that if he were to be released on the proposed plan, there is a substantial likelihood that he would commit further offences which would endanger the welfare and safety of the community. 27 .

When considering “all the circumstances”, I would be remiss in my responsibility as the presiding judicial officer if I failed to take into account the epidemic of gun violence which plagues the Greater Toronto Area. People are gunned down daily. They are wounded and killed, lives are destroyed, families are torn apart and the community is terrified by this senseless use of illegal firearms in the commission of criminal offences. I. DISPOSITION 28 . In conclusion, for all of these reasons, I am persuaded that the accused has not met his onus on the secondary ground, and there will be a Detention Order. 29 .

Having come to this conclusion, I do not intend to address the tertiary ground. P. Kowarsky J.P.