R. v. Bennett
Ontario Superior Court of Justice
Toronto, Ontario
W. Low J.
November 29, 2005.
You never give up fighting for a client as long as there are avenues of appeal. This case shows what happens when you do not quit. I later got all of the charges withdrawn against Mr. Bennett and my firm then helped him win the larget possible award available from the Criminal Injuries Compensation Board.
Application by Bennett for review of decision refusing to grant bail — Bennett was charged with attempted murder — Justice of the Peace refused to grant bail — Judge refused to vary order at bail review hearing — A surety became available to Bennett at the bail review hearing — HELD: Application adjourned — Reasons issued by Justice of the Peace for refusing to grant bail did not clearly present logic, principles applied or criteria he considered in rendering decision — As Justice of the Peace’s decision opaque, matter required hearing de novo at bail review hearing — Material change of circumstance at bail review hearing, as additional surety came forward — Crown’s case weak — Theory of Crown’s case conflicted with evidence — Bail review hearing judge erred in failing to consider strength of Crown’s case
Counsel:
Mr. Atkinson for the Crown
Mr. Rusonik for the defence
RULING
1 W. LOW J.:– The Crown and defence are ad idem that I have jurisdiction to review the order of my brother, Hamilton J., and to vary it if that decision was clearly wrong. I have been referred to R. v. McCue, 130 C.C.C. (3d) 90 per Salhany, J. in this regard.
2 My brother heard the bail review on October 7th, 2005 following denial of bail at the show cause hearing before Justice of the Peace Billich, on August 29th, 2005.
3 It is acknowledged that there is no material change of circumstance between October 7th and the date of the hearing of this application. The issue then is whether there was a clear error in principle.
4 I would approach this task by going back to the decision of the Justice of the Peace. He detained the accused on the secondary and tertiary grounds; that much is clear on the transcript of the reasons. Regrettably, that is the only aspect of the decision that is clear. It is not possible for this reader to discern the logic, to discern what principles were applied, nor to discern what criteria were considered.
5 With respect, the decision is of such opacity that insofar as its function as to reveal the reasons for the result, it fails to do so. Further, the Justice of the Peace took a diversion into a parable of tempting fruit which figures prominently in the decision. It is troubling in that its relevance is not apparent, and, more significantly, its tone tends to depart from the presumption of innocence.
6 Accordingly, it is my view that because it is not possible to deduce with any reasonable degree of confidence what principles the Justice of the Peace proceeded upon, the matter required a fresh appraisal and a hearing de novo when it came up for bail review. Additionally, there was at the date of the bail review, a material change of circumstance in that an additional surety had come forward, Mr. Morgan, who would, in combination with the other sureties, make possible 24 hour supervision.
7 I would start with these three observations:
(1) Even when there is a likelihood of re-offence, that is not an automatic bar to release if a plan of supervision is in place with appropriate sureties such that the Court may have reasonable confidence that the plan will succeed;
(2) The relative strength or weakness of the Crown’s case is a relevant factor to consider on all grounds for detention;
(3) The tertiary ground is not lightly to be engaged. In particular, it ought not to be engaged more readily only by reason of the notoriety of a particular type of offence in the mass media at any particular time. It is for those cases where the extreme gravity and egregious nature of the offence, combined with a strong Crown case and all the other attendant circumstances would lead to erosion of confidence in the administration of justice in the minds of reasonable and thinking citizens if there was pre-trial release. It is certainly not a ground engaged in the absence of a very cogent Crown case.
8 The most salient feature of the Crown’s case as related to the Justice of the Peace by the officer in charge, Officer Young, is the disconnection between the Crown’s theory against Mr. Bennett and the independent evidence.
9 The Crown’s theory is that there was a shoot-out near the Marcus Garvey Bar in which Mr. Bennett was the aggressor. He is charged with attempted murder of Shawn Edwards, among other things. The Crown’s case rests entirely on the oral evidence of Branka Milos, a self-confessed liar. A reason for her lying is posited by the officer, but the reason does not make Milos’ story more compelling or more credible.
10 The greater difficulty with the Crown’s case lies in the independent evidence. The independent evidence conflicts with the Crown’s theory, and it is reliable because it is either real or it is dispassionate.
11 A police officer in the vicinity heard one shot. Two casings were found at the scene. The best information the police had was that they came from the same gun. No bullets were found in the vicinity of the crime scene, nor was there bullet damage on the car allegedly shot at. No gun was found on Mr. Bennett or in the vicinity of the trail of blood he left when he walked to his home. Mr. Bennett was apparently shot from the back as the bullet entered the back of his neck and exited from the face.
12 In addition to the independent facts, all of which appear to diminish the viability of the Crown’s case, there are the actions of Milos and Edwards in the car. Those actions are ambiguous at best and are consistent with Edwards being the aggressor rather than a victim.
13 In my view, the strength or weakness of the Crown’s case was never addressed or assessed. The Crown’s case is not a strong one. Indeed, it would not be an exaggeration to observe that it is fraught with problems.
14 This was a relevant factor that was considered neither by the Justice of the Peace nor, regrettably, by my brother. While I agree with my brother, Hamilton J., that the ultimate reliability and credibility of Milos’ evidence is a matter for trial, I must, with great respect, take a different view as to whether the analysis ends there in these circumstances. Where there is an abundance of independent evidence that does not support but, rather, conflicts with the Crown’s case, and where there ought to be real evidence located at the crime scene and on the car if the Crown’s theory is good, it is necessary, in my view, to cast a critical eye on the Crown’s case as a whole and to consider its relative strength or weakness in assessing whether cause is shown.
15 I therefore come reluctantly to the conclusion that my brother erred in principle in not considering the strength of the Crown’s case. It does not appear to have been considered at either the original show cause nor at the bail review, and, in my view, when it is taken into account, the balance tips in favour of release on terms. Regrettably, I am not in a position to fashion terms of release at this moment.
16 Mr. Morgan, who puts himself forward as a surety, has said in his affidavit that he is prepared to risk savings as a surety. It is not apparent what his means and assets are, nor the amount he is prepared to put at risk. These are facts the Court needs to know to assess the strength of this surety and the plan put forward. Had Mr. Morgan been examined viva voce on the October 7th bail review, perhaps the evidence would be before me by way of transcript. As matters transpired, however, it is not.
17 I would, therefore, adjourn this hearing to permit the applicant the opportunity to put that evidence before the court.