Justice Carol Beswick refused Brian Emmanuel Borden’s application for bail on 13^th September, 2012.

Robert Mackford Bush was murdered on the 13th  September 2011. He was shot by two gunmen  whilst seated in a car and he died as a result of multiple gunshot wounds.

Borden was charged with his murder and also with unlawful  possession  of a firearm.

The Crown objected to the Applicant/Defendant on three grounds, flight risk, interfering with witnesses and a risk of re-offending. They also submitted reasons why they had a strong case against Borden.

They also argued that the murder involved warfare between gangs and alleged that the deceased and the Defendant were associated with opposing gangs.

The Counsel for the Defence argued that the prosecutions Chief Witness, Marlon Dillon, was an unreliable witness, because it was not until he himself was charged with serious offences, including robbery, and had been incarcerated for eleven days, that he chose to give the police all this alleged information. They also submitted that the eyewitness who was present at the murder scene had made conflicting statements as to what occurred. In view of what they asserted as weak evidence against their client was “anxious to have his day in Court and would not be a flight risk.”

In giving her decision, Justice Beswick said it could well be most community members knew the details of the killing of Robert Bush but Mr. Dillon is readily testifying to the actual words of Borden who had boasted to him that he had killed Bush and described the incident in detail, including the extent of the injury to Bush’s body.

She said a year had elapsed between Bush’s murder and Dillon’s statement and this made it clear any witnesses that there may be would be slow to come forward. The witness who was with the deceased at the moment of his fatal wounding vacillates in her account of the killing.

“I view these facts as being indicative of an offence having been committed in which there is difficulty in obtaining evidence to put before the Court to allow for timely prosecution,” she said. “It is likely therefore  that any such witnesses  who might be available would have the real risk of being interfered  with, in order to continue the delay or prevent the trial, thereby thwarting the course of justice.”

“At this time, the evidence against this Defendant in my view is very strong,” she added. “There is, to my mind, a very real risk of the Defendant  committing  an offence if released  on  bail – especially  in circumstances  where,  for  so  many  months,  the situation has been such that evidence, sufficient to identify the murderer, has been slow in being obtained.”

The Judge admitted that the risk against Dillon is small as “he is not at liberty to move freely within the community” but there were other witnesses  and they must be considered. She also pointed to the previous convictions of the Defendant and the offences he faces in this crime are very serious. She considered Borden was a flight risk and could find no exceptional circumstances to cause her to exercise discretion and grant him bail.