A former gang leader sent back behind bars after he was shot in a Toronto park is free again after Correctional Service Canada reversed its decision to revoke his freedom in the name of public safety.
Alejandro Vivar's release from custody caps a tumultuous month in which he was juggled within the correctional system, raising concern among penal reform advocates that his incarceration unfairly punished him as a victim of an unprovoked attack.
Mr. Vivar sustained five gunshot wounds while leading a morning fitness class in Christie Pits park. After three weeks in hospital, he was shackled and transferred to Toronto South Detention Centre – an institution he says was poorly equipped to deal with his injuries.
In late August, Mr. Vivar was released from jail and transported to an undisclosed location by Corrections Canada to protect his safety.
Mr. Vivar's parole was restored by Corrections Canada, averting a parole board hearing, his lawyer confirmed. Corrections Canada determined it was in the interest of Mr. Vivar, his family and its mandate to public safety to relocate him, noting his parole was initially suspended for events beyond his control.
Mr. Vivar was charged with murder in 2003, but was later acquitted when a witness providing testimony admitted to having perjured himself at a preliminary hearing. Mr. Vivar was later the top target for Toronto police in Project Cheddar, the 2007 drugs and weapons raid that landed him a 10-year prison sentence for firearms and narcotics possession.
Mr. Vivar did not breach any of his parole conditions after being released in the spring. Friends and co-workers testified that after more than eight years behind bars, Mr. Vivar appeared to have turned his life around both inside and outside of prison, publicly disavowing any previous gang affiliations.
The suspension of parole for an event such as the shooting is common, says Simon Borys, a lawyer who specializes in parole issues. "What is uncommon is situations that arise where the inmate actually has no culpability whatsoever."
When an incident occurs involving an inmate on parole, Corrections Canada suspends parole and investigates, requesting a hearing with the parole board to determine whether the parole should be revoked or the prisoner released.
A spokesperson for Ontario's Ministry of Community Safety and Correctional Services disputed concerns about Mr. Vivar's care while in custody.
"The infirmary at the Toronto South Detention Centre is operational and was not closed at any time during [July 30 to Aug. 28]," Andrew Morrison said.
"The on-site infirmary can support an inmate's recovery once they are released from hospital or if they are admitted into custody with a significant pre-existing medical condition," he said, adding any inmate who appears in poor health is assessed by staff on site.
Detective Constable Chris Miller of 14 Division's major crimes unit said the officers guarding Mr. Vivar in hospital had no role in determining when he would be discharged – any decisions to release him into police custody were up to the doctors.
On July 30, Mr. Vivar's own family members were present with roughly 25 other participants for his Prison Pump workout. The weekly Saturday class brought together a varied group, including residents of a nearby halfway house, students and families.
A man who had arrived late to the class and lazily went through the exercises approached Mr. Vivar and began shooting, said a participant in the class, who spoke on condition of anonymity.
"It sounded like a cap gun. He was really close to [Alejandro]," he said.
The first shot missed but the next five shots hit Mr. Vivar – two bullets pierced his chest, one struck his abdomen and another hit his arm. A bystander was also struck by a stray bullet and the shooter fled through the park.
Police have not announced any progress in the case, but the investigation is continuing, Det. Constable Miller said. Grainy images of the shooter were released to the public on July 30, but with the suspect pulling a hat down over his eyes, identification has proven difficult. There were no shell casings recovered, suggesting the shooter used a revolver.
"It's going to be a more difficult one I think – there's a lot going on behind the scenes that we'll never know," Det. Constable Miller said. "It's one of the craziest acts I've ever seen."