ONTARIO COURT OF JUSTICE DATE: 2024 04 12 COURT FILE#: 4810 998 24 48110822-00; 4810 998 24 48110821-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
JOHN NANIBUSH
APPLICATION FOR JUDICIAL INTERIM RELEASE
Before: Justice B. Jones Heard on: April 10, 2024 Written Reasons Provided on: April 12, 2024
Counsel: B. Janzen.............................................................................................. counsel for the Crown C. Brunet......................................................................................... counsel for Mr. Nanibush
Jones J.:
Introduction
[1] John Nanibush is facing nine Criminal Code and CDSA charges relating to events on March 29, 2024, in Toronto. He also faces multiple outstanding charges on several Informations from Barrie that remain before the Ontario Court of Justice. The Crown did not apply under Criminal Code section 524 to cancel those prior releases because they were not before the court. However, based on their existence, Mr. Nanibush was placed in a “reverse onus” position when applying for bail.
[2] On April 10, 2024, a judicial interim release hearing was conducted in 401 Court. Following the submissions of counsel, I released Mr. Nanibush and provided oral reasons for my decision.
[3] This case addressed several vital matters that commonly arise in bail hearings for marginalized and vulnerable persons who cannot locate someone to act as a surety. I provide these written reasons to fully explain my decision.
The Current Charges – Toronto – March 29, 2024
[4] Mr. Nanibush is charged with the following offences:
- Possession of a prohibited weapon (Code s. 92(2));
- Possession of a weapon for a dangerous purpose (Code s. 88(1));
- Possession of a restricted or prohibited weapon while prohibited (Code s. 117.01));
- Failure to comply with a release order (Code s. 145(5)(a));
- Possession of property obtained by crime under $5000 (Code s. 354(1));
- Possession of a schedule I substance for the purpose of trafficking (CDSA s. 5(2));
- Possession of proceeds obtained by crime (Code s. 354(1));
- Possession of break-in instruments (Code s. 351(1)); and
- Possession of a schedule I substance (CDSA s. 4(1)).
[5] The Crown provided the following police synopsis concerning these charges. I have summarized its contents here for brevity.
[6] On Friday, March 3rd, 2024, at approximately 6:00 a.m., Mr. Nanibush was located at Union Station in Toronto. Security officers escorted him off the property and continued to observe him via CCTV footage. He was observed holding a cylindrical object in his hand and then began "sparking" the object.
[7] Security officers recognized the object as an improvised conducted energy weapon. Upon observing the makeshift taser, the security officers called for police to attend. The accused re-entered the building and attended a bathroom in the main concourse area.
[8] Police officers arrived and were directed to the bathroom, where Mr. Nanibush was in a stall. He was placed under arrest. A search incident to arrest located four cell phones, four credit cards with different names, and four baseball caps with their tags still attached. The officers also located two digital scales, a large quantity of small zipper baggies, $545 cash, and a small amount of what appeared to be fentanyl and crystal methamphetamine. The officers’ opinion was that the drugs were packed for sale.
[9] No precise measurement of the weight of the drugs was provided.
[10] The officers also located a large wrench, a multitool, a small file, wire snippers and a larger “Allan” key.
[11] At the time of the investigation, Mr. Nanibush was bound by a release order issued by the Ontario Court of Justice on January 6, 2021. A condition of that order included a “no weapons” term. He was also subject to a Criminal Code section 109 weapons prohibition order.
Outstanding Charges – Barrie – Various Dates
[12] Mr. Nanibush faced six sets of outstanding charges from Barrie at the time of the bail hearing. Again, I have summarized the police occurrence reports:
January 7, 2021 – Theft Under $5000
[13] Mr. Nanibush is alleged to have stolen cell phones from a store. The case against him turned on video surveillance evidence. The quality of that footage is unknown. He was arrested on January 23, 2021 and released on a Form 10.
January 13, 2021 – Fail to comply with a release order
[14] Mr. Nanibush was subject to a release order that required him to reside at the Salvation Army bail program in Barrie. He did not return one night. A warrant was issued for his arrest.
January 21, 2021 – Possession of prohibited weapon x 2; Possession of a schedule I substance
[15] Mr. Nanibush was in the left rear passenger seat of a vehicle that the Ontario Provincial Police stopped. Officers asked him to identify himself, and he complied. After he stepped out of the car, the officers located a pepper spray canister and a black pocket knife near his feet. The knife could be opened by centrifugal force. He was arrested, searched, and a small quantity of crystal meth was uncovered.
[16] He was held for a bail hearing and released. A copy of that release order was not provided.
February 11 – March 2, 2021 – Fail to comply with probation
[17] Mr. Nanibush was sentenced on December 2, 2020, to 30 months probation. He was required to report to probation. He failed to do so between February 11 and March 2, 2021. He was arrested for this charge on April 20, 2021 and released on a Form 10.
March 19, 2021 – Theft under $5000; Fail to comply with probation; Break & enter into a residence
[18] During the afternoon of March 19, 2021, Mr. Nanibush met with another man in Barrie. Mr. Nanibush allegedly stole a cell phone from him when he was in the washroom. He was identified by some personal papers he left at the theft scene.
[19] At approximately 9:38 pm, two men and a woman broke a window and entered a Barrie residence. Police officers attended and located Mr. Nanibush exiting through a patio door. He was arrested and searched. He was found in possession of 2.5 grams of a substance believed to be fentanyl. He was released on a Form 10 undertaking.
Prior Criminal Record
[20] Mr. Nanibush has a lengthy prior criminal record. It contains many entries for property crimes and violations of court orders. There were only two previous entries for crimes of violence – an assault in 2012 and a robbery in 2015.
Mr. Nanibush’s Circumstances and the Proposed Plan of Release
[21] Mr. Nanibush identifies as Ojibway. His maternal grandparents attended residential schools. He and his siblings were taken into the child welfare system at a young age due to the physical abuse they experienced from their parents. Both his mother and father struggled with an addiction to alcohol and drugs.
[22] He was, unfortunately, removed from his culture as a result. He was placed with foster parents, and they also abused him. He was involved in a police investigation while he was a child. Over the years, he has struggled with addiction issues of his own (including alcohol and fentanyl). He has been diagnosed with behavioural issues relating to his mental health.
[23] He is currently living with a roommate in downtown Toronto. His roommate helps him access social services and treatment for his addiction. Before moving in with this roommate, he lived in different shelters. He now has some stability in his life.
[24] I decline to include more personal details of his life in this written judgment out of respect for his privacy. Suffice it to say his life has been one of trauma and neglect. He knows he needs help to address his inner demons, and he convinced me he was genuinely interested in connecting with the resources Ms. Brunet put together for him if he were released from custody.
[25] A letter from Aboriginal Legal Services of Toronto (ALST) presented a community support plan. It included an Aboriginal Mental Health & Addictions Program and medication-assisted care for problem drug and alcohol use. Mr. Nanibush can access these programs upon his release.
[26] A letter from Sound Times was also provided to the court. Sound Times is a mental health agency funded by the Downtown East Toronto - Ontario Health Team (OHT). It provides community support and educational, social, and recreational activities within a peer support framework. Sound Times’ role is to provide crisis prevention and outreach services to individuals with severe and persistent mental health and or substance use problems, as well as those who have been or are at risk of becoming in conflict with the criminal justice system. Mr. Nanibush will have access to Sound Times’ resources daily.
[27] While detained after his arrest, Mr. Nanibush contacted CAMH and started planning for treatment upon his release.
Positions of the Parties
[28] Mr. Janzen argued this was a reverse-onus bail hearing. Mr. Nanibush has not met his onus. The secondary ground concerns are too significant to entrust him to his own release order once more. [1] He has multiple outstanding charges in Barrie and has consistently failed to comply with court orders, as demonstrated by his criminal record.
[29] Sound Times and ALST are not substitutes for a surety. Without appropriate supervision, Mr. Nanibush is at substantial risk of re-offending. His current offences involve possession of a weapon and possession of dangerous drugs for trafficking. He will be facing a jail sentence if convicted.
[30] Mr. Janzen recommended a surety release might be acceptable, or at least a plan involving more direct supervision than what is being proposed by Mr. Nanibush.
[31] Ms. Brunet argued that a release order without a surety was sufficient. Mr. Nanibush does not have someone who can pledge funds to act as a surety. He should not be detained because of his limited socio-economic means. That would be an injustice.
[32] He may have a viable defence to the charges. She needs time to review the disclosure materials. If Mr. Nanibush is held in custody, it will be very difficult for her to meet with him at the jail. He will also have to endure harsh conditions for a prolonged time, which will take a heavy toll on him.
[33] As an Indigenous Canadian, the applicable bail provisions require me to consider any reasonable alternative to detention in the circumstances, and that analysis must consider what are commonly referred to as Gladue principles. Even if he is found guilty, a sentencing hearing may not result in a jail sentence.
[34] Considering the community support programs he will be able to access, he has met his onus and should be released.
Law and Analysis
[35] Section 11(e) of the Canadian Charter of Rights and Freedoms states, "Any person charged with an offence has the right not to be denied reasonable bail without just cause.” Section 11(d) of the Charter enshrines the presumption of innocence.
[36] In R. v. Morales, [1992] 3 S.C.R. 711, the Supreme Court of Canada held that “pre-trial detention is extraordinary in our system of criminal justice.” Yet the following thirty years have demonstrated that it has become anything but “extraordinary,” particularly for those of limited means.
[37] In 2017 the Supreme Court released R. v. Antic, 2017 SCC 27. The Supreme Court recognized the systemic, ongoing issues in the bail system and expressed concern about the growing remand population: see paras. 64-66. As held by Justice Di Luca in R. v. Tunney, 2018 ONSC 961, Antic sounded a “clarion call” to justice system participants “for a return to bail practices that recognize the primacy of the presumption of innocence, as well as the importance of the statutory “bail ladder” provisions, which are geared towards respecting constitutional guarantees of reasonable bail”: see para. 36.
[38] The Supreme Court emphasized that the guarantee of reasonable bail is “an essential element of an enlightened criminal justice system” – one that “entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons”: see para. 1. When bail is denied, many accused persons will face pressure to plead guilty to secure release. In Toronto, as I will explain, that pressure is amplified based on the inhumane conditions at the Toronto South Detention Centre (“TSDC”).
[39] In the subsequent case of R. v. Myers, 2019 SCC 18, at paras. 26-27, the Supreme Court commented on the negative effect of pre-trial detention on an accused person:
...the experience of pre-trial detention can have severe detrimental impacts on an accused person’s ability to raise a defence…
It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods.
[40] In 2019, the Criminal Code was amended to include sections 493.1 and 493.2. Those sections state (my emphasis added):
493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
[41] In R. v. E.B., 2020 ONSC 4383, Justice Schreck reviewed these provisions and held that “their clear purpose is to remedy the problem of overuse of pre-trial custody as well as the overrepresentation of certain populations in the criminal justice system in general and the remand population in particular”: see para. 22. Those populations include accused persons who struggle with mental health and addiction issues.
[42] On February 26, 2024, the Canadian Civil Liberties Association released a report on the bail system in Canada entitled “Still Failing: The Deepening Crisis of Bail and Pre-Trial Detention in Canada.” The authors determined that “the issues facing Canada’s bail system remain deep-seated and persistent.” Their analysis, based on data obtained from Statistics Canada, [2] concluded that 70% of accused persons detained in Provincial or Territorial jails were awaiting trial and presumed innocent. In Ontario, the number was a staggering 79.5%. Independent research conducted by at least one news organization placed it at an even higher 82%. [3]
[43] The conditions in these jails are “dangerous” and “inhumane,” according to the authors. They noted that programs, visits, and services within jails were drastically reduced during the pandemic and have not since recovered. Yet the number of people in pre-trial detention has now surpassed pre-pandemic levels. Overcrowding and understaffing are serious concerns which lead to the frequent use of lockdowns.
[44] Sadly, this deplorable state of affairs has been the subject of judicial condemnation for years, to little or no avail. A recent decision by Justice Molloy of the Superior Court in Toronto, R. v. Shaikh and Tanoli, 2024 ONSC 774, reviewed the prior jurisprudence in this area. Justice Molloy made the following observations about the Toronto South Detention Centre, which I wish to highlight (my emphasis added):
[73] The biggest problem at the Toronto South is that there have been frequent lockdowns, both partial and full. During those lockdowns, inmates have restricted access to everything: rehabilitation programs; religious observance; fresh air; showers; cleaning products; laundry; visits and telephone calls with loved ones; and meetings and telephone calls with their lawyers. Inmates are locked up in small spaces for hours, sometimes days on end. Prison is already an anxiety producing environment. The lockdowns have the impact of exacerbating these problems and tensions frequently spill over into actual conflicts. I have been hearing these stories, and many varieties of them, for years. Conditions got worse during COVID (which is not wholly unexpected), but they have not improved much since. The most disturbing feature is that the reason for the lockdowns, almost exclusively, is staff shortages. Based on what I have been seeing in numerous cases over that year or two, the lockdowns at the Toronto South are typically between 50 to 60% of the total days in custody. This is shameful.
[75] The Toronto South cells are solid concrete. There are no windows. There is no yard. There is merely a small area off the cell block which is bounded by concrete, and uncovered at the very top, so there is some air that can come in that way. During lockdowns, even that “privilege” is lost.
[76] Medical care for inmates housed in these institutions is also inadequate, particularly during periods of lockdown.
[77] These conditions are not humane. If the Canadian public heard that one of our citizens was being held in similar conditions in a foreign prison, especially while presumed innocent of any charges against them, they would be outraged, as they should be. And yet, these dehumanizing conditions have continued unchecked and unimproved.
[79] In 2020 the Ontario Human Rights Commission conducted an investigation into the conditions at the Toronto South and issued a report as to its findings. I will not comment here on the Commission’s findings with respect to human rights concerns and the use of segregation and restrictive confinement. However, the Commission commented on many problems that judges of this court are now finding to be routine, including: prisoners not being able to make contact with friends and family; public health concerns related to infrequent changes of bedding and clothing and outbreaks of skin conditions such as scabies; and stressful conditions caused by frequent lockdowns. The Commission noted that the Toronto South was not operating at full capacity at that time due to staff shortages and that the frequent lockdowns were also attributable to staff shortages, including staff making extensive use of “sick days” due to occupational stress-related injuries and long-term leaves due to disability. I am not aware of any follow-up taken by the Ministry of the Solicitor General in response to this report. However, I can certainly attest that my experience and that of many of my colleagues is that the conditions at the Toronto South have not improved.
[45] My own experience as a judge of the Ontario Court of Justice has left me with the same dismal observations and conclusions. In addition to these abysmal conditions, I have heard repeatedly from respected and experienced defence counsel that when an accused person is detained at the TSDC, it is extremely difficult to have meaningful contact with them. Booking an “access defence” call is often a torturous affair, which may be cancelled at the last minute. Attending the jail to meet with the client and review disclosure is sometimes a fool’s game. One may attend and have the meeting cancelled at the last minute. The newly implemented Remote Defence Access system, permitting contact via video, is apparently similarly unpredictable.
[46] When self-represented persons detained at the TSDC appear before me, they inevitably inform me that they cannot review their disclosure materials. The only remedy that seems to work consistently is to have the accused person attend the courthouse, where they might be able to review the disclosure materials with the assistance of duty counsel or amicus. In some cases, I have felt compelled to use valuable court time simply so that an accused person can review the disclosure materials in their case and understand the nature of the evidence in the Crown’s possession, which is their fundamental constitutional right. At the TSDC, this is apparently treated as a luxury rather than an obligation.
[47] Despite the Supreme Court ruling that pre-trial detention should be “extraordinary” over thirty years ago in Morales and its admonition about the overuse of pre-trial detention in Antic, the problem in this province only continues to worsen. Those who suffer the greatest are our most vulnerable citizens – the poor, socially disadvantaged, those with mental health challenges, Indigenous Canadians, and racialized Canadians. It long ago reached a crisis level. Something must change. And it must begin to change now.
[48] Even if pre-trial detention conditions were rendered more humane, the decision to deprive someone of their liberty before they have had a trial and the Crown has proven its case should be made sparingly. Given the utterly dehumanizing conditions at the TSDC, it must be made even rarer until those conditions improve.
[49] By making this statement, I do not mean to be critical of the hard-working correctional officers who toil away in these jails. I am often profoundly impressed by their professionalism and willingness to try and accommodate the demands of the judiciary and to ensure that court hearings can function. I regularly encounter officers holding cellphones up to the bars of an inmate’s cell so that they can at least be connected to court via audio when there are not enough video booths available. They are apologetic for these conditions and express concern that the institution's failure to properly connect an inmate to court reflects on them. They deserve praise for their efforts.
[50] The problems at the TSDC are persistent, systemic, and outside the court's jurisdiction. As Justice Molloy noted, the issues are depressingly circular: “The more lockdowns, the more anxiety is caused to the inmates, and the more these tensions can boil over into hostile confrontations. On the other hand, the more tensions and hostilities exist amongst the inmates, the more stress is caused to the correctional staff” (see paras. 79 and 80).
[51] While judges cannot change these conditions, we must consider them when making decisions that affect the lives of those who come before us. They deserve to have their fundamental human rights respected. Something far more than a mere mechanical application of the law of bail is required. For sentencing purposes, it has long been accepted that inmates are entitled to credit for onerous pre-trial detention conditions (e.g. see R. v. Duncan, 2016 ONCA 754). The Supreme Court of Canada in R. v. Hills, 2023 SCC 2, held that sentencing courts must consider the “conditions of confinement” and how they would affect an individual offender on a prospective basis when determining a fit sentence: see para. 136.
[52] Bail decisions must also consider a detention order's devastating impact on an accused person. The Crown has reasonably raised secondary ground concerns in this case. Yet when considering whether there is a substantial likelihood of an accused person re-offending, courts should take notice that there is voluminous research that the excessive use of pre-trial detention may, in fact, undermine public safety. In 2015, a report entitled “Broken Bail in Canada: How We Might Go About Fixing It” [4], commissioned by the Department of Justice, concluded that “any time in prison increases the likelihood of future criminal behaviour.” A 2020 Department of Justice Canada report, “Just Facts: Recidivism in the Criminal Justice System” [5], similarly concluded that persons who spend time in custody have higher rates of subsequent contact with police. As noted by the authors of the CCLA report, “[i]ncarceration disrupts connections to the community and makes it more likely – not less – that someone will engage in crime.”
[53] Prior court decisions have also concluded that pre-trial detention conditions must be considered when deciding whether to detain an accused person on the secondary grounds: see, for example, R. v. P.K., 2020 ONSC 2694, at para. 65. In R. v. Powell, 2020 ONCA 743, the Ontario Court of Appeal held that “longstanding problematic conditions in [a] detention facility” can constitute an independent ground justifying release from custody: see para. 33. I note that Ontario’s Crown Prosecution Manual instructs prosecutors on the importance of the presumption of innocence and that prosecutors “must be aware of the impact of even a brief period of detention in custody upon an accused. Even a brief period of detention in custody affects the mental, social and physical life of the accused and their family.” [6]
[54] There will be cases where a detention order is legally required, despite the deplorable conditions at the TSDC and the vulnerability of the accused person. Public safety must always be a paramount concern of any bail court. Where the accused person presents a substantial risk for crimes of violence in particular, the secondary grounds will take on heightened significance. Serious drug-related or weapons-based offences may also cause heightened concern. This will be the case regardless of the personal characteristics of the accused person. As noted by Justice Schreck in E.B., “A dangerous person is no less dangerous because he or she is a member of a vulnerable group”: see para. 42.
[55] The Crown’s position concerning Mr. Nanibush is, therefore, not unreasonable. He has been subject to multiple release orders and has been allegedly caught in possession of Schedule I substances on three separate occasions. Fentanyl, in particular, is a scourge on society, and its harmful effects are well known: see R. v. Lynch, 2022 ONCA 109, at para. 17. He also has a lengthy record of violating prior court orders. His history of compliance with bail terms has been poor, although he has not allegedly re-offended in nearly three years since his last release order in Barrie.
[56] At the same time, Mr. Nanibush has lived a life marked by trauma, addiction and homelessness. His family members and community have been the victims of both the residential school system and the child welfare system. Earlier this year, the Supreme Court of Canada remarked, again, on the effects of not only the residential school system but also the historic over-use of the child welfare system to tear Indigenous families apart in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5. The Supreme Court acknowledged the harm and intergenerational trauma that resulted from these policies and that the harm is still being felt today. The Court quoted from the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol. 1a, at p. 282: “In tandem with the residential school system, the child welfare system . . . became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non‑Indigenous families”: see para. 11.
[57] This background information is essential to understanding not only what will constitute an appropriate release plan for Mr. Nanibush but also how to evaluate at this early juncture, at least in a preliminary manner, the extent of his moral culpability for his crimes if he is found guilty. Even if he is ultimately convicted and sentenced, he may be sentenced to a non-custodial disposition or a conditional sentence. If I were to detain him, he might spend needless time in jail. Or he might feel undue pressure to plead guilty to be released. Either outcome would amount to an injustice. Ms. Brunet rightly submitted that Mr. Nanibush’s guilt should not be assumed, and he may have a viable Charter application to pursue regarding his arrest. None of that can be adequately evaluated until the disclosure materials are provided.
[58] Mr. Nanibush currently has a fixed address. The British Columbia Court of Appeal discussed the critical importance of housing as a source of stability to facilitate an accused person’s progress in R. v. Graham, 2022 BCCA 252, at para. 24. If he is detained, he risks losing access to that residence, potentially setting him back and almost guaranteeing he will struggle when released from custody and then likely re-offend. He also has been connected with ALST for culturally appropriate programming and Sound Times for mental health and addiction support.
[59] Mr. Janzen submitted that as helpful as these community support programs are, they are not a substitute for an able surety. There is merit to that submission. However, insisting upon a surety in all cases would create stark unfairness for individuals such as Mr. Nanibush, who may not realistically be able to access a surety. The plan of release need not be flawless. As stated by Justice Dawe in R. v. Tully, 2020 ONSC 2762, “the relevant question is not whether secondary ground concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors”: see para. 23. Those relevant factors include the circumstances which Criminal Code section 493.2 requires the court to consider, as well as the tragic reality of the conditions of imprisonment that Mr. Nanibush will face at the TSDC.
[60] This was a reverse onus bail hearing. The ladder principle favouring the least restrictive form of release does not apply: see R. v. Ishmael, 2019 ONSC 596, at para. 34. However, that does not mean that the accused must somehow climb a “reverse ladder” either. He is not obligated to propose a surety. Instead, the proposed plan of release must be evaluated on its merits.
[61] While Mr. Nanibush has a lengthy prior criminal record, in R. v. Le, 2019 SCC 34, based on several authoritative studies, a majority of the Supreme Court of Canada found that there is “disproportionate policing of racialized and low-income communities” in Canada: at paras. 89-97. An accused person’s criminal history, particularly for failing to comply with court orders, must be considered in light of systemic issues to ensure that the accused is not unfairly disadvantaged in obtaining bail. Criminal Code section 493.2 requires a court to consider the accused’s membership in vulnerable and overrepresented populations when determining what weight to assign to his criminal record for failing to abide by court orders: E.B., at para. 48.
[62] As stated by the Ontario Court of Appeal in R. v. King, 2022 ONCA 665, at paras. 179-182:
…it is necessary for trial judges to place the Indigenous accused’s criminal record within the context in which it has been accumulated, one that corrects for possible systemic biases, stereotypes and assumptions…
Accounting for any distortions caused by the possibility of stereotyping and systemic biases against Indigenous people may reveal that the criminal record is much less reflective of an Indigenous accused’s subjective disregard for the truth or contempt for the law than would otherwise appear…
Conclusion
[63] The proposed plan allows Mr. Nanibush to engage with appropriate community-based support and remain in his residence. A surety is not required. What is needed is a commitment to follow through with the resources made available to him. I cautioned Mr. Nanibush that he will likely face a future detention order if he fails to demonstrate that he is genuinely interested in taking advantage of these resources and re-offends.
[64] Mr. Nanbibush met his onus. I released Mr. Nanibush on his own release order with limited terms and conditions. I also provided him with copies of ALST and Sound Times letters.
[65] While many of the concerns I have expressed in this judgment have focused on Mr. Nanibush as an Indigenous Canadian, they must be considered in all cases. The conditions at the TSDC affect everyone who is held there. The overreliance on sureties in our bail courts has been documented for years. Marginalized and economically limited individuals should not find themselves effectively unable to secure release because they have had and continue to have difficult lives. Each case must be considered on its merits, with appropriate sensitivity to these pervasive social ills.
[66] I want to thank Mr. Janzen for the fair and reasonable manner in which he conducted himself as a Minister of Justice. I also applaud Ms. Brunet’s excellent presentation of her client’s life history and current personal circumstances, which allowed me to understand how to assess the proposed plan of release comprehensively.
Released: April 12, 2024 Signed: Justice Brock Jones
Footnotes
[1] Mr. Janzen also raised primary ground concerns but accepted they were not a significant factor.
[2] Average counts of adults in provincial and territorial correctional programs, Statistics Canada, now updated to March 19, 2024: https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510015401
[3] “More than 80% of inmates in Ontario jails last year were legally innocent”, CTV News, published January 30, 2024: https://toronto.ctvnews.ca/vast-majority-of-people-in-ontario-jails-last-year-had-not-been-found-guilty-of-an-offence-data-1.6747988
[4] Cheryl M Webster, “Broken Bail in Canada: How We Might Go About Fixing It” (Research and Statistics Division, Department of Justice Canada, June 2015) at 12, online: https://justice.canada.ca/eng/rp-pr/jr/bb-lr/p3.html
[5] Department of Justice Canada, Just Facts: Recidivism in the Criminal Justice System (August 2020), online: https://canada.justice.gc.ca/eng/rp-pr/jr/jf-pf/2020/docs/aug01.pdf
[6] https://www.ontario.ca/document/crown-prosecution-manual/d-24-judicial-interim-release-bail