Court File and Parties

Date: 2020-03-20 Superior Court of Justice – Ontario

Re: R. And: J.S.

Before: Copeland J.

Heard: March 20, 2020

Counsel: Ms. Ines Gavran, for Mr. S. Mr. Rob Fried, for the Crown

Endorsement on Bail Review

[1] Mr. S. brings a bail review pursuant to s. 520 of the Criminal Code. The review was heard by teleconference with consent of the parties. Mr. S. was not on the conference, but the sureties were present with defence counsel.

[2] The original bail hearing was a reverse onus because of the charges of possession for the purpose of trafficking of certain drugs. I note that the amounts of drugs involved, although clearly trafficking amounts if proven, are street level trafficking amounts, not higher level trafficking.

[3] The defence argues that the Justice of the Peace erred, and that there are also material changes in circumstances.

[4] The Crown opposes release. However, Crown counsel acknowledges that there are material changes in circumstances, both in terms of the new sureties presented, and in terms of the current risk situation posed by the coronavirus. Crown counsel indicated that he did not need to cross-examine the new sureties (and Mr. S.’s mother was cross-examined at the initial bail hearing).

[5] It is not necessary for me to decide if the Justice of the Peace erred, because I am satisfied that there are material changes in circumstances. There are two material changes: first, the new proposed sureties; and second, the new situation in relation to the Coronavirus which has developed in the past couple of weeks, after the decision of the Justice of the Peace.

[6] I note at the outset that the Crown only sought Mr. S.’s detention on the tertiary ground. Thus, there are no concerns raised under either the primary or secondary grounds. Mr. S. has no criminal record, and is a relatively young man, 20 years old.

[7] As I read the reasons of the Justice of the Peace, his concern under the tertiary ground was that the surety proposed at the initial bail hearing, Mr. S.’s mother, alone was not a sufficient plan in light of the seriousness of the charges, and other concerns under the tertiary ground. In particular, she has stage 4 cancer. As I read his reasons, the concern was not the good faith of Mr. S.’s mother as a surety, but given her health issues, the Justice of the Peace was concerned about her ability alone to supervise Mr. S.

[8] In my view, with the other proposed sureties, Mr. S.’s father and godfather, these concerns are now addressed. His mother is a responsible member of the community, with a stable work history prior to her cancer diagnosis. His father is also a responsible member of the community with a stable work history, with the same employer for the past 15 years. His godfather is retired, but prior to that worked for 30 years as an engineer, the last 24 for the same company. Although Mr. S.’s mother and father appear to be of relatively modest means, and do not own property, his godfather owns his condo unit. I am satisfied that all three of the proposed sureties understand the responsibilities of being a surety, and will carry out their obligations to the court. I note as well that the father and godfather live together, which will assist in communication and continuity of supervision.

[9] Section 515(10)(c) requires the court to consider all of the circumstances, and in particular the four listed criteria in order to determine if the detention of the defendant is necessary to maintain confidence in the administration of justice. It is important to bear in mind in assessing the tertiary ground that the defendant is presumed innocent. It is also important to bear in mind that even if all four of the criteria are met, the court must consider all of the circumstances, including the proposed release plan: St.-Cloud at paras. 37-88.

[10] Where there may be tertiary ground concerns, the terms of a proposed release plan, if sufficiently strict, may be sufficient to address those concerns. In other words, depending on all of the circumstances, the confidence in the administration of justice of a reasonable and well-informed member of the public may not be diminished even where the Crown makes a strong showing on the four St.-Cloud factors, if a defendant is released on a restrictive bail plan: R. v. Dang, 2015 ONSC 4254.

[11] That said, St.-Cloud is also clear that the tertiary ground is a distinct ground that can provide a basis for detention by itself. The application of the tertiary ground is not limited to rare or exceptional circumstances or to certain types of crimes: St.-Cloud at paras: 50-54, 87.

[12] What is proposed in this case is a house arrest surety bail, with very limited exceptions to the house arrest term. I accept that the Crown can make a strong showing on the four factors under the tertiary ground, although I qualify that somewhat under the first ground. On the first St-Cloud factor, the Crown case is relatively strong. However, given the limited evidence about whose apartment it was, and whether the bedroom Mr. S. was found in was his room, it is not overwhelming. But I accept that it is a reasonably strong Crown case at this stage. On the second and third St-Cloud factors, there is no question that the offences charged are serious, in particular the fact of the involvement of firearms; although I note that the firearm offences involve possession and not use. But they are still very serious offences. On the fourth St-Cloud factor, I accept that if Mr. S. is convicted, he will very likely face a lengthy term of imprisonment.

[13] The tertiary ground requires a consideration of all of the circumstances, and is not limited to the four enumerated St-Cloud factors. An important consideration is the proposed plan of release. A reasonable and informed member of the community would not have concerns for the administration of justice if proposed release terms are sufficient to address the tertiary ground concerns.

[14] In my view, this is a case where the new proposed plan of release is sufficient to address the tertiary ground. I find that this is particularly so, because Mr. S. is a relatively young man, and has no criminal record.

[15] This brings me to the second material change, the current situation with the Coronavirus. As I have noted, the tertiary ground requires a court to consider all of the circumstances.

[16] St.-Cloud is also clear that even where the Crown can make a strong showing under the four listed criteria, detention is not automatic, and the court must consider whether in all of the circumstances detention is necessary to maintain confidence in the administration of justice: St.-Cloud at paras: 66-71. I note than among a non-exhaustive list of possible factors that a court may consider as part of its assessment of all of the circumstances, Justice Wagner, as he then was, writing for the court, included the personal circumstances of the defendant, including his physical or mental condition (at para. 71).

[17] St.-Cloud is clear that a reasonable and well-informed member of the public, about whose confidence in the administration of justice s. 515(10)(c) is concerned, is familiar with the basics of the rule of law, and the fundamental values of our criminal law. These include the presumption of innocence, the right to liberty, and the rights guaranteed by the Charter: St.-Cloud at paras. 72-87.

[18] In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.

[19] I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.

[20] This factor must, of course, be balanced with the other tertiary ground factors. In my view, in the circumstances of Mr. S., including the new proposed release plan, he has discharged his onus to show that his release on strict terms would not undermine public confidence in the administration of justice.

[21] The bail review application is granted. I order Mr. S. released on the following terms (subject to fine-tuning of wording as discussed in the teleconference, which I will confirm when I review and sign the order):

• $15,000 surety recognizance ($5,000 per surety: K.S., K.S., and L.S.);
• Reside with your surety, K.S., at XXXX Lawrence Avenue East, unit XXX, Scarborough;
• Remain in your residence at all times, except while in the direct and continuous presence of one of your sureties; or except for medical emergencies of yourself or a member of your immediate family;
• No contact, directly or indirectly, with J.C. or J.C.;
• Not attend at XX SXXXXXX Crescent, Toronto;
• Not to possess any weapons or apply for any firearms acquisition certificates or similar;
• Not to possess any unlawful drugs or substances, except with a valid prescription in your name

[22] I thank counsel for their professionalism and flexibility in the hearing of this matter. I also thank the court staff for their assistance in these difficult circumstances.

Copeland J.