Court File and Parties

COURT FILE NO.: CR-20-0000109-00BR DATE: 20200508 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – MICHAEL HAUGHTON Applicant

Counsel: Eadit Rokach and Rhianna Woodward, for the Crown/Respondent Kristin Bailey, for the Accused/Applicant

HEARD: April 23, 2020

Garton J.

Reasons on Bail Review Application

[1] Michael Haughton, age 47, is charged with the following offences:

i) Break and enter and commission of an indictable offence (39 counts); ii) Break and enter with intent to commit an indictable offence; iii) Possession of property obtained by crime (7 counts); iv) Possession of break-in instruments; v) Failing to comply with probation (29 counts); vi) Dangerous driving; vii) Flight from police; and viii) Failing to stop for a red light (s. 144(18) of the Highway Traffic Act).

[2] The 40 break-ins were perpetrated over the four-month period between October 19, 2018 and February 14, 2019. The targeted premises were independent store fronts, almost all of which were located in commercial plazas or strip malls. Twenty-eight of the businesses were restaurants, some of which were victimized more than once. In nearly every break-in, the perpetrator immediately targeted the cash register and either removed the cash or took the entire register with him. All of the break-ins took place between 12:00 a.m. and 5:00 a.m.

[3] Mr. Haughton was arrested on these charges on February 14, 2019. Police officers observed him at 3:09 a.m. on that date as he exited through the broken glass of the front door of a restaurant called “Piggy’s” in Thornhill. He got into the front passenger seat of a grey four-door Nissan Sentra, which then left the scene. The police tracked the vehicle and later arrested Mr. Haughton and another male, Sebastian Bourgh, near the car and in front of the residence of Mr. Haughton’s girlfriend, Jennifer Ottewell. Mr. Haughton was in possession of $5000. The Nissan, which was owned by Mr. Bourgh’s common law spouse, was particularly distinctive as it had different front and back rims, and the right front headlight was burned out. A grey four-door Nissan Sentra with these same characteristics was captured on surveillance footage during a number of the break-ins with which Mr. Haughton is charged. Piggy’s Restaurant is in the same strip mall where three other restaurants had earlier been broken into – one on January 24, 2019, and two on February 5, 2019.

[4] A bail hearing was conducted before a Justice of the Peace on September 20 and 30, 2019. The onus was on the Crown to show that the accused’s detention was justified under s. 515 (10) of the Criminal Code. On October 15, 2019, the Justice of the Peace ordered Mr. Haughton detained on the secondary ground. She did not address the tertiary ground.

[5] Mr. Haughton has brought this review of the detention order pursuant to s. 520 of the Code based on a material change in circumstances, which his notice of application lists as follows:

i) There has been a change in the strength of the Crown’s case on certain counts; ii) Mr. Haughton’s 13-day trial, which was scheduled to proceed in the Ontario Court of Justice on April 6-7, 15-17, 20-23, 28-30, and May 1, 2020, has been postponed; and iii) The current outbreak of COVID-19 favours release.

[6] This hearing took place in the context of the COVID-19 pandemic and the closure of the courts to all but certain urgent applications. The exceptional circumstances of the pandemic clearly satisfy the requirements for a material change in circumstances as described by the Supreme Court in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. The emergency conditions are such that there may be material delays in the time to trial. There are also potential additional risks associated with Mr. Haughton’s continued incarceration. Thus, this application proceeded as a hearing de novo based on the record before the Justice of the Peace, additional materials filed by the parties, and the testimony of Mr. Haughton.

[7] Both Mr. Haughton and his father, Vincent Haughton (Mr. Haughton Sr.), testified at the original bail hearing. An affidavit from Mr. Haughton was filed at this application, which proceeded by way of teleconference. Mr. Haughton was present on the conference call from the Toronto East Detention Centre (TEDC), where he is currently being held, and was cross-examined by Crown counsel.

Position of the Parties

[8] Mr. Haughton is requesting that he be released on a recognizance in the amount of $3000 with his father acting as his surety. It is proposed that he live with his father and mother and be subject to house arrest unless he is in the direct company of his father or for medical reasons.

[9] The Crown strongly opposes the application and argues that Mr. Haughton’s continued detention is justified on both the secondary and tertiary grounds.

The Current Charges

[10] The details underlying the 40 counts of break and enter with which Mr. Haughton is charged are set out in Exhibit 14. They were reviewed by Crown counsel in some detail at the initial bail hearing. Exhibit 3 sets out the similarities in the commission of the offences. It also contains a list linking items of clothing seen in surveillance footage of the break-ins to items of clothing that the Crown alleges were owned by Mr. Haughton. Exhibit 4 sets out the addresses of the targeted businesses and the times when they were burglarized. Generally speaking, on those dates when multiple break-ins occurred, the targeted businesses were sufficiently close to one another – for example, in the same strip mall – that the same perpetrator was most likely responsible for all of them. January 5 and 25, and February 2 and 5, 2019 are some of the dates when such multiple break-ins occurred. I do not intend to repeat all of the details outlined in these exhibits but will refer to some of them in considering the strength of the Crown’s case.

[11] It is important to bear in mind that Mr. Haughton is presumed to be innocent of all the charges that he faces and that at the bail stage of the criminal process, the Crown’s case may appear to be stronger than it turns out to be.

[12] Briefly, the position of the Crown is that 11 of the break and enters can be independently proven without reliance on a similar act application. This includes the break-in on February 14, 2019, when the police saw Mr. Haughton leaving Piggy’s Restaurant through the broken glass in the front door and getting into the silver Nissan Sentra with the burned out headlight and mismatched rims.

[13] A Nissan Sentra with those same distinct features was captured on video at the scene of a number of other break-ins. These include one of the break-ins on January 5, the break-in on January 24, one of the five break-ins on February 2, and two of the three break-ins on February 5, 2019.

[14] The Crown’s case appears to be strong with respect to the four break-ins that took place on January 5, 2019. Three of the targeted stores were in close proximity to each other. The fourth was only a 13 minute drive away. Video surveillance from two of the break-ins shows the perpetrator wearing a distinctive blue hoodie with the word “Hennessy” written on the back in gold lettering. Mr. Haughton was seen wearing the same coloured hoodie with the same word on the back when he was arrested in a Dollar Store for shoplifting back on October 25, 2018. [See screenshots from the Dollar Store’s surveillance footage and from the video at the police station following Mr. Haughton’s arrest on the shoplifting charge.] Exterior video surveillance captured a silver four-door Nissan sedan with mismatched rims at the scene of one of the January 5th break-ins.

[15] The surveillance footage from two restaurants in Pickering that were broken into on October 19, 2018 show that the perpetrator arrived on scene in a 2017 Honda CR-V, which the police determined was stolen. That same vehicle was observed on October 21, 2018, when another restaurant in Pickering was broken into. A fingerprint found on the passenger side door of the Honda has been identified as that of Mr. Haughton’s girlfriend, Ms. Ottewell, thereby linking him to the vehicle.

[16] At one point during the surveillance footage of the break-in on January 23, 2019, the perpetrator’s head covering came off, exposing his hair line and the top half of his face. He was a light-skinned black male with short black hair and a distinct hairline that peaks in the middle. These characteristics are consistent with Mr. Haughton’s appearance in his RICI photograph. Exterior surveillance of the January 23rd break-in shows the perpetrator exiting a four-door Nissan before entering the restaurant.

[17] The Crown’s case appears to be strong with respect to the break-in at the Mariya Islamic School on February 11, 2019, as Mr. Haughton’s DNA was found on a screwdriver on the premise. The DNA analysis was not available when the initial bail hearing took place. Defence counsel submits that the Islamic school is an “outlier” in terms of the similar act application as it is not a restaurant or other business. However, as noted by Crown counsel, the school appears from the exterior to be a business as opposed to a school.

[18] A white minivan was captured in surveillance footage during seven of the break-ins. These included a restaurant in Scarborough on January 11, 2019; three restaurants in Ajax on January 13, 2019; and three stores on February 8, 2019. As explained below, the evidence linking Mr. Haughton to the white minivan is not as strong as it appeared to be at the initial bail hearing.

[19] On February 8, at about 2:20 a.m., officers working with the major crime unit entered a strip mall at 4186 Finch Avenue East and observed a white Dodge Caravan travelling westbound through the lot. As the minivan passed the marked police car, the driver made eye contact with Police Constable Rupnarine, who described the driver as a black male wearing a black baseball cap. The officer was of the view that the male “looked a little like the man in the bulletin,” referring to a photo of Mr. Haughton in a police bulletin regarding commercial break and enters. The officers stopped their car to run a check on the Dodge Caravan’s licence plate. While they were waiting for the results, the van took off at a high rate of speed.

[20] The officers followed the van, which they learned was a rental vehicle. They caught up to it when it stopped at a red light. At the same time, the driver of a pickup truck, later identified as Richard Sutton, got out of his vehicle and began exchanging words with the van’s driver. Mr. Sutton then went over to the police car. He told the officers that he worked for CP Rail and was upset that the driver of the van had driven at a high rate of speed through the area where his crew was working. The officers activated their roof lights and were about to get out of their vehicle when the Dodge Caravan ran the red light and took off at a high rate of speed. The officers did not chase it. They did, however, take a statement from Mr. Sutton, who described the minivan’s driver as a black male with a thin face, skinny, in his forties, semi-clean shaven, and wearing a black baseball cap. Mr. Sutton described the female in the passenger seat as white, in her forties, with semi-long hair in a ponytail and wearing a white coat. Officer Rupnarine then showed Mr. Sutton a photograph of Mr. Haughton and asked him if the driver looked like this person. Mr. Sutton stated that he was sure that the driver was the same person.

[21] Three break and enters were perpetrated that night shortly after these events – the first at 2:35 a.m., the second at 2:40 a.m., and the third at 4:05 a.m. In all three break-ins, the perpetrator arrived at the scene in a white minivan. At the initial bail hearing, it was anticipated that the rental agreement for the Dodge Caravan observed by the police in the mall parking lot would prove to be in Jennifer Ottewell’s name. However, that turned out not to be the case. Defence counsel also noted the serious deficiencies in Mr. Sutton’s identification of Mr. Haughton as the driver of the Dodge Caravan – the officer only showed him one photograph, which was of the accused.

[22] Weaknesses in the evidence linking Mr. Haughton to the Dodge Caravan obviously negatively impact the strength of the Crown’s case with respect to those break-ins where the perpetrator arrived on scene in a white minivan. However, there is potentially other evidence upon which the Crown may seek to rely in regard to those offences; namely, a statement made by Mr. Haughton following his arrest in which he admitted doing break and enters and using the white van to commit some of them.

[23] In support of the similar act application, the Crown intends to rely on the following similarities in the commission of the offences:

1. The perpetrator consistently targeted independent store fronts, almost all of which were located in commercial plazas or strip malls. Most of these businesses were restaurants (28) and two restaurants were targeted more than once.
2. In every occurrence, the perpetrator gained entry by shattering either the glass door or a window beside the door. In 12 occurrences, a rock or brick was used to shatter the glass. In nine occurrences, a hatchet or tool of some kind was used to break the glass.
3. In nearly every break and enter, the perpetrator immediately targeted the cash register and would either take the cash out of the register or take the entire register with him. In nine occurrences, the perpetrator did not obtain any money or valuables. In most of these instances, the perpetrator was either unable to find where the money was kept, or there was no money on the premise.
4. All the break-ins took place between 12:00 a.m. and 5:00 a.m.
5. In the majority of occurrences, the perpetrator was in and out of the store in less than two minutes. The longest time spent in a store was between 5 and 6 minutes.
6. During six of the break-ins, the perpetrator tampered with the alarm systems and electronics. The Crown’s theory is that the motivation for this behaviour was the fact that these particular establishments had audible alarms.
7. During every break-in, the perpetrator used similar disguises, all of which included gloves and some method of covering his face. Some of the clothing was distinct, and certain items seen in the surveillance footage match clothing owned by Mr. Haughton. The Crown relies in this regard on items of clothing seized by police from the Nissan Sentra on February 14, 2019, when Mr. Haughton was arrested, and male clothing obtained by the police from Ms. Ottewell sometime after Mr. Haughton’s arrest on the shoplifting charge in October 2018. During her submissions, defence counsel pointed out the generic nature of some of the items of clothing. She also noted that Mr. Haughton did not own the Nissan Sentra, which was registered in the name of Mr. Bourgh’s common law wife.
8. All the break-ins occurred within a span of four months. However, 32 of them took place within just six weeks.
9. Although the break-ins occurred in various jurisdictions, including Durham, Scarborough, and Markham, the locations targeted on each individual date were typically close in proximity to one another, indicating that the same perpetrator was responsible.

[24] As stated earlier, Crown counsel will seek to admit at trial certain utterances made by Mr. Haughton following his arrest on February 14, 2019. Mr. Haughton was taken to 42 Division, where Detective Gavin Jansz spoke to him. The detective’s notes were filed at this application. They indicate that Mr. Haughton was advised of his rights to counsel and cautioned. He provided the police with the name of his lawyer, but she could not be contacted as she was out of town. Mr. Haughton was then “asked again if he wants duty counsel.” Mr. Haughton replied, “not right now.” Detective Jansz advised him that he could change his mind at any time and that he would make a call to duty counsel. The officer then continued to speak to Mr. Haughton.

[25] The officer’s notes indicate that Mr. Haughton admitted his involvement in the break and enters. Mr. Haughton could not say how many he had committed but advised that he had been “doing it since he got out.” He blamed his addiction to crack cocaine. At that point, Detective Jansz asked him if he would provide a “cautioned accused videotaped statement.” Mr. Haughton refused. In further conversation with the officer, Mr. Haughton made further admissions. For example, he stated that he did not make a “conscious use” of any specific tool to do the entries and just used whatever was available. He used bricks if he had no other tool. He admitted using the white van for break and enters and stated that Mr. Bourgh had done breaks-ins with him. He also stated that Jennifer Ottewell does not do break and enters but uses the drugs that he buys.

[26] Defence counsel submits that there are serious issues with respect to the voluntariness of these utterances, which she described as general in nature. She notes that they are not verbatim and consist of entries in the officer’s notebook, which was not signed. Defence counsel also submits that there is a potential s. 10 Charter application, as Mr. Haughton had not spoken to counsel.

[27] In St. Cloud, at paras. 57-59, the Court observed that it may be difficult to assess the strength of the Crown’s case at a bail hearing, where more flexible rules of evidence apply. Some evidence admitted at the hearing may later be excluded at trial. Despite the difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution’s case. This involves a consideration of the quality of the evidence tendered by the Crown, any weaknesses in the case, and any defences that those weaknesses suggest.

[28] It is not the role of this court to determine whether the similar act application should succeed, whether there has been a s. 10 Charter breach, or whether the Crown has established the voluntariness of Mr. Haughton’s statement beyond a reasonable doubt. However, in assessing the strength of the Crown’s case, I have taken into account the potential arguments and triable issues raised by defence counsel with respect to these matters. Having done so, I am of the view that the Crown’s case appears to be strong. On a number of counts, as noted in these reasons, it appears to be very strong.

The Accused

[29] Mr. Haughton is 47 years old. He has a lengthy criminal record and has spent a significant portion of his life in custody. At the time of his arrest on the current charges, he was subject to four different probation orders. He has multiple convictions for failing to comply with court orders, including four convictions for failing to comply with a recognizance and ten convictions for breaching the terms of his probation.

[30] Mr. Haughton’s criminal record dates back to 1988 when, as a 16-year-old young offender, he was sentenced to 12 months in secure custody for robbery and escape lawful custody, and 30 days consecutive in open custody for failing to appear in court. Other entries on his youth record include convictions for: theft under $1000 and possession of a weapon (May 4, 1989); break and enter (3 counts) and fail to appear (May 15, 1989); unlawfully at large (March 1, 1990); and escape lawful custody (July 30, 1990).

[31] Mr. Haughton’s adult criminal record commences in 1991 and continues through to November 2018. The record, which includes amongst other entries, three convictions for robbery, 14 convictions for break and enter, and three convictions for attempting to break and enter, is set out below:

• 1991-09-25 (1) Possession over $1000; (2) Obstruct police; (3) Possession of a narcotic for the purpose of trafficking – 45 days on each charge
  • [Mr. Haughton testified at the bail hearing before the Justice of the Peace that the drug in question was marihuana and that he was selling it for commercial gain and not to support a drug addiction.]
• 1993-07-05 (1) Robbery – 3 years and firearms prohibition for 10 years; (2) Disguise with intent – 1 day concurrent
• 1995-07-04 Statutory release
• 1996-08-26 Statutory release violator – recommitted
• 1996-10-02 Statutory release
• 1997-01-09 (1) Criminal Harassment; (2) Assault
• 1998-09-09 Obstruct Peace Officer
• 2001-04-17 (1) Armed Robbery – 5 years; (2) Unauthorized possession of a firearm in motor vehicle – 30 days concurrent; (3) Attempt obstruct police – 3 months concurrent; (4) Possession of firearm while prohibited – 6 months consecutive
• 2003-07-2 Dangerous Driving (offence date in 1999) – 1 day consecutive to sentence being served
• 2006-10-20 (1) Obstruct Justice – 60 days (in addition to 62 days of pre-sentence custody); (2) Fail to comply with recognizance (2 counts) – 60 days consecutive on each count and consecutive to (1)
• 2011-01-25 (1) Possession of proceeds of property obtained by crime – 90 days; (2) Traffic in Schedule I substance – 90 days conditional sentence, consecutive, and mandatory s. 109 order
  • [Mr. Haughton testified at the bail hearing before the Justice of the Peace that his addition to crack cocaine “took off” in 2009 and that his criminal activities thereafter have been motivated by his need to support that addiction.]
• 2011-11-16 Break and enter with intent – 5 months plus probation for 1 year (57 days of pre-sentence custody)
• 2012-07-18 (1) Attempt break and enter with attempt (3 counts) – 30 days (107 days of pre-sentence custody); (2) Possession of break-in instruments – 30 days concurrent
• 2013-04-10 (1) Break and enter with intent – 1 day plus probation for 1 year (6 months pre-sentence custody); (2) Possession of break-in instruments – 1 day concurrent
• 2013-12-03 (1) Fail to comply with probation order – 14 days; (2) Break and enter and commit theft – 1 day; (3) Break and enter and commit theft – 1 day intermittent, concurrent (153 days of pre-sentence custody)
• 2014-01-28 Theft under $5000 (2 counts) – 45 days (2 days pre-sentence custody) plus probation for 1 year
• 2014-02-27 Fail to comply with probation order – 7 days (2 days pre-sentence custody) and $25 fine
• 2014-12-03 (1) Break, enter and theft – 68 days (198 days pre-sentence custody credited at 1.5 equals 297 days); (2) Theft under $5000 – 30 days concurrent
• 2015-07-23 (1) Break and enter and commit theft – 9 months (121 days pre-sentence custody); (2) Fail to comply with recognizance – 6 months concurrent
• 2015-09-21 Break and enter and commit theft – 178 days, concurrent
• 2015-11-24 Fail to comply with recognizance - $25 fine (30 days pre-sentence custody)
• 2016-09-28 (1) Break and enter with intent – $25 fine plus probation for 1 year (129 days of pre-sentence custody); (2) Theft under $5000 - $25 fine and probation for 1 year
• 2016-12-29 (1) Break and enter and commit theft – 60 days plus probation for I year (120 days of pre-sentence custody); (2) Break and Enter and commit theft – 60 days concurrent
• 2017-07-06 (1) Break and enter and commit theft (2 counts) – $10 fine plus probation for 3 years; (2) Fail to comply with probation (2 counts) – $10 fine;
• 2017-09-06 Fail to comply with probation order – 7 days and $5 fine (17 days pre-sentence custody)
• 2018-02-22 (1) Break and enter and commit theft – 7 days (credit for equivalent of 110 days) plus probation for 18 months; (2) Break and enter and commit theft – 7 days consecutive
• 2018-04-19 Fail to comply with probation order – 33 days (credit for equivalent of 12 days pre-sentence custody)
  • [Mr. Haughton testified that he breached his probation order by failing to report to his probation officer.]
• 2018-08-22 (1) Robbery and (2) Fail to comply with probation – suspended sentence (120 days pre-sentence custody) plus 18 months’ probation, concurrent
• 2018-11-20 Theft under $5000 (2 counts); Fail to comply with probation order (2 counts) – 19 days, concurrent on all charges, and probation for 18 months

[32] Mr. Haughton testified at the initial bail hearing that he suffers from attention deficit hyperactivity disorder (ADHD), which was not diagnosed until 2007. He began using drugs around that time, which led to his addiction to crack cocaine. That addiction “took off” in 2009 and has continued to be the driving force behind his criminal activities.

[33] Mr. Haughton testified that prior to his arrest on the current charges, his probation officer had set up appointments for him with the John Howard Society regarding counselling and a drug treatment program. He believed that these appointments were scheduled for January or February of 2019. He testified that he was unable to attend them because he was arrested on February 14, 2019. A note in his probation file dated January 23, 2019 indicates that he had yet to follow-up on an appointment with the John Howard Society.

[34] Mr. Haughton acknowledged that there have been multiple occasions in the past when, after being placed on probation with a condition that he seek treatment for his drug addiction, he has failed to comply with that condition and has committed further offences. He testified, however, that this time is different – that if released on bail, he would follow through with a drug treatment program. He has completed a substance abuse program while in custody at the TEDC.

[35] In his affidavit, dated April 7, 2020, Mr. Haughton expressed concern about being in custody during the current pandemic, particularly since he suffers from asthma. He states that he is “terrified” that if he contracted COVID-19, his underlying health condition would require that he be put on a ventilator and he worries that one might not be available. He states that if released on bail, he would not do anything that would risk his going back into custody.

[36] Mr. Haughton’s evidence in cross-examination with respect to whether he suffers from asthma, the severity of his asthma, and the frequency with which he uses an inhaler was problematic. For example, at para. 4 of his affidavit, he states that he has chronic asthma and that he was born with it. He continues: “I am not currently using an inhaler but have a prescription for one.” In cross-examination, Mr. Haughton asserted that he is currently using an inhaler. He initially testified that he did not recall when he started to use one at the TEDC, but then stated that he has been using one ever since his arrest on February 14, 2019. When asked to explain the inconsistency between this assertion and his statement in his affidavit that he was “not currently using an inhaler but had a prescription for one,” Mr. Haughton testified that when he swore his affidavit on April 7, 2020, he was not “currently” using an inhaler because he was not actually using one that day. This explanation makes no sense and is not credible.

[37] At one point during his evidence, Mr. Haughton stated that he has used an inhaler three times every day since he has been at the TEDC. At another point, he stated that he did not use an inhaler every day. In any event, however often Mr. Haughton may be using an inhaler, I gather from his evidence that he has not had any difficulty accessing one while at the TEDC. He is provided with one upon his request.

[38] According to Mr. Haughton, he has been using an inhaler while at the TEDC because his asthma is aggravated by the stagnant air and humidity from the showers. Yet his asthma is apparently not affected by smoking cigarettes. He testified that he “chooses to smoke” and denied that smoking triggers or aggravates his asthma. He allowed that burning and inhaling crack cocaine sometimes affects his asthma but not in a serious way.

[39] No medical evidence was adduced with respect to Mr. Haughton’s asthma or the severity of his condition. No evidence was adduced from either of Mr. Haughton’s parents regarding the history of his asthmatic condition, which he says he has had since he was born.

[40] In the end, although certain aspects of Mr. Haughton’s evidence regarding his asthmatic condition were not credible, I accept that he has had asthma. As a result, he would be more vulnerable if he were to contract COVID-19.

The Proposed Surety: Vincent Haughton

[41] The proposed surety is Mr. Haughton’s father, Vincent Haughton. Mr. Haughton Sr. is 87 years old and a Canadian citizen. He has no criminal record. He testified at the bail hearing that his health is “fairly okay” but that he takes medication to control his blood pressure.

[42] Mr. Haughton Sr. and his wife live in a three-bedroom townhouse, for which they pay $1040 per month in rent. One of their sons, Christopher, age 36, also lives with them.

[43] Mr. Haughton Sr. has been retired for 20 years but continued to work part-time as a taxi driver until about two years ago. He is now fully retired. He receives a pension of $1000 per month. His wife, who is also retired, receives a pension of $2000 per month. At the time of the bail hearing in September 2019, Mr. Haughton Sr. had about $900 in savings. He was prepared at that time to sign as a surety for the accused in the amount of $1000. He is now prepared to sign in the amount of $3000, which is a significant amount of money for him, given his and his wife’s fairly modest income.

[44] Mr. Haughton Sr. has acted as a surety for the accused on two prior occasions. He was uncertain as to the exact years that he acted as surety or the offences with which the accused was charged at those times.

[45] In cross-examination, when shown the relevant documents, Mr. Haughton Sr. agreed that he and his wife, Edna Haughton, signed as sureties for the accused on January 20, 2015, in the amount of $2500 each, for a total of $5000, with respect to the charges of dangerous driving, failing to stop for police, possession of break-in instruments, and possession of property obtained by crime. Shortly thereafter, Mr. Haughton Sr. left for Jamaica to attend to a family matter, leaving his wife to supervise the accused. On February 10, 2015, following a compliance check by police, the accused was arrested for breaching his curfew. His mother told the police that he had left the house with one of his brothers. The accused confirmed the accuracy of her statement during his evidence at this hearing.

[46] At the time of his arrest on February 10, 2015, the accused was also arrested for another breach of his curfew with respect to the same recognizance. This breach occurred prior to February 10, 2015. He was convicted of both offences of failing to comply with his recognizance: see entries on his criminal record for July 23 and November 24, 2015.

[47] On May 27, 2016, Mr. Haughton Sr. and a friend of the accused’s, Tara Lawler, signed as sureties for him in the amount of $2500 each, for a total of $5000. The terms of the bail required the accused to be in his residence at all times unless he was in the company of one of his sureties or his employer. On June 9, 2016, Mr. Haughton Sr. called the police and cancelled the bail because he believed the accused was in breach of this term. The accused was subsequently arrested and charged accordingly. It turned out, however, that there was no breach because the accused was in the company of his other surety at the time. The charge was withdrawn on September 28, 2016.

[48] Mr. Haughton Sr. testified that the accused was living with him in 1993 when he received the three-year penitentiary sentence for robbery. The accused was not living with him in 2001, when the five-and-a-half year sentence was imposed for armed robbery and possession of a firearm while prohibited. Mr. Haughton Sr. maintained that he had “fairly good contact” with his son between 2013 and 2015, and that the accused would stay with him when he was on bail. It appears from the accused’s record that he spent large portions of those years in custody, either in pre-trial custody or serving a sentence.

[49] Mr. Haughton Sr. testified that the accused was living with him when he was arrested on the current charges on February 14, 2019. However, Mr. Haughton Sr. was out of the country at the time – he left for Jamaica a month earlier, on January 15, 2019 – and did not return until April 16, 2019. He testified that he does not intend to go anywhere until the current charges have been dealt with.

[50] Mr. Haughton Sr. agreed that the accused has been living his own life and has not asked him for support since he was 18 years old, or for almost 30 years. Mr. Haughton Sr. did not appear to know much detail about his son’s criminal record but was aware that he has a long history of committing break and enters. When asked whether he had spoken to the accused over the years in an attempt to dissuade him from committing criminal offences, Mr. Haughton Sr. queried whether the accused was actually guilty of all the offences on his record and suggested that there could be instances when he was wrongly convicted.

[51] Mr. Haughton Sr. was aware that the accused has a drug problem but did not know what kind of drug he was addicted to. He could not say whether it was marijuana or crack cocaine as he himself knows nothing about drugs and has not discussed the matter with his son. He stated that he had encouraged the accused to find treatment for his addiction. The accused told him that he had gone to some kind of drug treatment program, but Mr. Haughton Sr. knew nothing about the program or where it took place. He testified that he cannot tell when the accused has been using drugs because the accused has never appeared to him to be under the influence of drugs. He testified that “he looks quite normal to me all the time.”

[52] Mr. Haughton Sr. testified that he is in a position to supervise the accused because he is home during most of the day. When asked how he would ensure that the accused remained at home at night, he testified that he often wakes up during the night and would be able to check at those times to see if the accused was still there.

Analysis

The Secondary Ground

[53] The onus is on the Crown to show that the detention of Mr. Haughton is justified. The Crown has no concerns with respect to the primary ground. As was the case at the initial bail hearing, Crown counsel opposes Mr. Haughton’s release on the secondary and tertiary grounds.

[54] Section 515(10)(b) of the Code states that the detention of the accused is justified on the secondary ground where it is necessary for the protection or safety of the public “having regard to all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”

[55] I agree with the view of a number of my colleagues that the threat posed by the COVID-19 pandemic is a factor that is relevant to both the secondary and tertiary grounds. In R. v. J.S., 2020 ONSC 1720, Copeland J. found that the greatly elevated risk posed to detained inmates from the virus as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground. In R. v. King, 2020 ONSC 1935 and R. v. T.K., 2020 ONSC 1935, Goodman J. found that the threat posed by the virus is also relevant to secondary concerns. In R. v. Cain, 2020 ONSC 2018 and R. v. Fraser, 2020 ONSC 2045, Justice London-Weinstein agreed. These decisions make it clear, however, that the threat that the virus poses to those in custody, although relevant, is not determinative of a bail application. If it were dispositive, no one would be detained in custody pending trial until the pandemic is over. The elevated risk of contracting the virus is but one factor to be considered in the balancing that is required. The protection of the public must also be considered: Cain, at para. 8; and Fraser, at para. 16.

[56] The position of the Crown is that the protection of the public in this case overrides the health risks attached to Mr. Haughton remaining in custody. Crown counsel submits that Mr. Haughton’s criminal antecedents demonstrate that he cannot be trusted to keep any promises of good behaviour that he has offered to the court or his surety, and that the proposed release plan is inadequate. If Mr. Haughton is released from custody, there is a substantial risk that he will continue to commit criminal offences in order to fuel his drug addiction, for which he has never successfully sought treatment while out of custody. Any fear that he may have about contracting COVID-19 is not such that it would deter him from continuing to commit crimes in order to feed his addiction.

[57] The position of the defence is that the COVID-19 pandemic tips the scales in favour of Mr. Haughton’s release, particularly in light of the fact that he suffers from asthma. Mr. Haughton’s fear of being returned to an institution, where he is at an elevated risk of contracting the virus, is a significant deterrent to his re-offending. Defence counsel also submits that it is unlikely that Mr. Haughton would engage in any criminal activity while on bail because he knows that his father, upon discovering the breach, will contact the police and cancel his bail, as he did in 2016. The proposed plan of release – house arrest with his father as surety – is sufficient to reduce the risk of Mr. Haughton committing further offences.

[58] I agree with Crown counsel that Mr. Haughton’s lengthy criminal record demonstrates a persistent unwillingness on his part to comply with court orders and gives rise to significant concerns on the secondary ground. Mr. Haughton has four convictions for failing to comply with a recognizance. Two of those convictions relate to two breaches of the same recognizance where his father and mother had signed as sureties in the amount of $5000. By twice putting their money at risk, Mr. Haughton demonstrated a lack of respect and disregard for his parents, one of whom is now his proposed surety on the present charges.

[59] Mr. Haughton’s record includes ten convictions for failing to comply with a probation order. He was the subject of four probation orders at the time of his arrest on the current charges, which include 29 counts of breach of probation. His record also includes, among other entries, 14 convictions for breaking and entering and three counts of attempting to break and enter. There are entries on his record for break and enter offences in every year between 2011 and 2018. The most recent entries on his record – two counts of theft and three counts of failing to comply with probation – are dated November 20, 2018. He was arrested on the present charges less than three months later.

[60] Given Mr. Haughton’s criminal antecedents and proclivity to breach court orders, one of the key issues here is the ability of the proposed surety to control him and proactively prevent him from breaching his conditions.

[61] Mr. Haughton Sr. appears to be well-meaning and obviously wants to help his son. I accept that he would take his role as surety seriously in the sense that he would notify the authorities if or when he became aware of a breach – he did not hesitate in 2016 to call the police when he believed that the accused had breached his curfew. However, there is little evidence that Mr. Haughton Sr. has had any success over the years in influencing the accused’s behaviour and steering him away from a life of crime.

[62] Although Mr. Haughton Sr. testified that the accused has lived with him for fairly significant periods of time, he did not appear to know much about the accused’s criminal record. And he knew virtually nothing about his drug addiction, which has been the driving force behind the accused’s criminal activities since 2009, if not earlier. Mr. Haughton Sr. had no idea what drug the accused was addicted to and apparently never asked him. He testified that he encouraged the accused to get treatment, but that encouragement bore no fruit, as the accused has consistently failed through the years to follow through with any treatment program when out of custody.

[63] Mr. Haughton has testified that despite his lengthy criminal record and history of breaching court orders, this time is different. He testified that his fear of contracting COVID-19 while in custody is such that if he is granted bail, he would not do anything that would place him at risk of going back to jail.

[64] In my view, it is highly unlikely that Mr. Haughton’s fear of contracting COVID-19 would deter him from committing criminal offences if he were released on bail. In arriving at this conclusion, I take into account not only Mr. Haughton’s criminal record and long history of failing to comply with court orders but also the fact that his criminal activities have been driven by his addiction to crack cocaine, which has held him in its grip for over a decade and for which he has, to date, received no treatment. As stated earlier, over that period of time, Mr. Haughton has never followed through with any appointments or treatment plans while out of custody in order to deal with his addiction. It is obviously a strong or powerful addiction, and one that Mr. Haughton has been unable to deal with on his own. Mr. Haughton Sr. has not played and is not capable of playing any significant role in terms of assisting Mr. Haughton with his drug addiction. In these circumstances, there is a substantial likelihood that if Mr. Haughton were released from custody, he would repeat his past pattern of conduct – that is, he would seek to fuel or finance his addiction by committing criminal offences. It is more than likely that any fear he may have about returning to custody would take a back seat or be overpowered by his need to satisfy his longstanding addiction to crack cocaine.

[65] Based on the record before me, I find that the proposed plan of release is wholly inadequate. There is insufficient monitoring, particularly during the night. I do not believe that Mr. Haughton would obey the condition of house arrest or that Mr. Haughton Sr. would be able to enforce it. The risk of Mr. Haughton re-offending is extremely high.

[66] I turn then to Mr. Haughton’s risk of being infected with COVID-19. Mr. Haughton testified that he has chronic asthma and that he was born with it. As noted earlier, Mr. Haughton’s testimony was problematic in a number of respects regarding his asthmatic condition. For example, his statement in his affidavit that he is “currently not using an inhaler but has a prescription for one” is completely at odds with his testimony that he has been using an inhaler up to three times a day since his arrival at the TEDC. His explanation for this inconsistency was not credible.

[67] Although I accept Mr. Haughton’s evidence that he does, in fact, have asthma, there is no basis upon which to make a finding regarding the severity of his condition. No medical evidence was called in that regard. Crown counsel submits that the fact that Mr. Haughton is able to smoke cigarettes without aggravating his asthma suggests that it is not that severe. In any event, I recognize that as a result of having asthma, Mr. Haughton would be more vulnerable if he were to contract COVID-19. There is no evidence that he suffers from any other medical condition that would place him at a higher risk.

[68] Medical experts strongly recommend physical distancing and self-isolation in order to reduce the transmission of COVID-19. Needless to say, these things are not possible in a correctional institution because of space constraints. Inmates typically share a cell with another person or spend time in a common area. Frequent handwashing, which is also recommended, may not be available in a prison setting. As a result, inmates are at an increased risk of contracting the virus.

[69] Mr. Haughton testified that he currently shares a cell with one other inmate and that his range is at capacity. There are frequent lockdowns, but inmates are allowed out into the common area on a fairly regular basis. Mr. Haughton expressed concern about “sharing a dirty sink” and the fact that all the inmates use the same telephone, which is not cleaned after every use.

[70] On this application, the Crown filed a document, dated April 21, 2020, entitled “Response to COVID-19 Information Note.” The author is the “Institutional Services Division, Assistant Deputy Minister’s Office,” which is a division within the Ministry of the Attorney General for Ontario responsible for supervising adult offenders and those in custody awaiting trial. The Note outlines the strategies being followed in an effort to limit the effects of COVID-19 on the inmate population and correctional staff. As of April 20, 2020, there have been no cases of COVID-19 at the TEDC.

[71] The Note indicates that between March 16, 2020, and April 21, 2020, there has been a 32 percent reduction in the population of inmates in the province’s detention centres and correctional facilities. Steps continue to be taken to further reduce that population. Some of the other measures that have been taken to reduce the risk include the following:

• Personal visits to inmates have been suspended.
• Enhanced screening procedures for both inmates and staff have been put in place. Personal Protective Equipment (PPE) is worn by staff members in the Admitting and Discharge department and by nurses conducting further medical assessments.
• As of April 20, 2020, all institutions have obtained thermometers and implemented temperature screening for all staff and visitors. Those individuals who have a fever are denied entry.
• All new inmates are now admitted into a special intake unit where they are kept for a minimum of 14 days and monitored for symptoms before they are moved into the general inmate population. [Mr. Haughton states in his affidavit, dated April 7, 2020, that he has had many newly arrested individuals placed directly into his range. Perhaps this was the case at some point in time. However, the Note, dated April 21, 2020, indicates that the current practice, which I gather was implemented fairly recently, is to keep new inmates isolated in a special unit for a minimum of two weeks.]
• The Ministry has put a hiatus on non-essential transfers of inmates between institutions in order to reduce the risk of transmission between institutions and communities. All necessary transfers are screened by health care professionals prior to transfer.
• It is the responsibility of inmates to keep living areas clean. To that end, inmates are provided with cleaning supplies and direction on the proper cleaning protocols, as well as appropriate PPE where necessary. Inmates receive a personal towel, soap, and toilet paper, among other toiletries. Proper handwashing and cough/sneezing protocol has also been communicated to inmates.

[72] There is some indication that not all the protocols are being perfectly applied. For example, Mr. Haughton testified that the telephone is not disinfected after each use. Presumably, the Ministry will continue to take steps to ensure that its protocols and directives are being followed, including at the TEDC where Mr. Haughton is detained.

[73] There is no guarantee that the adoption of these measures will prevent an outbreak of COVID-19 at the TEDC. However, the measures suggest that correctional authorities are taking appropriate and prudent steps in an attempt to ward off such an outbreak. No doubt there is a risk of Mr. Haughton contracting COVID-19 but, at least to some extent, that risk is under some degree of control. Thus far, there have been no cases of COVID-19 at the TEDC.

[74] In terms of balancing Mr. Haughton’s risk of being infected with COVID-19 against the risk to the public if he is released, defence counsel noted that the offences alleged are property offences. She submits that public safety is therefore not at as much risk as it would be if the offences were violent. However, as observed by the Court in R. v. Omitran, 2020 ONCA 261, property offences can sometimes raise significant public safety concerns.

[75] In Omitran, the applicant, who had been convicted of several offences arising from a credit card fraud scheme, sought bail pending his appeal pursuant to s. 679(3) of the Code. Like Mr. Haughton, he had a significant record for breaching court orders and was on probation when he was charged with the offences. The main issue revolved around whether his detention was necessary in the public interest. In dismissing the application, Harvison Young J.A., at paras. 20-23 stated:

… The central concern in this case is public safety. [The applicant’s] offences were not violent, but they were serious, complex and motivated by greed. The trial judge also noted that the frauds had an economic cost to society as a whole and required a sentence that emphasized denunciation and deterrence.

The applicant has a significant record both for disregarding court orders and for committing similar frauds. He was on probation when he committed the offences now under appeal.

While I give little weight to the new charges, they do nothing to assuage the court’s concern that the applicant’s release could put more people at risk of credit card and other frauds. As outlined earlier, the applicant is a repeat fraud offender and also has a history of convictions for breaching court orders. These charges are similar to the substantive charges with which he has been convicted in the past, and also include the breach of court orders. [Citations omitted.]

Many individuals, businesses, and Canada’s financial institutions are currently under increased stress due to the COVID-19 crisis. Given the applicant’s repeat offending and the current economic climate, protecting the public against the fraudulent schemes is an important factor weighing against the applicant’s release.

[76] Harvison Young J.A. found that the applicant’s release plan was inadequate as she was not satisfied that he would not breach the terms of his bail. Nor was she satisfied that the surety could control the applicant’s conduct. In these circumstances, she found that the recent COVID-19 outbreak did not tip the balance in favour of release, although it was a factor to be considered.

[77] The public safety concerns referenced in Omitran are also present in this case. Mr. Haughton has a significant criminal record for disregarding court orders and is a repeat offender with respect to the offence of break and enter – the same offences with which he is currently charged. He was the subject of four probation orders at the time of his arrest.

[78] The 40 counts of breaking and entering that Mr. Haughton is facing took place over a four-month period. However, 32 of the break-ins were perpetrated within a span of only six weeks. Although the offences are not violent, they can certainly be categorized as serious. They involved multiple break-ins to small businesses – independent store-front operations – during the night by a perpetrator whose face was masked by a bandana or other covering. There were often multiple break-ins on the same night, with the perpetrator moving quickly from store to store. If the cash register could not be opened, the perpetrator stole the register itself. Cash boxes and cash drawers were taken. Property other than cash was also stolen, such as iPads, laptops, a computer monitor, and bottles of wine and liquor. Some businesses were broken into twice.

[79] The property damage was not limited to smashed glass in the front door. In six instances, alarm systems were damaged using an axe or other tool. In the January 23, 2019 break-in, the perpetrator carried a hatchet, which he used to break the front door. He is then seen in the surveillance footage using the hatchet to break off the doors of locked cupboards, leaving the area behind the counter in complete disarray. In some break-ins, bottles of wine and liquor were smashed on the floor. During the break-in of the Islamic school on February 11, 2019, an electronic box was ripped down and left in the lobby. The perpetrator made his way through the premises by prying open doors or using bodily force. A donation box was ripped off the wall. During a break-in of a restaurant on February 13, 2019, walls were damaged and tables overturned.

[80] Crown counsel pointed out that the targets of the break-ins were the kinds of businesses that are most likely to be under increased stress due to the present COVID-19 crisis. Businesses that provide non-essential services, such as restaurants, have been ordered closed, leaving the premises vulnerable to break-ins during the day as well as at night. Twenty-eight of the targeted businesses in this case were restaurants.

[81] Although Mr. Haughton’s testimony that he suffers from asthma was problematic in certain respects and was not supported by other evidence, I accept that he has asthma. I appreciate that by virtue of that condition, he would be more vulnerable if he were to contract COVID-19. However, the threat posed by the virus, although relevant, is not determinative of this application. I must balance Mr. Haughton’s risk of being infected with the virus while in custody against the risk to the public if he were to be released under the current plan.

[82] For the reasons stated, I have found that the plan of release is wholly inadequate and that Mr. Haughton’s risk of re-offending is substantial. Taking into account all of the circumstances, I am of the view that the risk to public safety in this case must override the health risks related to Mr. Haughton remaining in custody. Mr. Haughton’s continued detention is justified on the secondary ground. The Crown has met its onus in this regard.

Tertiary Ground

[83] While it is not necessary to consider the tertiary ground, I would note that in terms of the factors enumerated in s. 515(10)(c), the Crown’s case appears to be strong. On many of the counts, it appears to be very strong.

[84] Given his lengthy criminal record, which includes 14 convictions for break and enter and three convictions for attempting to break and enter, Mr. Haughton, upon conviction, would likely receive a significant penitentiary term. I note that his last conviction for break and enter was relatively recent – February 2018. It was followed by convictions for robbery and failing to comply with probation in August 2018, and convictions for theft and two counts of failing to comply with probation in November 2018. There is no significant gap in the record.

[85] Although the offences did not involve the use of a firearm or violence against others, they are nonetheless serious, for the reasons already stated. I note that the Court in St. Cloud, at para. 87, held that the application of s. 515(10)(c) is not limited to certain types of crimes. It should not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances.

[86] The circumstances surrounding the commission of the offences are set out at paras. 79 and 80 of these reasons. The sheer number of break-ins executed over a relatively short period of time is an aggravating circumstance. Many of them were carried out in rapid succession over the course of one night. Some businesses were targeted twice.

[87] The four factors listed in s. 515(10)(c) are not exhaustive. All the circumstances of the case must be taken into account in determining whether or not detention is necessary to maintain confidence in the administration of justice. One of those circumstances is the increased risk that people in custody face as a result of the COVID-19 pandemic: J.S.. Since Mr. Haughton has asthma, he would be more vulnerable if he contracted the virus.

[88] During their submissions, counsel referred to R. v. J.R., 2020 ONSC 1938, where Schreck J. considered the impact of COVID-19 on the tertiary ground. Reference was also made to R. v. Williams, 2020 ONSC 2237, where Stribopoulos J. considered the pandemic’s impact in assessing both the secondary and tertiary grounds. In both of these cases, the defence filed an affidavit by the epidemiologist, Dr. Aaron Orkin. The affidavit was not before me, but its contents are summarized in Williams at paras. 69-89, and in J.R. at paras. 28-31. Dr. Orkin’s evidence was not challenged by the Crown in either case.

[89] In his affidavit, Dr. Orkin discusses COVID-19 outbreaks in “congregate living facilities,” which is a public health term referring to settings where people live together, such as custodial facilities. Preventing outbreaks in these settings is a top priority for a “flattening-the-curve” strategy. The key measure for flattening the curve is social distancing and hence the need to reduce the population in custodial facilities. As Stribopoulos J. observed in Williams, at para. 89, Dr. Orkin’s opinion is not dependent on the state of any particular inmate’s health. Whether an inmate is old or young, frail or robust, in good health or suffering from pre-existing conditions, Dr. Orkin’s opinion remains the same: from a public health perspective, during the current pandemic, it would always be in the best interests not only of the inmate released but of the community at large to release an inmate to a less populated environment such as their own home.

[90] The community’s best interest with respect to managing the COVID-19 pandemic is no doubt a relevant consideration under the tertiary ground. However, it is important to remember that the question of detention or release under the tertiary ground is focused on the public’s perception of the administration of justice, which requires an examination of all the relevant factors as they relate to the particular accused before the court and whether that accused’s detention or release would bring the justice system into disrepute.

[91] While I appreciate that Mr. Haughton is at an increased risk of being infected by the virus if he remains in custody, it is my view that confidence in the administration of justice would be seriously eroded if he were released on bail. Although the increased risk of infection and Mr. Haughton’s vulnerability if he contracts the virus are serious concerns, they are factors that must be considered and balanced with the other tertiary ground factors already reviewed, along with all the circumstances of this particular case. One of those circumstances is the inadequacy of the plan of release and the very substantial risk of Mr. Haughton reoffending.

[92] Having considered all of the circumstances and the submissions of counsel, I find that public confidence in the administration of justice will be maintained by detaining Mr. Haughton notwithstanding the increased risk people in custody face as a result of COVD-19 and Mr. Haughton’s vulnerability if he contracted the virus.

[93] The Crown has met its onus on the tertiary ground.

[94] I would add that in coming to this conclusion, I have taken into account that Mr. Haughton’s trial has been delayed as a result of the COVID-19 pandemic. His trial, which was scheduled to commence in the Ontario Court of Justice in April 2020, has been postponed. A new trial date has not as yet been set.

[95] It is difficult to predict with any certainty how long the present health crisis will last and the impact it will have on the scheduling of trials. However, Mr. Haughton’s case should be given priority, given the fact that he is in custody. The Crown and defence counsel have indicated that they are attempting to shorten the trial somewhat by way of an agreed statement of facts.

Conclusion

[96] For the reasons given, the application for release is dismissed.

Garton J. Released: May 8, 2020