Court File and Parties
Court File No.: CR/20-43BR Date: 2020-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent J. Razaqpur, for the Public Prosecution Service of Canada
- and -
T. K. Applicant R. McCourt, for the Applicant
Heard: March 27, 2020
REASONS FOR RULING ON APPLICATION FOR JUDICIAL INTERIM RELEASE - SECTION 520 OF THE CRIMINAL CODE
This proceeding was brought and determined during the COVID-19 pandemic, after the Chief Justice of the Ontario Superior Court of Justice suspended regular court operations.
A.J. GOODMAN J.
[1] This is an application pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46 , for a review of the applicant’s detention order. The applicant, T.K. was detained following a bail hearing held on March 8, 2019 before Justice of the Peace Woloschuk in Hamilton.
[2] The applicant is charged with various offences, including possession of a Schedule 1 substance (methamphetamine) for the purpose of trafficking, possession of proceeds of crime under $5,000, and failing to comply with probation x4, all contrary to their respective provisions found in the Criminal Code and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).
[3] The applicant was found with 378 grams of methamphetamine arising from his arrest on January 25, 2019. Pursuant to s. 515(6)(d) of the Criminal Code , the show cause hearing was held as a reverse onus and the applicant was detained on the secondary ground.
[4] Due to the COVID-19 pandemic and the temporary closure of the Superior Court of Justice for all but urgent matters, the parties agreed that this s. 520 bail review could be heard in the applicant’s absence. In support of the review, the applicant filed an affidavit of the proposed surety and his own unsworn affidavit. The Crown did not seek to cross-examine the applicant. The matter proceeded by recorded telephone conference call wherein the parties called evidence and made oral submissions. Cases and other written materials were filed electronically.
[5] Today, the return date for my ruling, counsel appeared before me via videoconferencing. I provided both oral and written versions to the parties. [1]
Positions of the parties:
[6] In oral submissions, the applicant withdrew his claim that the Justice of the Peace erred in law, failed to adequately address the secondary ground concerns, or misapprehended some of the evidence heard at the bail hearing. In sum, there is no assertion of an error on the face of the record.
[7] On the basis of the evidence presented, Ms. McCourt argues that this Court is in a position to review the decision under the relevant authorities and principles and fashion a form of release to meet the primary and secondary grounds (and now implicating the tertiary ground advanced by the Crown). In support, the applicant is proposing a different surety than the one advanced at the bail hearing. The applicant submits that the new surety is a stronger surety and is able to provide better supervision.
[8] Counsel emphasizes that given the current situation, consideration ought to be made to the recent decision in R. v. J.S., 2020 ONSC 1710 , [2020] O.J. No. 1206 , as it pertains to a material change in circumstances arising from the ubiquitous pandemic situation in Ontario.
[9] In this case, the Crown concedes that the recent withdrawal of one Criminal Code charge is a material change in circumstances and agrees that this Court can consider the bail review de novo . The Crown says that while there has been a material change sufficient to warrant a bail review hearing, the applicant was nevertheless properly detained at the bail hearing. The charge involving methamphetamine is serious and is a reverse onus. Accordingly, the default position is one of detention and the “ladder principle” does not apply. Even where an accused meets his burden of reversing the onus, and it is determined that an accused may be released, the starting point is a highly onerous bail. The accused must demonstrate why a less stringent bail ought to apply: R. v. Ishmael, 2019 ONSC 596 , [2019] O.J. No. 474 at paras. 29-34 .
[10] On the facts of this case, the Crown responds that the primary, secondary, and tertiary grounds are engaged. The applicant has an extensive criminal record with 23 convictions, beginning in 1992; 10 of these convictions have been since 2017. He has three convictions for failing to attend court and he violated parole in 2018. The Crown says that since 2017 his record begins to reflect significant periods of credit for pre-sentence custody. The lack of fail to comply with recognizance convictions after April 2017 likely reflects the fact that he simply has not been granted bail on more recent charges due to his risk, rather than an indication of good behaviour while on bail.
[11] The Crown submits that there is a significant risk that the accused if released would abscond, and fail to attend court. The charges are extremely serious, and carry a maximum possible sentence of life imprisonment. Further, the quantity of methamphetamine seized is just over 378 grams. This represents a “substantial amount” of drugs consistent with a dealer capable of supplying other dealers at the multi-ounce level. The applicant is unquestionably looking at many years in the penitentiary if convicted. These factors support detention on the primary ground.
[12] In respect of the secondary ground, the Crown says that the applicant’s extensive record provides powerful grounds to believe that he will continue to commit offences if released on bail, which jeopardize the safety of the public. His record is replete with property crimes, violent crimes, weapons offences, drug trafficking and possession for the purpose of trafficking as recently as 2017. While on parole he violated its terms and was recommitted in 2017. Approximately one year before the crimes before the court, he was convicted of possession of a prohibited/restricted weapon, and after that two further assaults on different dates. Further, T.K. was, at the time of the current offences, breaching three separate probation orders, one of which contained a specific no-drug term. T.K.’s history demonstrates he is a violent drug dealer, and is highly likely to commit further serious offences if released on bail. These factors support detention on the secondary ground.
[13] With respect to the tertiary ground, the Crown refers the court to the factors set out in s. 515(10)(c). The prosecution’s case is very strong. The accused was essentially caught red-handed with the drugs when he was arrested. Further, the quantity is so large (over 1/3 of a kilogram) that there can be no argument that the drugs were possessed for anything other than the purpose of trafficking. If convicted, the applicant will be looking at significant penitentiary time. The circumstances surrounding the commission of the offence are also serious. The applicant was arrested outside, in public, carrying a very significant quantity of drugs. This suggests an imminent intent to distribute them. Further, as noted, at the time of the offences, he was breaching three probation orders, including a no-drugs clause. This demonstrates a lack of interest in complying with court orders.
[14] The Crown submits that the public would lose confidence in the administration of justice if the applicant, with his track record for violence, drug dealing, and failing to comply with court orders and parole, and who was caught with a very large volume of methamphetamine, was permitted to be released on bail in these circumstances. Finally, the Crown submits that there is simply no reason to believe that the proposed surety and plan can sufficiently mitigate the risk of absconding, the public safety risk, or jeopardizing the public’s confidence in the administration of justice.
Summary of the evidence:
[15] A summary of the allegations before Justice of the Peace Woloschuk has been furnished to me by counsel. The Justice of the Peace’s brief reasons for detention were also provided. Having reviewed the information in the context of the issues in this bail review, along with the Crown’s factum, which exposes the background details, I need not repeat them now. Suffice it to state that the Crown has a very strong case.
[16] The applicant has a lengthy criminal record. It stems from 1993 and continues to date. In Alberta, through the 1990’s, convictions include: assault x3, drive or care or control over 80 x2, mischief x2, fail to attend court x3, break and enter and theft. Post-2000, in Ontario, convictions include: assault x2, and fail to comply with recognizance. In April 2017, the applicant was convicted of assault and fail to comply with recognizance x2. Further, on April 25, 2017 he was convicted of possession of a schedule 1 substance, trafficking in schedule 1 substance and possession of a weapon x2. He received 9 months in jail after credit for 93 days of pre-sentence custody, along with 18 months probation. It is breaches of these very probation orders that contributed to the applicant’s current detention. In 2018, he was recommitted as a parole violator. In February 2018, in Hamilton, he was convicted of unauthorized possession of a weapon. In April 2018, he received a jail term for assault x2.
[17] With the affidavit filed, I heard the evidence of the proposed surety, M.W., albeit only orally by audioconference. M.W was thoroughly cross-examined by the Crown.
[18] As mentioned, I do not have a sworn affidavit from T.K. The affidavit filed predated the COVID-19 emergency order issued by the Province. Nonetheless, the contents of the applicant’s affidavit complies with the rules. He proposes living with the surety and claims that he will abide by all the rules that M.W prescribes as he does not want to ruin their relationship or have his friend forfeit large sums of money to the court.
Legal Principles:
[19] Briefly, the approach to a review under s. 520 or 521 of the Criminal Code has been altered since the release of the Supreme Court of Canada’s seminal decision in R. v. St-Cloud, 2015 SCC 27 , [2015] 2 S.C.R. 328 .
[20] At para. 120 of St-Cloud , the Supreme Court stated that a judge can review a Justice of the Peace's decision with respect to the detention or the interim release of an accused where new evidence is submitted by the accused or the prosecutor if that evidence shows a material and relevant change in the circumstances of the case.
[21] In St-Cloud , at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code , the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) "the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another"; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case.
[22] The fundamental rights require that the justice ensure that interim detention is truly justified having regard to all of the relevant circumstances of the case.
[23] In St-Cloud , the court held that in order for new evidence to be admissible at the bail hearing, four criteria must be met. The criteria are from the court’s prior decision concerning the admissibility of new evidence on appeal in Palmer v. The Queen (1979) , [1980] 1 S.C.R. 759 . The Palmer criteria were modified to suit the bail review context in St-Cloud . When new evidence meets the four criteria for admissibility, the reviewing judge can repeat the analysis for whether detention is justified as if he/she were the initial decision maker. The four Palmer criteria and the modifications in the bail context are as follows:
- The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial .
[24] In the context of a bail review, the reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for a reason that is legitimate and reasonable (para. 132).
- The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial .
[25] In the context of a bail review, it is sufficient that the evidence is relevant for the purposes of the bail review (para. 135).
- The evidence must be credible in the sense that it is reasonably capable of belief .
[26] This criterion must be interpreted in light of the relaxation of the rules of evidence at the bail stage (para. 136).
- It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result .
[27] This last, albeit important factor, stipulates that the fresh evidence on review must be “significant” in the sense that it must be reasonable that it could have impacted the balancing exercise undertaken by the justice (para. 137).
[28] In St-Cloud , the Supreme Court confirmed that the four criteria from Palmer v. The Queen , [1980] 1 S.C.R. 759 are relevant with necessary modifications to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 . However, application of these principles has to be flexible given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused and that the release hearing takes place at the very start of the criminal proceedings. Wagner J. (as he then was) states at para. 129 as follows:
In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr.C . Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr.C.
[29] Indeed, the Supreme Court rejected the Crown's submission for a narrow view regarding new evidence. At para. 131, Wagner J. (as he then was) wrote that "A generous and liberal interpretation of the meaning of "new evidence" in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this court". At para. 130, Wagner J. notes "that the pre-trial detention of accused persons -- like their release -- is by its nature very often interim and not final”: See also R. v. A.A.C, 2015 ONCA 483 , [2015] O.J. No. 3450 , at para. 52 .
[30] In addressing the primary ground, detention of the accused is justified where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.
[31] In accordance with the secondary ground, detention is justified where it is necessary for the protection or safety of the public having regard to all of the circumstances. It has been settled that in dealing with the secondary ground, the danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. Appellate courts have held that, in general, society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime. The denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any extraneous purpose.
[32] Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial risk” of committing an offence or interfering with the administration of justice, and only where this substantial likelihood endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. It is also well established that jurists must consider the approach directed by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27 , [2017] 1 S.C.R. 509.
[33] If there is a substantial likelihood that the accused will not comply or cooperate with the terms of the bail, he or she is likely to be denied bail on the principles and objectives of the bail provisions of the Code .
[34] The tertiary ground provides that the application of s. 515(10)(c) is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove that the detention of the accused is justified to maintain confidence in the administration of justice.
The Plan for Release:
[35] M.W. is proffered as the new, sole surety. The surety’s affidavit and testimony revealed that she lives and owns her own house in Hamilton, believed to be valued at $700,000. There is no mortgage on the home. She is currently retired. Prior to retirement, she worked as an Insurance Broker. She has been in management and positions of authority throughout her working career, and believes this experience will assist her in carrying out her responsibilities as a surety. She also receives Canada Pension Plan Disability benefits in the amount of $1,200 per month.
[36] M.W. admitted to having a criminal record, which she regrets. This includes convictions for impaired driving in 2019, and mischief under $5000 in 2018. At the time, she explained that she was going through a separation, which she understood is not an excuse, but was proffered as an explanation for behavior that was out of character.
[37] M.W. explained that “T is a long-time friend of mine and [I’ve] known him personally since about 2008”. T.K. was her neighbour from 2008-2012 when they both lived in Burlington. When she moved to Hamilton in 2012, T.K. and she remained in close contact. M.W. testified that she is aware of the current charges T.K. is facing. She deposed that “T’s lawyer has explained all of the charges to me and I understand that they are extremely serious”. M.W. conceded that she is aware of some, but not all of the applicant’s serious criminal record. Remaining friends, she did not seek to help him mend his ways in the past.
[38] M.W. advises that she has spoken with T over the phone, and has visited him in custody many times since he was arrested. She has discussed the following with T: “If appointed as surety, to consider myself as T’s “jailer in the community” and responsible for protecting society from any possible harm by T”. According to M.W., T.K. has changed since being incarcerated and wants to avoid being left in jail during the current crisis.
[39] M.W. deposed and testified that she fully understands the duties of a surety, and takes these responsibilities most seriously. “The plan should T be released is to have him live with me at my home under 24/7 house arrest and only be allowed out of the home in my direct company. I am prepared to continue with this house arrest until the pandemic situation resolves itself. As long as I’ve known T, he has had a renovation business. If T is released, it is my hope that he will be able to return to that business if the Court considered that appropriate. It may be that T can seek employment in the carpentry trade and I will accompany him to job sites. I have spoken to T since he was arrested and he understands that I will be very strict with him and will not hesitate to call the police if I have to.”
[40] In her affidavit, M.W. stated: “I am willing to pledge, as security, the amount of $5,000 in support of T’s release.” On cross-examination, she was willing to pledge up to $100,000 in support of the applicant’s release. When questioned on the issue by the Court and fully apprised of the estreatment process, M.W. understood that she could and likely would forfeit this substantial amount of money if T.K. breaches bail. Without reservation, M.W. expressed confidence that T.K. will abide by the conditions of the court and that she would take her responsibilities seriously.
Analysis:
[41] Recognizing that we are past the “material change of circumstances” threshold to invoke this de novo hearing, St-Cloud directs at para. 138 that:
If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified. The Palmer criteria, modified as I have just done, must not be applied in a manner that delays or needlessly complicates the release process. As I explained above, that process, by its very nature, generally requires an expeditious and flexible procedure. The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.
[42] While the Crown conceded a material change in circumstances to permit this hearing de novo , the applicant argues that the material change of circumstances provided to the court goes beyond the Crown’s concession. In effect, the new plan not only meets the threshold of material change, but goes further to tip the balance for release under s. 515(10) of the Code .
[43] As such, and without comingling the material tests under St-Cloud , the applicant’s assertions are relevant to the balancing exercise and an assessment of whether the court would permit a plan of release.
[44] Ms. McCourt stressed that this court ought to consider the “material change of circumstances” in favour of the appellant’s release with the new proposed plan. These considerations are:
(i) That the applicant has proposed a new plan of release with a suitable surety who can provide strict supervision and ensure she can comply with her obligations; and (ii) The recent COVID-19 pandemic.
Primary Ground:
[45] The nature of the offence along with the applicant’s past convictions for failing to attend court may give rise to a flight risk. Here, the Crown's position that these factors are instructive and demonstrate a concern about the primary ground may be valid. However, there must exist more than just generic concerns. With the current state of affairs in this country, including travel restrictions and from what I can glean from the applicant’s current resources, it is unlikely that flight from eventual prosecution will reasonably come to fruition. As such, I do not have any concerns on the primary ground.
Secondary Ground:
[46] While I was unable to assess the surety’s demeanour from a visual context, from what I could hear, the witness’ responses seemed honest and candid, making reasonable concessions when questioned by the Crown. I find her to be well-meaning, credible and up to the challenge of supervising T.K. The question remains whether that is enough to meet the onus for release.
[47] In addressing the Crown’s concerns in this case, counsel referred extensively to the very recent case of R. v. J.S. In that case, Copeland J. was tasked to consider a bail review premised on the tertiary ground; a case that arose after the pandemic emergency in Ontario was declared. [2] At para. 5, Copeland J. states:
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.
[48] Turning to the first material change, I observe that Copeland J. was specifically addressing the tertiary ground concerns in her case. The primary and secondary ground concerns that arise here were not present in J.S.
[49] As Hill J. stated in R. v. Ferguson, 2002 O.J. No. 1969 (S.C.) at para. 17 :
…Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.
[50] In my opinion, Ferguson is still good law in Ontario. As a general proposition, I am not persuaded that a change of sureties, or advancing new, increased number or enhanced sureties per se , amounts to a material change of circumstances, without something more or addressing the Palmer criteria. The law is clear that the new sureties must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: St-Cloud , at paras. 135, 137.
[51] In R. v. Obayendo, 2015 ONSC 6630 , [2015] O.J. No. 5705, the accused presented a new bail plan. At the initial bail hearing, the justice found that the sureties were inadequate, as adult supervision by someone who had control over the accused was necessary. At the bail review, the accused presented his uncle as a surety. The plan was for the accused to move from Ottawa to Calgary with his uncle, who was an authority figure in his life and away from the complainants. The court rejected the Crown’s argument that the new evidence did not meet the due diligence criterion for admissibility. The court further found that if the accused’s uncle had been in a position to offer himself as a surety at the initial bail hearing, the justice would likely have released the accused. For those reasons, there was a material change in circumstances justifying a re-weighing of factors and an eventual release.
[52] In R. v. Bonito, 2015 ONSC 4928 , [2015] O.J. No. 4629, the accused was detained at the initial hearing on the secondary and tertiary grounds for detention. At that hearing, the accused had put forward his mother and father as sureties. The Justice of the Peace found them to be unsuitable, noting that the mother had failed to report a breach on a prior occasion, and that the father had a criminal record. Further, the court noted that weapons and drugs had been found in the accused’s bedroom, and his parents had been unaware of what he had been doing in his bedroom.
[53] At the bail review, the accused argued that there was a material change in circumstances. The accused put forward two new sureties. The first surety was a family friend with whom the accused would live. The second surety was the accused’s uncle. He was prepared to offer a bond of $50,000 and offer the accused employment whereby the accused would be under his direct supervision. Between the two sureties, the plan was that the accused would remain on full house arrest. The court found that the new evidence could have impacted the justice’s decision on the secondary grounds.
[54] However, the court found that the new plan was not a material change in circumstances with respect to the justice’s findings on the tertiary ground for detention. Specifically, the court found that the new evidence would not have altered the decision that the justice reached. The court held at para. 45:
In my view, this is what caused J.P. Dresher to reach the conclusion that she did on the tertiary ground that “detention is necessary to maintain the confidence in the administration of justice.” Our case law is replete with decisions that admonish the courts of the need to protect the safety of the public and its confidence in judicial administration in circumstances where both drugs and firearms are found to be in the possession of an accused. J.P. Dresher was plainly alive to that jurisprudence, and had it firmly in mind in determining that the detention of Mr. Bonito on the tertiary ground was necessary in order to maintain public confidence in the administration of justice.
[55] In R. v. Samuels, 2015 ONSC 5798 , the accused argued that there was new evidence that showed a material and relevant change in circumstances. The new evidence was a different bail plan, namely that there would be new sureties, and that the accused would live in a different town with one of the new sureties. The accused also agreed to wear an ankle bracelet so that he could be electronically monitored. The court agreed with the Crown that the Palmer criteria had not been met. The court found that there was no real explanation as to why the sureties being proposed at the bail review stage were not put forward at the initial hearing. At paras. 19-20, the court held:
I agree that no real explanation has been provided as to why the sureties being proposed here were not put forward last time around. Applicant’s counsel says that this is not a case where the Applicant had the sureties available but chose not to ask them to do him this favour. What he says is that the sureties proposed here had not come forward at the time of the hearing on June 15th, and so therefore were not available at all to the Applicant. Absent these strong sureties,the Applicant put forward the somewhat weaker sureties that were rejected by the Justice.
In my view, the explanation that these sureties had not stepped forward last time around is really no explanation at all. The sureties now put forward by the Applicant are his godmother, his sister, and two long time family friends who state in their affidavits that they have known and looked after the Applicant most of his life. To say that these close relations had not stepped forward to help the Applicant at the time of his June 15th hearing is not exactly to say that they were not available; his sister was still his sister and his godmother was still his godmother, and had been since his birth. The more likely explanation is that they had not been approached, but that is just speculation; no actual explanation has been provided by the Applicant.
[56] The court further held that the change in sureties did not address the justice’s underlying concerns at the initial bail hearing. At the initial bail hearing, the justice found the sureties that were presented to be honest and credible individuals. The problem was not with the sureties, but with the accused, as he could not be trusted to obey court orders despite the honest and trustworthy sureties. Proposing additional sureties, therefore, did not address the main concern. With respect to the accused’s willingness to wear an ankle bracelet, the court found that there was insufficient evidence about the functionality of the device. Furthermore, the court agreed with the Crown that the change in the accused’s location alone was not a significant change in light of the facts. The accused’s detention order was upheld. [3]
[57] As the parties did not stress this point, I leave it for another day as to whether the first “material change” as expressed briefly in J.S. warrants further review as a threshold question or when reviewing a plan for release. Suffice it to state that I am not persuaded by the applicant that a change of a surety, per se, ought to enhance my acceptance of the proposed plan.
[58] Nonetheless, the applicant also stressed that the plan proposed to this court must be considered with due consideration to the second material change discussed in J.S. At para. 18 , Copeland J. states:
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.
[59] I completely concur. I also agree with the judges’ comments at para. 19 regarding the impact of COVID-19 as it applies to the detention centres.
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.
[60] While the consideration of this risk factor in J.S. is focused under the tertiary ground, I would go further and find that the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials (that are currently suspended) is also a valid factor when considering the secondary ground for detention; in particular for non-violent offenders on a bail review. [4]
[61] The Crown acknowledges the valid concerns raised by counsel and the jurist in J.S. In fact, I am advised that the Public Prosecution Service is reviewing cases on a file by file basis and may be taking a more “liberal” view of bail than usual. However, Mr. Razaqpur states that this cannot apply in every case, including the one at bar. T.K. is a high level methamphetamine drug trafficker - supplier to street level supplier, according to the criteria in R. v. Hay, 2013 O.J. No. 6493 at para. 11 . Again, the Crown emphasized that while no weapons were used, T.K. is facing significant penitentiary time.
[62] The Crown concedes that Wooley is well-intended and may be a suitable surety, yet argues that the release plan is not sufficient as T.K. is not a low risk to re-offend. T.K. had been released on numerous prior occasions and had breached those conditions and failed to attend court while committing other offences.
[63] Of significance, in addressing the tertiary ground, Mr. Razaqpur submits that public confidence in the administration of justice would be lost if violent drug dealers were released. The court cannot give the signal or perception that it is a “free for all”. The administration of justice would falter if the public were to perceive that due to strained resources the ability to ensure the safety of the public would be compromised. Consider that the police enforcement of bail terms or arresting repeat offenders on release may be hampered with the present situation. These are valid concerns raised by the Crown.
[64] A very recent case that came to my attention but not advanced by the parties is that of R. v. Nelson, 2020 ONSC 1728 . In Nelson , the accused was charged with serious, violent crimes and had a criminal record.
[65] While ultimately dismissing the application, Edwards J. recognized the pandemic and the heightened difficulty facing detainees, at paras. 40 – 42:
In the result I accept that Mr. Nelson, like everyone who is incarcerated at the present time, falls within a category of persons who are at heightened risk of contracting the virus. This is a truly regrettable fact given the admonition we are all living under – to practice social distancing. The fact someone is behind bars, often living in a cell where there is double and triple bunking, amply demonstrates how life behind bars is not conducive to social distancing.
Mr. Nelson, while at a heightened risk of contracting the virus, nonetheless is relatively young. There is no evidence his pre-existing physical or mental health puts him into a category of persons that contracting the virus could result in severe health issues or even death. I do not take lightly my decision to dismiss Mr. Nelson’s application. Mr. Nelson previously did not meet his onus on the secondary and tertiary grounds for release (as per the Reasons of Leibovich J.).
This is a case where given the seriousness of the charges; Mr. Nelson’s prior criminal record, the weakness of the proposed plan of release, and the absence of medical evidence demonstrating that Mr. Nelson may be more susceptible to contracting the virus and/or a heightened risk of symptomology, I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail. The application is dismissed.
[66] In R. v. Aden, 2019 ONSC 2043 , 2019 O.J. No. 2439 , Dawe J. had occasion to address a bail review of a violent offender and noted at para. 24:
The critical question, in my view, is whether the Applicant’s proposed release plan is sufficient to allay the concerns about public safety and the protection of the public that would be presented by the Applicant’s release on bail…
[67] While the current coronavirus is daunting and challenging, the court must be mindful of the risks of release of violent offenders back in the community for the sake of reducing the prison population in detention centres. In this regard, I agree entirely with Edwards J.’s sage analysis of the issue.
[68] Indeed, there is a delicate balance that need be put into play. However, drawing from St-Cloud , in my opinion, a reasonable and well-informed member of the public, about whose confidence in the administration of justice is concerned; being familiar with the basics of the rule of law and the fundamental values of criminal law, in conjunction with the ubiquitous nature of the current pandemic and a reasonable plan to address the release of non-violent offenders, would not lose confidence in the criminal justice system.
[69] All this is not to suggest that violent offenders or those who commit crimes of violence could never be released on a bail review. However, notwithstanding the current pandemic, this can only occur if and when the well-established principles from the jurisprudence are satisfactorily addressed and not merely regurgitating a plan of release that was rejected at first instance.
[70] Notwithstanding my favourable impression of M.W. as a potential surety and with no violence implicated in these offences; given the applicant’s criminal antecedents and his continual and wanton disregard for court orders, in “normal” times I would not likely find that the plan would be sufficient to address the secondary ground concerns. In this context, I would not need to address the tertiary ground. An accused person's release plan must be relevant to whether public confidence in the administration of justice is capable of being maintained: R. v. B.(A.) (2006) , 204 C.C.C. (3d) 490 (Ont. S.C.) , at p. 501 .
[71] Yet, as mentioned, we currently live in extraordinary and very challenging times. I take a moment to refer to the World Health Organization’s March 15, 2020 (Europe) report entitled: Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance. The preamble states:
People deprived of their liberty, such as people in prisons and other places of detention, are likely to be more vulnerable to the coronavirus disease (COVID-19) outbreak than the general population because of the confined conditions in which they live together for prolonged periods of time. Moreover, experience shows that prisons, jails and similar settings where people are gathered in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons. Prison health is therefore widely considered as public health. The response to COVID-19 in prisons and other places of detention is particularly challenging, requiring a whole-of-government and whole-of-society approach...
1.Widespread transmission of an infectious pathogen affecting the community at large poses a threat of introduction of the infectious agent into prisons and other places of detention; the risk of rapidly increasing transmission of the disease within prisons or other places of detention is likely to have an amplifying effect on the epidemic, swiftly multiplying the number of people affected. 2. Efforts to control COVID-19 in the community are likely to fail if strong infection prevention and control (IPC) measures, adequate testing, treatment and care are not carried out in prisons and other places of detention as well. 3. In many countries, responsibility for health-care provision in prisons and other places of detention lies with the Ministry of Justice/Internal Affairs. Even if this responsibility is held by the Ministry of Health, coordination and collaboration between health and justice sectors are paramount if the health of people in prisons and other places of detention and the wider community is to be protected. 4. People in prisons and other places of detention are already deprived of their liberty and may react differently to further restrictive measures imposed upon them.
[72] When I consider the current state of affairs in the detention centres and with due consideration to the COVID-19 pandemic, I am persuaded by Ms. McCourt that the applicant will abide by the release conditions imposed instead of remaining in detention awaiting trial months, if certainly not longer.
[73] In adding the COVID-19 pandemic into the proposed release plan’s “mix” and as expressed in J.S. , in this case, I am persuaded that the release plan proffered will address the Crown’s primary, secondary and tertiary concerns. At the same time, this decision is not intended to send out a message that due to the pandemic there exists a revolving door policy for offenders to commit crime with the expectation of release or that offenders can now benefit with a “get out of jail free” card. Indeed, if this were the case generally, it would erode the public confidence in the criminal justice system, especially as it pertains to violent offenders or crimes of violence.
[74] In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.
Disposition:
[75] The bail review application is granted. Judicial interim release is ordered on the following terms: There will be a release order with named surety, Michelle Wooley, in the amount of $50,000 without deposit or valuable security, but with conditions:
a) T.K. is to reside with the surety at M.W.’s residence in Hamilton and be amenable to the routine, rules and discipline of the home.
b) T.K is to remain in the residence at all times, 24/7 until the pandemic emergency is lifted by the Province. He is permitted to go out of the home in the direct and continuous company of the surety in order to obtain the necessaries of life or for medical or dental emergencies.
c) After the expiration of the pandemic emergency, T.K. may leave the residence in order to seek gainful employment outside of the residence, but must remain in the direct company of his surety outside of the home.
d) T.K. is not to possess any firearms, weapons, ammunition, crossbow or apply for any firearms acquisition certificate ;
e) T.K. is not to possess any illicit or non-medically prescribed drugs or substances, except with a valid prescription in his own name;
f) T.K. shall report to the Hamilton Police Service every Monday between 9 am and 11 am. During the COVID-19 emergency, T.K. shall call into the police by telephone. Following the termination of the emergency by the Province, T.K. shall report in person at the Hamilton Police Service central station.
g) T.K. shall present himself to the police at the front door of the residence upon demand, or respond to the telephone upon the request of the police in order to ensure compliance with this order;
h) If he is in possession of a passport, T.K. shall deposit his passport with the Hamilton Police Service within 24 hours of his release;
i) T.K. may have the use of a cell phone and internet only if provided to him by the surety and under the supervision of the surety, and
j) Other terms that counsel may advise.
A.J. GOODMAN J.
Released: March 30, 2020
COURT FILE NO .: CR/20-43BR DATE : 2020-03-30 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – T.K.
REASONS FOR RULING ON APPLICATION FOR JUDICIAL INTERIM RELEASE - SECTION 520 OF THE CRIMINAL CODE
A.J. Goodman J. Released: March 30, 2020
[1] I apologize to the reader in advance as this ruling was composed without administrative assistance and may contain formatting errors.
[2] Again, one must recognize that, unlike the case at bar, the threshold of material change in circumstances was at issue in J.S. Given the Crown’s concessions in this case, it may be that my entire analysis under this segment of my ruling is somewhat academic.
[3] Samuels was followed in R. v. Al Safi, 2018 ONSC 326 . See also R. v. Raymer, 2015 ONSC 668 , at para. 29 .
