Court File and Parties

Court File No.: 20-4518 Date: 2020/04/03 Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. Jormond Fraser

Before: A.E. London-Weinstein J.

Counsel: Moiz Karimjee, for the Crown Sarah Ahsan, for Mr. Fraser

Heard: April 3, 2020

This Endorsement is subject to a publication ban under s. 520(9). However, due to the novelty of the subject matter, it may be published in its current format and may be used by these and other counsel in this and other Court proceedings.

Bail Review Endorsement

[1] Mr. Fraser seeks a review of his bail pursuant to s. 520 of the Criminal Code . This hearing was conducted by teleconference with the consent of the parties due to the COVID-19 pandemic. He was ordered detained by Justice Phillips on December 2, 2019 after Mr. Fraser sought review of the detention order issued by Justice of the Peace Seymour issued on October 22, 2019.

[2] The allegations against Mr. Fraser are that he violently assaulted, forcibly confined and sexually assaulted his former common law partner. He was later charged with breaching the conditions of his release by confronting her about retrieving his belongings. He was also later charged with sexual interference with a person under 16 years of age, invitation to sexual touching of a person under 16 years of age, sexual exploitation of a young person, and sexual assault relating to the complainant’s daughter. The charges relating to the complainant’s daughter are alleged to have occurred between the June 1, 2018 and the September 30, 2018. The 14-year-old complainant in that case disclosed the alleged sexual abuse to her school principal on January 14, 2020.

[3] The complainant is afraid of Mr. Fraser and advised police that his violence has been escalating. She described his behaviour as erratic.

[4] The complainant disclosed a series of incidents that occurred from September 1, 2019 to October 7, 2019. The complainant said that the accused believed she was cheating on him. He would lock her up for periods of time during the day while the children were in school. During these times, she was not permitted to have access to her cellphone. When police attended the home, they noted that the locks on two of the doors in the home had locks on the exterior of the doors, but not the interior.

[5] The complainant advised police that Mr. Fraser threatened to beat her, to break her jaw and to mess her up.

[6] She asked him to leave the home on October 4 and he refused to leave. As a result, she stayed with family for three days.

[7] On October 2, 2019, the complainant alleges that Mr. Fraser sexually assaulted her by forcibly making her perform fellatio, and then by vaginally penetrating her against her will.

[8] During the afternoon between September 30 to October 1, 2019, Mr. Fraser is alleged to have awoken her and tried to suffocate her by putting his hand over her nose. She did not lose consciousness. He had also put her in a headlock.

[9] In the afternoon of October 3, 2019, the complainant alleges that Mr. Fraser was still angry about her cheating on him, and as a result, he punched her in the back of her left shoulder and both thighs. She sustained bruising, she said.

[10] When police arrived on October 7, 2019 to arrest him, he initially spoke to police, but then fled on foot. He was captured and placed under arrest.

[11] On October 9, 2019, the complainant was out walking with her four young children. Mr. Fraser had been released on a recognizance of bail with a condition not to communicate with the complainant, nor to be within 500 meters of any place she may frequent. He was advised by police that he could attend once with police to retrieve his belongings.

[12] Mr. Fraser is alleged to have approached the complainant in the presence of her children and demanded the return of his items.

[13] Ms. Ahsan, counsel for Mr. Fraser, argues that the new plan of bail with a new surety and the addition of a GPS bracelet constitute a material change in circumstances such that it could affect the outcome of the bail hearing. In addition, Ms. Ahsan points to the emergence of the COVID-19 virus as posing a potential health and safety risk to prisoners at the Ottawa Carleton Detention Centre. Mr. Fraser is currently being housed not in an individual cell, but in a dorm with about 12 people. The beds are close together. Mr. Fraser is in remission from leukemia.

[14] I am of the view that the existence of the COVID-19 virus in Ottawa constitutes a material change in circumstances such that it permits me to conduct a de novo hearing under s. 520. In addition, a new surety, Ms. Genelle Carvery, is being proposed along with a GPS monitoring bracelet.

[15] I agree with the reasoning of Copeland J., in R. v. J.S., 2020 ONSC 1710. In that case, the court found that the greatly elevated risk posed to detained inmates from the COVID-19 virus as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.

[16] In R. v. T.K., 2020 ONSC 1935, Justice Goodman found the threat posed by the virus to also be potentially relevant to secondary ground concerns. In my view, the existence of the COVID-19 virus is relevant, but not determinative as to whether an individual plan of bail meets the primary, secondary and tertiary criteria governing release. The threat the virus poses to those housed in the detention center is one factor to be considered in the balancing which is required. The protection of the public must also be considered.

[17] Mr. Fraser was born on January 10, 1979. His criminal record has some 60 convictions, including 28 convictions for failing to comply with court orders. He has six assault convictions.

[18] The prior plan of bail proposed before Justice Phillips involved him living with the mother of his children, Ms. Simmonds. There was some evidence at the bail review in front of Justice Phillips that Mr. Fraser did not reside at the men’s shelter as dictated by his release, but instead resided with Ms. Simmonds until he was arrested and charged with breaching his conditions by confronting the complainant in the presence of her children.

[19] The new proposed plan of bail would have Mr. Fraser living in a basement apartment with Ms. Carvery, who is his younger cousin. Ms. Carvery is 26 and Mr. Fraser is 40.

[20] Justice Phillips noted, and I agree, that Mr. Fraser’s record reflects a capability for significant violence, and that this violence is regularly directed toward women in his life. Justice Phillips found that the presence of Ms. Simmonds as a surety could not offset Mr. Fraser’s long track record such that it could be said that there was not a substantial likelihood that he would commit additional offences if released.

[21] The current proposal is that Mr. Fraser move to the basement apartment with Ms. Carvery. Ms. Simmonds lives in the upper apartment. A GPS ankle bracelet would also be used. There was some evidence before me that child protection services wish to be alerted if Mr. Fraser is permitted to reside in the separate basement apartment with his children living with Ms. Simmonds in the upstairs apartment. I have no evidence that the children would be apprehended.

[22] The proposed surety in this matter genuinely wants to provide assistance to her uncle. However, there are a number of factors which have persuaded me that she is not a suitable surety for Mr. Fraser. The plan is to have Mr. Fraser and the proposed surety live in a one-bedroom basement apartment together. They have never lived together before.

[23] Ms. Carvery was previously a surety for a boyfriend. He was required to live with her. However, when they broke up, he was no longer living with her and had to seek an alternate address, with his father who was the alternate surety. Ms. Carvery did not call the police to notify them that he was not residing with her as required by his conditions of release. I understand that the boyfriend later sought an amendment to his bail conditions. However, the point is that as his surety, Ms. Carvery had a duty to notify police if the person under her supervision was not living with her and she failed to do that.

[24] Last year, the proposed surety engaged in acts of self-harm. In addition, she has cut herself while under stress. At present, she is stabilized and is taking a number of medications. She has post-traumatic stress disorder, depression, panic disorder, general anxiety disorder and has bi-polar disorder.

[25] I am aware that fear and misunderstanding often lead to prejudice against people with mental illness. This stigma can be pervasive even among service providers, and unfortunately, even by individuals working in the criminal justice system. I wish to make it explicitly clear that I am not referring to Mr. Karimjee, who conducted this hearing professionally. This prejudice and discrimination can lead to feelings of hopelessness in those who are trying to cope with their situation. Stigma can also cause serious barriers to diagnosis and treatment.

[26] Ms. Carvery is very well intentioned and is now stabilized with the correct medications. However, she has never lived with Mr. Fraser. He is much older. He also has a long history of not following court orders. I have concerns about her ability to meaningfully supervise Mr. Fraser.

[27] I am not satisfied that Mr. Fraser would follow the instructions of Ms. Carvery. There was evidence that she has also demonstrated some mistrust of police. This causes me some concern that she may not report him to police in the event of a breach, although she testified that she would do so. There was also evidence that child protection services wish to be notified if Mr. Fraser is permitted to reside in the basement apartment as Ms. Simmonds and the children would be living above him. I have no evidence that an apprehension would result, but concern has been expressed.

[28] Mr. Fraser testified by way of telephone in this hearing. He testified that he is sleeping in a bunk with 10 to 12 people. He does not have an individual cell.

[29] Mr. Fraser testified that social isolation and frequent hand washing are not possible under his current living conditions. I accept his evidence on this issue. I take judicial notice of the fact that social isolation and frequent hand washing are recommended by experts to help prevent the spread of the virus. The constant media proliferation of information regarding social distancing and hand washing have made these facts so notorious that I take judicial notice of them.

[30] Mr. Fraser is a leukemia survivor. It has been many years since he recovered. I do not have any evidence before me whether persons with a history of cancer, who are not currently receiving cancer therapy and do not have active cancer, are at an increased risk compared to others in their age group. Mr. Fraser testified that he is coughing up sputum with blood in the mornings when he rises. Mr. Fraser testified that he is terrified of contracting the virus. I find that his fear of the virus could be a relevant factor in regard to the secondary grounds. In other words, fear of contraction may provide motivation to follow conditions imposed by the court. By remaining in custody where he is bunking with a number of other individuals in close contact, he is at increased risk of contracting the virus.

[31] However, the risk of contraction of the virus, and whatever motivation it may provide to Mr. Fraser to follow court-imposed conditions, is just one of the considerations which must be balanced to determine if he has met his onus.

[32] Unfortunately, Mr. Fraser’s long record of not following court orders suggests that, despite the fear of the virus, there is still a substantial likelihood with this proposed plan with Ms. Carvery as the proposed surety, that he would commit additional criminal offences if released. The plan before me is insufficient to offset the substantial likelihood that Mr. Fraser will not adhere to his conditions.

[33] In coming to this determination, I have considered the threat of infection with the COVID-19 virus as one factor, amongst the many factors which must be balanced to determine whether Mr. Fraser has met his onus.

[34] It is with great reluctance that I concluded that Mr. Fraser has not met his onus on the secondary ground. I appreciate he is at increased risk of being infected by the virus if he remains in custody. I have to consider this factor along with the need to protect the public. Mr. Fraser’s record of disregarding court orders, and my doubts in regard to the ability of this surety to properly supervise Mr. Fraser, cause me to conclude that the risk of releasing Mr. Fraser into the community cannot be managed with this plan. He has not met his onus on the secondary ground. The order of Justice Phillips shall remain undisturbed and Mr. Fraser shall remain detained.

A. E. London-Weinstein J. Date: April 3, 2020