Court File and Parties
COURT FILE NO.: CRIMJ(P) 1572/19 DATE: 2020 04 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent E. Norman for the Crown
- and –
SOHAIL RAJAN Applicant D. Parry, for the Applicant defendant
HEARD: April 3, 2020
publication IS banNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE with respect to the evidence of the offences alleged against the applicant
REASONS ON BAIL APPLICATION
D.E HARRIS J.
[1] Sohail Rajan makes his fourth application for bail release pending his trial. Crown counsel agrees that there has been a material change of circumstances but opposes release. This bail hearing was held by way of audioconference due to the COVID-19 pandemic.
[2] I have with considerable reluctance come to the conclusion that the applicant’s argument that he should now be released on bail must succeed. The secondary ground which has been the main concern in the past has shifted and now weighs in favour of release. With reference to the tertiary ground, it has been fundamentally altered by the COVID-19 pandemic and the threat it poses to inmates and staff in the jails. The applicant has discharged his onus on the tertiary ground as well.
The Allegations
[3] The applicant had a brief relationship with the complainant between March and July of 2018. He moved into her Hamilton apartment.
[4] She broke up with him Canada Day weekend 2018 and texted him that he should come get his belongings. It is alleged that he then broke and entered her apartment, began to make off with her purse and cellphone and then, when she tried to get them back, assaulted her. A warrant was issued for his arrest.
[5] The complainant continued to see the applicant on and off for a period of two months. At different times, the applicant threatened the complainant, her father, her brother and her ex- boyfriend.
[6] Between August 29 and September 7, 2018, the applicant left almost 1000 messages on the complainant’s phone. She eventually changed her number. The applicant then began to send her emails. Some were threatening.
[7] At the end of October 2018, the complaint noticed several Instagram accounts attempting to follow her. There were threats which included pictures of dead bodies and firearms.
[8] On November 1, 2018, at approximately 3:00 a.m., the complainant heard a loud bang and glass shattering at her home where she resides with her two children. Her ex-boyfriend was staying at the house that evening because it was Halloween night.
[9] She also received an Instagram request from an unknown account on October 31, 2018, that contained a message that indirectly referred to her ex-boyfriend being at the residence.
[10] On November 10, 2018, she discovered what appeared to be a bullet hole in the top corner of a window on to the street. The police retrieved a bullet projectile from above the refrigerator in the kitchen and found a bullet hole in the window. There was evidence that the applicant was in his car outside the residence at the time the police were investigating at the apartment.
[11] The applicant was arrested several days later at the apartment in which he was staying. The police had been attempting to apprehend him since the warrant was issued for his arrest during the long weekend in August, four months earlier. They had spoken to him on the phone and he had refused to surrender himself.
[12] A search warrant was executed on the apartment where the applicant was discovered. A .38 black handgun was found in a satchel together with the applicant’s passport.
[13] In a pre-trial motion before Dennison J. in February, 2020, the handgun was excluded from evidence as a consequence of a violation of the applicant’s right to be free of unreasonable search and seizure protected by Section 8 of the Charter.
[14] The charges that remain against the applicant are break and enter and commit assault, threatening death, criminal harassment and discharge firearm.
The Previous Bail Proceedings
[15] By reason of the discharge of firearm count, this was and is a reverse onus situation for the applicant (Section 515(6)(vii) of the Criminal Code). Justice of the Peace Duggal detained the applicant on the secondary and tertiary grounds on November 23, 2018. A Section 520 of the Criminal Code bail review was brought before Andre J. on March 11, 2019. Justice Andre addressed the secondary ground concerns and was not satisfied that the plan presented by the applicant was sufficient. He dismissed the review.
[16] I did a further 90-day Myers review on November 12, 2019. In oral reasons, I held that I was not satisfied with respect to the secondary or tertiary grounds. The focus was mainly on the secondary grounds. I said, and this is from my notes and therefore may not be a direct quote:
The threats and the use of a firearm against the complainant leave no doubt that, whatever the supervision imposed, Mr. Rajan poses a real and palpable threat to the complainant. This predominates over all other aspects of this case.
[17] This remains the key concern on the question of release of the applicant.
THE SECONDARY GROUND
[18] This bail application is posited on a material change of circumstances. Ms. Norman for the Crown fairly concedes that there has been a change of circumstances based both on the exclusion of the firearm from the trial evidence and the COVID-19 crisis which has descended upon the world. Bail release should be considered anew: R. v. St. Cloud, 2015 SCC 27 at paras. 122-139.
[19] The secondary ground asks whether “detention is necessary for the protection or safety of the public” including “any substantial likelihood” that the accused will commit further offences if released: Section 515(10)(b) of the Criminal Code. Risk assessment involves the likelihood of further offences but, more significantly, the seriousness of any offences which might be committed. As I held in the reasons from November of last year, in this case, the secondary ground can be distilled down to a question of the risk the applicant poses to the complainant.
[20] The secondary ground is propelled by propensity reasoning. In evaluating this question, it is necessary to look at the applicant’s history as well as the allegations in this case. Lastly, when the proposed bail plan is added, are the risk factors sufficiently reduced enable is release on bail?
[21] The applicant’s history is unremarkable. He has a dated drinking and driving conviction which has little relevance to the question of bail.
[22] The main problem is, as all three bail judges have recognized, the allegations against the complainant are troubling. Domestic relationships which go sour have a notorious tendency to engender violent emotions. The positive emotional bonds of affection and love when they are reversed can lead to acts of violence and aggression.
[23] Two things have changed since I detained the applicant out of concern for the welfare and safety of the complainant in November of 2019. With the exclusion of the firearm in the pre-trial motion, the prosecution’s case against the applicant has substantially diminished. Before the exclusion, the projectile in the complainant’s kitchen could be matched back to the handgun found in the applicant’s residence, presenting a very powerful case against him. What is left now is a large body of motive to commit the offence evidence, part of it in the seemingly irrefutable form of texts and emails, and the evidence of a bullet being fired through the front window. That marks a change from a virtually overwhelming case to a far less compelling one.
[24] With the diminution of the Crown case comes a corresponding weakening of the propensity inference against the applicant. There is less force to the Crown position that the applicant shot through her window with a handgun.
[25] The other change is that the applicant has now accumulated more pre-trial custody than at the last bail hearing, 5 months more. He has now been in custody for 17 months in total. With the usual credit for pre-trial custody, that is equivalent to a sentence of just over 2 years. His trial is scheduled for September of this year. By that time, if the trial does proceed, he will have accumulated 5 more months, 7.5 months with pre-trial credit added. The total is equivalent to an almost 3 year sentence. That is substantial, although if convicted of the full slate of charges against him, he can expect a significantly longer term.
[26] The decision of the Supreme Court in R. v. Myers, 2019 SCC 18, (2019), 375 C.C.C. (3d) 293 at paras. 50-51 encourages a bail judge to determine whether pre-trial custody has become disproportionate to the seriousness of the allegations against the accused. If so, release will be appropriate. The Chief Justice said,
50 … the judge should also consider whether the time that has already elapsed has had — or the anticipated passage of time will have — an impact on the appropriateness or proportionality of the detention. In particular, it is necessary to be sensitive to whether the continued detention of the accused person could erode public confidence in the administration of justice: see, e.g., McCormack, at para. 29.
51 This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted: see, e.g., Sawrenko, at para. 43. The assessment must be informed by the need to reduce the risk of induced guilty pleas, which are profoundly detrimental to the integrity of the criminal justice system.
53 … In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice.
[27] Proportionality is not an issue comprehended by the text of the secondary ground itself but, as is apparent from this quotation, Myers nonetheless requires that it be assessed. Mr. Rajan’s liberty interest must be pitted against the need to protect the public. Will the likely length of the applicant’s detention be disproportionate when measured against the risk to the public and the secondary ground? See Myers at paras. 50-51, 53, 63.
[28] I do not believe that this itself is sufficient basis for release in this case. However, when combined with the erosion of the Crown’s case and the protections which can be put in place in a release order to safeguard the public and the complainant, in my view release on the secondary ground is appropriate.
[29] The sureties and the plan are the same as previously proposed. The applicant is to live with his mother. It is true that the applicant’s relationship with his mother does not appear to be extremely close. But they are close enough for the surety\accused relationship to work. She is a responsible person. She is retired and will be at home to closely administer a house arrest bail. The applicant’s mother will have a strong incentive to supervise the bail as she has pledged a significant portion of her pension. If he breaches any aspect of his bail, she is at risk of losing the entire amount. The applicant has every reason to comply with his bail, otherwise his mother stands to lose a good portion of her savings.
[30] The secondary sureties are the applicant’s sister and brother-in-law who live approximately 25 minutes away by car. They will add some extra comfort to appease any threat the applicant may pose to the complainant or others. They will be expected to stay in daily contact with the applicant and to take their surety obligations seriously.
[31] Electronic GPS monitoring is an important part of the plan. In this case, the bail release will be dependant on an alert going directly to the police as opposed to the surety, a condition which has been imposed in other bail releases. There is controversy in the jurisprudence whether electronic monitoring is of much solace on the secondary ground: see e.g. R. v. Palijan, [2012] O.J. No. 6549 (Ont. S.C.), at paras. 24-27, R. v. Ma, 2015 ONSC 7709, at paras. 54-57, R. v. Hammoe, 2016 ONSC 1790, at para. 60-63, United States v. Ugoh, 2011 ONSC 1810, at para. 11, R. v. Bahman, 2007 CarswellOnt 8246 (Ont. S.C.J.), at para. 23, R. v. Obi, 2015 ONSC 4444, at para. 36, R. v. Lami, 2016 CarswellOnt 20185, 2016 ONSC 8022, at paras. 9-10, R. v. Stojanovski, 2017 CarswellOnt 19649, 2017 ONSC 7194, at paras. 30-35, R. v. Lalonde, 2017 ONSC 1882, at para. 40, R. v. Larocque-Laplante, 2017 CarswellOnt 1860, 2017 ONSC 1038, at paras. 36-37.
[32] In some instances, electronic monitoring can be a valuable tool on bail. Monitoring can function as a specific deterrent on an individual released on bail. In the context of sentencing, the criminal law places reliance on the efficacy of specific deterrence. There is no reason not to extend the philosophy underlying specific deterrence to bail, albeit with some modifications. An accused person subject to electronic monitoring will know that not only will they be apprehended if they violate their house arrest but that the GPS device will produce cogent evidence to assist with their prosecution. To most, this will act as a real deterrent.
[33] The one thing that electronic monitoring cannot do is protect against an out of control, irrational accused who does not care about apprehension or prosecution. That is an important limitation particularly in the offences against the person and domestic violence context. But it does not lead to the conclusion that electronic monitoring is wholly ineffective. If the surety supervision is reasonably good, electronic monitoring remains a tool and a useful one. Nothing is a complete guarantee: R. v. T.L., 2020 ONSC 1885 at paras. 22-27.
[34] In the present context, with capable sureties supervising the applicant, electronic monitoring has real efficacy.
[35] For these reasons, I conclude the secondary ground has been satisfied.
The Tertiary Ground
[36] The COVID-19 pandemic will be recorded as a major event in human history. No one in our lifetime has been through anything like it. Although thankfully not on the scale of the Spanish flu of 1917-1918, it has left a trail of profound destruction and devastation. Some estimates put the eventual death toll in the millions.
[37] The present day effect around the globe has been enormous. Normal human activity has come to a standstill. At least in Canada, we are still at a relatively early stage. It cannot be known the course this plague on humanity will take.
[38] In the world we are living in, the proper application of the tertiary ground for refusing an accused bail has been radically altered. This ground of bail is not based on an accused’s risk to the community or the importance of ensuring attendance in court. It is anchored exclusively in the perceptions of the public and the maintenance of confidence in the system of bail.
[39] The simple fact is that a reasonable and informed member of the public would be wary of keeping alleged offenders in pre-trial custody for the sole purpose of advancing confidence in the system of justice. The dangers to the prison population--both inmates and staff--posed by the risk of contagion have reordered the usual calculus.
[40] The tertiary ground must, for the time being, be looked at in a new light. To demonstrate the change brought about by COVID-19 on this aspect of bail, it is important to first appreciate the nature of the tertiary ground. The tertiary ground is found in Section 515(10)(c) of the Criminal Code. It reads:
515 (10) ( c ) [Detention is justified] if the detention is necessary to maintain [public] confidence in the administration of justice, having regard to all the circumstances, including [1]
(i) the apparent strength of the prosecution's case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
(Emphasis Added)
[41] Justice Trotter, in his seminal book on bail (Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto, Ontario: Thomson Reuters Canada, 2017), at Section 3.4(b)), traces the history of the courts detaining alleged criminal offenders to encourage public confidence in the bail system. It goes back almost 50 years.
[42] The touchstone of the tertiary ground as it now reads in Section 515(10)(c) of the Code is the need to maintain public confidence in the administration of justice. Unlike the primary ground in Section 515(10)(a) of the Criminal Code, focussed on ensuring an accused person attends court, or the secondary ground in Section 515(1)(b), protecting the public from further offences if the accused is released, the tertiary ground revolves exclusively around the attitude of the pubic to the release of an offender on bail. Unlike the other two heads for the detention of an accused, this third ground is not concerned with what an accused might do or not do if released from custody.
[43] The tertiary ground is premised on the reasonable views of the public, as envisaged by the judiciary. When the four statutory factors in ss. i to iv are taken into account, the tertiary ground may require detention if there is a very serious, troubling crime alleged against the accused, it is likely that the accused will be convicted and when he is, that he will be incarcerated for a very substantial duration. It would be an affront to the public that in these circumstances, an accused be released into the community.
[44] The circumstances leading to tertiary ground detention have been frequently expressed in the jurisprudence. Chief Justice McLachlin put it well in R. v. Hall, 2002 SCC 64 at para. 40,
Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.
[45] Another similar statement can be found in R. v. Mordue (2006) at pp. 415-416:
Section 515(10)( c ) is designed so that a consideration of all the circumstances with special regard to the four key factors will result in a determination that maintains the public's confidence in the administration of justice. For example, where each of the four factors is assessed as having maximum force, a determination that refusal of bail
is necessary to maintain public confidence in the administration of justice is entirely to be expected.
[46] Lastly, Chief Justice Wagner said in his thorough discussion of the tertiary ground in the leading case of R. v. St. Cloud:
88 In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.
[47] The tertiary ground is a concession to practicality and stands as a limitation upon the presumption of innocence at the pre-trial stage. Even though presumed innocent, it would be a blot on the system of justice to release an accused from pre-trial custody if the four factors in the provision are satisfied.
[48] The concept behind the tertiary ground has not been uncontroversial. In Hall, it barely survived constitutional attack, the Supreme Court upholding its validity by a vote of five to four. And as Justice Trotter summarizes earlier challenges to the tertiary ground, some of the criticism was that “maintenance of public confidence in the administration of justice is a purpose extraneous to the bail system.” (Section 3.4(c))
[49] The views and confidence of the public anchoring the foundation of the tertiary ground are not gauged by referendum but by judicial interpretation of societal norms. It is a matter of judicial discretion. A reasonable person test is to be used. Chief Justice Wagner explained it this way in St. Cloud:
78… the reasonable person test "serves as a reminder to each individual judge that his discretion is grounded in community values, and, in particular, long term community values…
80 In short, the person in question in s. 515(10)( c ) Cr. C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society's fundamental values.
[50] It follows both from the statutory language of the tertiary ground and the structure of the provision with public confidence lying at its foundation that all relevant matters are encompassed by the maintain public confidence clause. The Chief Justice said in St. Cloud:
(c) The Listed Circumstances Are Not Exhaustive
68 Section 515(10)( c ) could not be worded more clearly: it refers to "all the circumstances, including ..."…
69 …The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision's purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination...
71 Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)( c ) Cr. C., I think it will be helpful to give a few examples. Section 515(10)( c )(iii) refers to the "circumstances surrounding the commission of the offence". I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.
(Emphasis Added)
[51] The conditions in which individuals awaiting trial are held must necessarily be comprehended within public confidence in criminal justice. Normally, a reasonable, informed, thoughtful member of the public would not be overly concerned with the impact of prison conditions on pre-trail custody.
[52] There are limits to this public tolerance, however. As Justice B. O’Marra put it recently,
No reasonable person expects detainees in custody to be coddled in luxury. However, people in Canada held in custody by the state have the right to be held in safe and clean surroundings.
R. v. Husbands, 2019 ONSC 6824 at para. 166
[53] It may be that prison conditions, although theoretically relevant, would not ordinarily assume significant proportions within the tertiary ground analysis. However, there is nothing ordinary about the COVID-19 crisis. These are extraordinary, dire times. The virus is highly contagious. People who contract the virus are at real risk of very serious illness or death. This is unquestionably a public emergency of a dimension not previously experienced in this country.
[54] There is one watchword heard loud and clear throughout the world today, including in this province. It is “social distancing” or “physical distancing.” This is the main tool advocated by the public health professionals and politicians around the globe to fight against the virus. Exposure to media of any kind demonstrates how the imperative of physical distancing is the constant, unmistakable refrain. All group activity, except out of absolute necessity, has ceased. The threat of exponential contagion must be fought head on by keeping people apart from each other. [2]
[55] COVID-19 has led the government to declare a state of emergency closing all businesses deemed non-essential. This is an unprecedented development. Gatherings of over 5 people are prohibited and funerals cannot proceed with more than 10 people (see COVID-19.ontario.ca; https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html). Gathering in groups is public enemy #1.
[56] In all of this upheaval, to be in a jail as an inmate or a staff member must count as one of the most dangerous places imaginable. Physical distancing in any true sense is simply not possible. One does not have to have been in a jail to realize this. A jail is a government-enforced congregation of people. That is inherent in its very concept. When density and human contact are to be avoided, jail cannot be a safe place to be.
[57] Inmates and staff are in close quarters in jail. This is true even if inmates were to be left in their cells for 24 hours a day, clearly not a workable situation in an institutional environment. I completely agree with Justice Copeland in R. v. J.S., 2020 ONSC 1710 at para. 19 when she recently said in relation to this issue,
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.
[58] These comments have been repeated by other colleagues: see R. v. T.L., at paras. 35-36; R. v. Budlakoti, unreported, released March 27, 2020, (ONSC); R. v. C.J., unreported, released March 27, 2020, Justice C. Conlan, Ont. S.C. at para. 9; R. v. King, 2020 ONSC 1935.
[59] Upon this hearing, as appears to be the current routine, the Crown filed a document entitled “Information Note: Institutional Services Response to COVID-19 dated April 1, 2020.” This memo outlines the steps that have been taken against COVID-19 in Ontario’s correctional institutions. As of that date, there had only been two positive tests in provincial jails although there were quite a few results pending at the time it was written. After summarizing the testing numbers, the memo states, “Given the size of our population, this is currently a very small risk factor.”
[60] The memo goes on to say,
If an outbreak of any communicable disease occurs or is suspected, institution officials will take immediate precautionary containment measures in accordance with operating procedures, including notifying the local Medical Officer of Health, and provincial health professionals.
[61] The memo outlines the steps being taken to protect medically vulnerable inmates, to screen new inmates (although not by testing them it does not seem), and to reduce the prison population.
[62] The efforts being made, however laudable they may be, cannot change the high level of risk within a correctional institution. That there are not many cases yet is of little consequence. The virus starts in one person but then can run like wildfire through an entire population. It can then be carried outside of the institution by the staff. That is the nature of a pandemic and of contagion. It can take hold at any time.
[63] The applicant’s risk is higher than most men of age 42. He suffers from serious psoriasis, an auto-immune disease. In September of 2019, there was an eruption on his trunk and extremities which ultimately covered his entire body. Pustules eventually formed. He was put on antibiotics. This disease makes him more vulnerable. The Ontario COVID website warns, “Your risk of severe disease may be higher if you have a weakened immune system.”
[64] The Prime Minister was quoted a week ago saying,
We are very concerned about the fact that our correctional institutions could be places … where there could be greater vulnerability to COVID-19….This is something we are digging into very carefully because we need to make sure we’re keeping everyone safe in this country.
[65] This is only good sense. It is a perspective that would be shared by a reasonable, thoughtful member of the public.
[66] There are major ramifications arising from the COVID-19 pandemic for the tertiary ground. In situations where the tertiary ground may have authorized detention in the past, the threat of COVID-19 to an individual seeking bail must now be incorporated into “all the circumstances” in Section 515(10)(c).
[67] The components of the public’s confidence in the criminal justice has been significantly altered as a result. The public is deemed to be reasonable, informed and not without compassion for those in prison. They would agree with the words of Nelson Mandela recently quoted by Justice Schreck in R. v. Persad, 2020 ONSC 188: “[N]o one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” People do not lose their humanity when they enter jails. And, of course, those held in pre-trial custody are not convicted criminals. They are presumed innocent.
[68] While the tertiary ground reasons for detention are based on a visceral reaction against release--a somewhat abstract notion premised on gauging the reasonable views of the public--the threat of COVID-19 in a jail setting is based on cold, hard scientific reality.
[69] The two must be counterbalanced against each other. The traditional grounds for the imposition of tertiary ground detention expressed in Hall, Mordue and St. Cloud as quoted above continue to militate towards detention. However, the threat of the virus pulls strongly in the other direction, towards release. In the end, the threat, if not the actuality of COVID-19, goes a long way to cancelling out the traditional basis for tertiary ground detention.
[70] The Canadian public understands the momentous nature of this crisis and would be greatly concerned for the health of inmates and staff in institutional settings. In the public’s mind, the real and tangible threat of contracting the virus may well supplant the otherwise negative reaction to the release of an accused person. The public is not short-sighted but would look at the long-term reputation of the administration of justice. In the face of the pandemic, bail release, in the absence of primary or secondary ground concerns, may well not shake the confidence of the public.
[71] I do not need to finally determine whether the case at hand would have justified detention on the tertiary ground prior to COVID-19. It should be said, however, that as a result of the exclusion of the gun and based on the length of pre-trial custody, the Crown’s case did not present a particularly compelling argument for tertiary ground detention in the first place. In any case, what is important is that when balanced against the threat of the virus to the applicant, the remaining circumstances cannot justify tertiary based detention.
[72] In a tertiary ground argument like the one at hand, Chief Justice Wagner’s words at paragraph 87 in St. Cloud are pertinent:
This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.
[73] Lest there be any mistake, it should be emphasized that this discussion and the effect of the virus on individuals applying for bail only pertains to the tertiary ground. The effect of COVID-19 on the primary and secondary grounds for detention was not raised as a significant issue on this hearing.
[74] Protection of the public from criminal activity is of superordinate importance and is covered by the secondary ground for detention. Those who constitute a serious physical threat to the public as illustrated by case law on the application of the secondary ground must remain for the time being in pre-trial custody despite the inimical environment which the virus may create. With respect to bail generally, the virus does not constitute a get out of jail free card. It does, however, require a reconfiguring and a rethinking of the application of the tertiary ground for detention of accused persons.
CONCLUSION
[75] For these reasons, I would grant bail, on the following terms:
Three sureties in the following amounts with no deposit: Rina Chauhan--$51,000 Shelina Ilic--$10,000 Borko Ilic--$10,000
With the following conditions:
a. Reside with Rina Chauhan at 213-3590, Kaneff Crescent, Mississauga, Ontario, b. Remain in your residence at all times EXCEPT in the immediate and direct presence of Rina Chauhan or Shelina Ilic or Borko Ilic or for emergency medical treatment, c. Remain in the province of Ontario, d. Attend court as necessary, e. Surrender all travel documents including passports and do not apply for any travel documents, f. At your expense, be monitored by Recovery Science Corporation ("RSC") according to the following conditions: i. Enter into RSC's Participant Agreement and comply with its terms. Ensure that RSC procedure is that in the event of an alert, notification will be directly to the officer-in-charge or his or her designate; ii. Wear a GPS ankle bracelet at all times; iii. Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; iv. Comply with RSC leave notification and battery charging requirements; and v. Cooperate and comply with all RSC requirements and staff directions. g. Not possess a weapon, firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance weapons or ammunition as defined by the Criminal Code; h. Not to be in possession of a cellphone, computer or any device capable of accessing the internet; i. Not to access the internet; j. Not to have any contact, direct or indirect, with the complainant in this matter [her name should be inserted for greater certainty] or to be within 500 meters of her place of work or where she is known to habituate or to be; k. Keep a copy of the recognizance on your person at all times.
[76] I would encourage counsel to make submissions by email to the trial coordinator for the purpose of refining or strengthening these proposed conditions.
D.E HARRIS J.
Released: April 6, 2020
Notes
[1] The word “public” appears in the French but not the English version of the provision but under standard rules of statutory interpretation and based on the Supreme Court of Canada’s leading decision in interpreting the tertiary ground, it is deemed to be included: R. v. St. Cloud, at paras. 5, 72, 77.
[2] Proof with respect to many COVID-19 factual issues, including the importance of physical distancing, is quintessentially a matter for judicial notice. No evidence need be tendered. In R. v. Find, 2001 SCC 32, McLachlin C.J. held that a court may "take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy" (para. 48). Both conditions are easily met here. It will be apparent from these comments that I disagree with the decision to the contrary in R. v. Jeyakanthan, 2020 ONSC 1984.