COURT FILE NO.: CR-19-15006536 19-15006537 DATE: 20200424 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SHAHEED BACCHUS ALI Defendant/Applicant

Counsel: Tim DiMuzio, for the Crown W. Calvin Rosemond, for the Defendant/Applicant

Heard: April 17, 2020 by teleconference

Decision on Defence bail review application

SPIES J.

Overview

[1] The Applicant, Shaheed Bacchus Ali, was arrested on September 10, 2019 and charged with 22 offences. He was ordered detained on both the secondary and tertiary grounds after a contested bail hearing in the Ontario Court of Justice before Justice of the Peace Conacher on November 12, 2019 (“the Detention Order”). Lengthy written reasons for the Detention Order were given by the Justice of the Peace in a decision released on November 28, 2019.

[2] Mr. Ali has brought this application pursuant to s. 520(1) of the Criminal Code, R.S.C., 1985, c. C-46 for an order setting aside the Detention Order and granting him judicial interim release pending his trial on the basis that there have been two material changes since the Detention Order was made; first, what Mr. Ali submits is a substantially stronger plan of release and supervision than the one put forward before the Justice of the Peace and, second, the current COVID-19 pandemic.

[3] With the consent of the parties, I heard this bail review application by teleconference with the assistance of a Registrar and a court monitor who recorded the proceedings. Defence counsel was at his office and the sureties were present and able to hear and participate in the proceedings. Mr. Ali was also on the call from the Toronto South Detention Centre (“TSDC”), which is where he is currently detained. I reserved my decision to April 22, 2020 at which time I gave oral reasons for my decision granting the application. These are my written reasons.

The Issues

[4] Mr. DiMuzio did not agree that the current proposed supervision plan is materially different than the plan put forward before the Justice of the Peace, but he fairly conceded that, in light of the ongoing COVID-19 pandemic, there has been a material and relevant change in circumstances within the meaning of R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121. Although the case law is not uniform, this position is consistent with many of the decisions from this court, including R. v. J.S., 2020 ONSC 1710, at paras. 15 and 19, and R. v. Nelson, 2020 ONSC 1728, at para 2.

[5] In addition, for reasons I will come to, I am also of the view that there has been a material change in the plan of supervision now proposed. As a result, I am authorized to repeat the analysis under s. 515(10) of the Criminal Code as if I were the initial decision-maker. That said, since the Justice of the Peace had the benefit of observing the two proposed sureties as they gave evidence, and as it is not suggested that he made any errors in law, I will give his findings of fact some deference.

[6] Because of the charges for possession for the purpose of trafficking of the Schedule I substances, and the allegation of the breach of the s. 109 weapons’ prohibition order, there was no dispute that the onus is on Mr. Ali, pursuant to ss. 515(6) of the Criminal Code to show why his continued detention in custody should not be ordered. The Crown raised no concerns under the primary ground either before the Justice of the Peace or before me. I also, have no such concerns. Thus, the onus is on Mr. Ali to show that his detention is not necessary either on secondary ground or on the tertiary ground.

The Allegations

[7] On Tuesday, September 10, 2019, officers from Toronto Police 14 Division received information that Mr. Ali was in possession of two firearms. The Crown has asserted privilege with respect to the source of this information which I presume came from a confidential informant. According to the Police Synopsis, at approximately 4:51 p.m., Mr. Ali was observed in the area of Queen St W and Brock St, the Parkdale area, “exhibiting characteristics of an armed person”. As a result, he was arrested for possession of a firearm.

[8] During the search of Mr. Ali incident to arrest, the police located a loaded Smith and Wesson firearm in the Mr. Ali’s waist band and a second unloaded firearm, a Glock, with the serial number removed, in a grocery bag in Mr. Ali’s hand. This grocery bag also contained a bag of 27 rounds of 9-millimetre ammunition; $850 in cash (based on the photograph provided most bills appear to be either $20 or $10 bills); an empty ammunition magazine; and a significant quantity of drugs, namely, crack cocaine - 56.20 grams, powder cocaine - 19.27 grams, and fentanyl - 21.10 grams.

[9] As of the date of the hearing, only the fentanyl has been tested, but it was confirmed to be a combination of fentanyl, heroin and other drugs presumably used to cut the fentanyl. In addition, based on the photographs of the items seized, Mr. Ali was also found in possession of a switchblade knife and multiple cell phones.

[10] As a result, Mr. Ali was charged with a total of 22 counts. Twelve counts relate to the alleged possession of the two prohibited or restricted firearms and ammunition for those firearms as well as the magazine. In addition, there is a single count for possession of a prohibited weapon, namely the switchblade knife; six counts for possession and possession for the purpose of trafficking of the crack cocaine, powder cocaine and the fentanyl, all Schedule I drugs as defined in the Controlled Drugs and Substances Act, S.C. 1996, c. 19; one count of possession of proceeds of crime; and, finally, one count for violation of a weapons’ prohibition order pursuant to s. 109(2)(b) of the Criminal Code – although based on his criminal record, as I will come to, Mr. Ali was subject to four weapons’ prohibition orders at the time of these alleged offences.

The Proposed Plan of Release

[11] In summary, the current plan of release that is proposed is that Mr. Ali will wear a GPS monitoring bracelet, be confined to his home where he lives with his wife 24/7 save for going out with one of his two sureties, and that those sureties, his wife Meisha Hildalgo-Diaz and his older brother Jabar Ali, would supervise him 24/7.

[12] Mr. DiMuzio argued that the plan now proposed is not much different than the plan put forward before the Justice of the Peace in that it was proposed before him that these two sureties would work together to provide 24-hour supervision just as they are proposing now. I disagree as the plan before the Justice of the Peace was that Ms. Hildalgo-Diaz would primarily supervise Mr. Ali but that when she was at work, his brother, Mr. Jabar Ali would check in on him by phone or by visiting, at random. They did not propose 24/7 supervision or GPS monitoring.

[13] Mr. DiMuzio further submitted that to the extent the plan has expanded, it could have been offered at the original bail hearing. I agree that the constant supervision by the two sureties could have been offered originally but now there is also the requirement of GPS monitoring. Although arguably this could also have been offered originally, in my view, the current plan is materially different from the plan put before the Justice of the Peace because it offers 24/7 supervision by the sureties supported by GPS monitoring.

Positions of Counsel

[14] Mr. Rosemond submitted that since the improved plan of supervision now provides for around the clock, 24/7 supervision of Mr. Ali by one of his two sureties and Mr. Ali has now offered to wear a GPS ankle bracelet and be subject to GPS monitoring by Recovery Science Corporation, this satisfies any secondary ground concerns. Mr. Rosemond further submitted that the tertiary ground has been satisfied because of the COVID-19 pandemic and Mr. Ali’s respiratory condition.

[15] Mr. DiMuzio, however, submitted that because of Mr. Ali’s extensive criminal record, the nature of the current charges, the quality of the sureties, and the fact there is no current medical evidence before this court with respect to Mr. Ali’s risk should he contract COVID-19, Mr. Ali should be detained on both the secondary and tertiary grounds.

The Evidence

[16] At the bail hearing, the Justice of the Peace had the information set out in the police synopsis related to the 22 charges against Mr. Ali, set out above, as well as a copy of his criminal record and an affidavit from each of the two proposed sureties. In addition, both sureties testified at the original bail hearing. I had the benefit of a transcript of the proceedings before the Justice of the Peace, as well as a further affidavit from Ms. Hildalgo-Diaz for the bail review hearing and various documents filed by both the Crown and the Defence, which I will come to. In addition, both sureties gave further brief evidence during the bail review hearing before me. Mr. Ali provided a brief affidavit on his original bail application, but he did not testify either before the Justice of the Peace or on the bail review hearing.

[17] In summary, the evidence before me is as follows.

Affidavit of Shaheed Ali

[18] Mr. Ali is 38 and a Canadian citizen. He does not provide any background information in his affidavit about his personal circumstances including his health or his experience in custody. He deposed that he understood that his wife and brother were each proposing themselves as his surety, that they had both pledged significant money relative to their means as part of the collateral for his release, and that he would not breach their trust.

[19] Mr. Ali did not file a further affidavit advising that he consents to the new plan and, in particular, that he will wear a GPS bracelet. I presume, given the position of his counsel and his sureties, that he does consent to this proposal.

Mr. Ali’s Criminal Record

[20] Mr. Ali’s criminal record has regular entries starting in January 2002, when he was 20 years old, and continues consistently, with one notable gap, until July 2016. In the period from January 2002 until June 2009, Mr. Ali was convicted of:

• trafficking in a Schedule I substance x5;
• possession of a Schedule I substance for the purpose of trafficking x3;
• possession of a Schedule I substance x1;
• possession of a prohibited or restricted firearm obtained by crime x1;
• possession of a prohibited or restricted firearm with ammunition x1;
• possession of property obtained by crime x1;
• failing to comply with a recognizance x4; and
• failing to comply with probation order x1.

[21] The early drug convictions resulted in various jail sentences, and, for the firearms and trafficking convictions in September 2006, Mr. Ali was sentenced to a 30-month prison sentence. He was also recommitted to prison in August 2008, having been found to have violated his statutory release. Thereafter, there was one further conviction for possession of a Schedule I substance in June 2009.

[22] It was around this time that Mr. Ali and Ms. Hildalgo-Diaz met, and they soon began to live together at least off and on. I mention this now as it does seem that Ms. Hildalgo-Diaz had somewhat of a positive influence on Mr. Ali for almost seven years because apart from an assault conviction in March 2012, for which he received a suspended sentence and 12 months’ probation in addition to three days pre-sentence custody, which suggests it was not at the serious end of the scale, Mr. Ali’s criminal record has a gap from June 2009 until March 2016.

[23] Unfortunately, March 2016 is when this period of law-abiding behaviour by Mr. Ali came to an end. In March 2016 he was convicted of possession of a Schedule II substance. In July 2016 he was convicted from what appears to have been two different arrests for possession of a Schedule I substance for the purpose of trafficking, for which he was sentenced to 280 days plus a credit for the equivalent of four months and 15 days pre-sentence custody, as well as possession of a Schedule I substance and failing to comply with a recognizance for which he received an eight month conditional sentence.

[24] As a result of these various convictions since 2002, Mr. Ali was also sentenced by my count to five mandatory s. 109 weapons’ prohibition orders and one discretionary s. 110 order.

Evidence of Ms. Hildalgo-Diaz

[25] Ms. Hildalgo-Diaz is 41 years old. She deposed that she has known Mr. Ali for 12 years and that she met him when they were both enrolled at Burnhamthorpe Learning Centre in 2008. At the time she gave evidence before the Justice of the Peace on November 6, 2019, she testified that while they have been married for a year, they have been living common law since sometime in 2009. Later in her evidence before the Justice of the Peace, Ms. Hildalgo-Diaz said that Mr. Ali only lived with her on and off because he sometimes lived with his mother who had cancer. His mother is now deceased.

[26] Ms. Hildalgo-Diaz has six children (aged 20, 17, 13, 11, 9 and 8) who are all living with her in a five-bedroom town house in a Toronto Community Housing Complex at 107 Humber Boulevard, Unit 5, Toronto, Ontario, M6N 2H4. There are four floors to the house including the basement where one of the bedrooms is located. They also have a front and back yard. Ms. Hildalgo-Diaz deposed that each of her children, the two youngest of which are Mr. Ali's biologically, are content with Mr. Ali living with them, and that, to her children, he is like a father figure. Neither Ms. Hildalgo-Diaz nor her children have a criminal record.

[27] In 2006 Ms. Hildalgo-Diaz received a College Degree from the Academy of Learning. She currently works through CAMH at Regeneration Community Services as a Case Manager and Residential Support Worker, assisting people with mental, health and addiction issues. She produces incident reports when there are problems with her clients, and she shares those with police when it is required if any of her clients fail to follow their bail conditions and so she testified that she is used to making these types of calls. She has held this position for three years.

[28] Ms. Hildalgo-Diaz works part-time and at the time of the original bail hearing, she said that she was usually working 25 hours per week. Currently she has increased her hours to as much as 32 hours per week so she can afford to pay for the GPS monitoring that is now being proposed. Her shifts are typically from 7:00 a.m. to 3:00 p.m. She testified at the original bail hearing that she could monitor Mr. Ali because she was thinking of getting the home monitoring system through Bell, but it does not appear that she has done so. The plan before the Justice of the Peace was that she would supervise Mr. Ali and that when she was at work, Mr. Jaber Ali would randomly call or drop in at her home to check on Mr. Ali.

[29] Ms. Hildalgo-Diaz testified that Mr. Ali is on the Ontario Disability Support Program but that he is still able to work, albeit not at a job that requires heavy lifting. According to Ms. Hildalgo-Diaz, Mr. Ali does paperwork on occasion for Mr. Jaber Ali’s construction company.

[30] In the original bail hearing, Ms. Hildalgo-Diaz offered to pledge $30,000, which she deposed was all of her savings and is a significant amount of money for her. She now is offering $25,000 because she wants to reserve $5,000 if she needs it to pay for the GPS monitoring. That way, if the number of shifts she works goes down after the COVID-19 pandemic subsides, she will be able to continue to pay for the monitoring.

[31] In her first affidavit, Ms. Hildalgo-Diaz deposed that she believes Mr. Ali will listen to her and abide by the rules of the court because she claimed that he has a lot of respect for her and he listens to her, and because she believed that he understands that she will not hesitate to call the police if he breaches his bail.

[32] Ms. Hildalgo-Diaz testified that she was Mr. Ali’s surety on two or three previous bails and that he was on house arrest for one of them. She testified that there were no issues with respect to breaches on those bails and she never had to call police. She was very vague about which times she acted as a surety but said that she did so with Mr. Jaber Ali and that they worked together as a team. For the times when Mr. Ali was charged with breaches, she claimed that it was his mother who was his surety. There is no evidence before me to contradict her evidence in this regard.

[33] Ms. Hildalgo-Diaz admitted that she became aware that Mr. Ali had been convicted in 2006 for possession of a firearm after she met him. She also admitted that she was aware that since then he has a “bit of a history for dealing drugs and getting drugs,” but stated that she was not aware of what he has been doing and that he does not deal drugs in her home. When she was cross-examined more closely about whether she understood that her husband was a drug dealer, as the Justice of the Peace put it, at para. 24 of his written reasons: “Ms. Hidalgo-Diaz responded to the effect that her husband was responsible for his own decisions, that those things happened while she wasn't his surety, that he didn't breach when she was his surety and that, in any event, overall she has had a positive influence on his behaviour.” As I understood her evidence, Ms. Hildalgo-Diaz was essentially of the view that when she was not Mr. Ali’s surety, she was not watching him, did not have to “baby sit him”, and that he was responsible for his own decisions.

[34] Ms. Hildalgo-Diaz’s cross-examination was marked by multiple objections that were made in the presence of Ms. Hildalgo-Diaz and for the most part, in my view, were improper. She clearly did not want to admit that Mr. Ali had been convicted of further drug offences after they were living common law or that as a result, she must have known that he was dealing drugs at certain times and that Mr. Ali had continued as a drug dealer. For example, with respect to the 2016 convictions, she testified that she could not remember back to 2016. This evidence is totally incredible because Mr. Ali was incarcerated for a lengthy period of time for the convictions in July 2016. Furthermore, when Ms. Hildalgo-Diaz was challenged on whether or not she was aware of Mr. Ali’s record, she always insisted that she was.

[35] As for the current charges, Ms. Hildalgo-Diaz testified that before Mr. Ali’s arrest she was searching the house “all the time” although she said this was because of the children and because she was cleaning up to get ready to move, not because she was concerned about what Mr. Ali was hiding in the house. To her knowledge, Mr. Ali does not have another residence, or a storage locker and she insisted that there are no firearms or drugs in her residence. She also testified that if she had known Mr. Ali was in possession of two firearms that she would have called the police and had him removed from the house and not be around her and her children.

[36] It does seem that Ms. Hildalgo-Diaz has attempted to change Mr. Ali’s ways. She testified that a really close friend of hers, who is a detective with the Guns and Gangs Unit of 12 Division, has spoken to her and Mr. Ali and that others have done the same. Ms. Hildalgo-Diaz also did not want to admit that, despite all of her efforts and the efforts of others to persuade Mr. Ali to change his ways, he had continued his unlawful behaviour. She seemed to imply that Mr. Ali’s ongoing unlawful behaviour was because he had never been ordered to see a psychiatrist. Although I agree with Ms. Hildalgo-Diaz that since Mr. Ali has been with her his convictions have slowed down, clearly, he has not gotten the message to change his ways despite her best efforts. Given Mr. Ali’s criminal record, in my view, there is a strong likelihood he would reoffend if he is not properly supervised.

[37] Ms. Hildalgo-Diaz testified that two months prior to Mr. Ali’s arrest, he was attacked at knife point and stabbed and slashed in the face as part of a robbery of money she had given him to deposit. She stated that Mr. Ali nearly lost his life and that he is suffering from PTSD as a result of this assault, although I note that Mr. Ali made no mention of this in his affidavit.

[38] According to Ms. Hildalgo-Diaz, although Mr. Ali smokes marihuana recreationally, he is not otherwise a drug user. She did however suggest that Mr. Ali had received some counselling for drug use in 2010. Later in her evidence, Ms. Hildalgo-Diaz said that Mr. Ali no longer smokes marihuana.

[39] As compared to the plan before the Justice of the Peace, Ms. Hildalgo-Diaz testified that the plan now proposed is that Mr. Jabar Ali would come to her home to supervise Mr. Ali when she leaves for work and he would remain there, with Mr. Ali, until she returns home. If for some reason Mr. Jabar Ali could not come, she would not go to work.

[40] In her second affidavit Ms. Hildalgo-Diaz deposed that Mr. Ali uses a puffer from time to time. During the course of our hearing, we had to pause when the guard who was with Mr. Ali interrupted the proceedings to state that Mr. Ali needed to use his puffer. That may have been contrived by Mr. Ali given what was being discussed at that time, but this incident does confirm that he has a puffer with him while in custody.

[41] I asked Ms. Hildalgo-Diaz what she would do to deal with the possibility that Mr. Ali has COVID-19 should he be released. She advised that he could self-isolate and sleep in a bedroom in the basement for 14 days. In terms of her risk of COVID-19, she advised that she drives to and from work and while at work she wears a mask and gloves. She works at one of two residential homes and so far, there are no COVID-19 cases at either home.

Evidence of Jabar Ali

[42] Mr. Jabar Ali is Mr. Ali’s older stepbrother with whom he shares a father. He is divorced and has five children, but they are with their mother. He has a single entry on his criminal record from 2009 for assault. He has no outstanding charges. Mr. Jabar Ali lives with his mother. She takes care of rent and he helps pay for groceries and her other needs.

[43] Mr. Jabar Ali is the sole proprietor of JNS Renovations which he has operated for the last 17 years. He stated that he was a surety for his brother back in April 2014 and that there were no breaches. This evidence was not contradicted.

[44] In his affidavit, Mr. Jabar Ali deposed that he has a strong relationship with Ms. Hildalgo-Diaz and that he is confident that they can supervise his brother and enforce any bail together. He testified that he generally works alone and that his work is approximately within a five to 10-minute radius away “most of the time”. Mr. Jabar Ali contradicted the evidence of Ms. Hildalgo-Diaz and testified that while his brother had helped him on jobs such as holding up drywall, he had not helped him with paperwork.

[45] Mr. Jabar Ali clearly did not know his brother as well as his affidavit suggests. He had not seen his criminal record and was not aware that Mr. Ali had breached bail before. What he did know was that his brother had a “little minor this and that”. He did not know that his brother had been away for months in prison. When he was taken through his brother’s criminal record, he admitted that he was unaware that his brother had a problem with the law in terms of drug trafficking.

[46] In his evidence before me, Mr. Jabar Ali testified that he makes up his own schedule, that he often works in the evenings and that he can adjust his work schedule so that he can be with his brother in his brother’s home when Ms. Hildalgo-Diaz is at work. He would stay with him until she returned even if she had to work late. His work is slow right now but prior to the COVID-19 pandemic, he typically only had one job at a time. Mr. Jabar Ali admitted that there might be times when he would be required at work even if he had a helper, but I understood that on those occasions, he and Ms. Hildalgo-Diaz would coordinate their time as she knows her shifts in advance.

[47] Mr. Jabar Ali is willing to pledge $10,000 for his brother's bail, which he deposed comprises all of his savings, is money that he has worked very hard to earn and is a significant amount of money to him.

Note by Dr. Matthew Mazurek dated July 3, 2018

[48] Mr. Rosemond filed a copy of a note from Dr. Mazurek dated July 3, 2018, which appears to have been written to support a request for funding for air conditioning units in the bedrooms of two of the children and Mr. Ali’s bedroom. The note states that the two children have diagnosed asthma which is triggered by high temperatures. With respect to Mr. Ali, it states that he has “symptoms of cough and wheeze with high temperatures which may be asthma or reactive airway disease variant”. Mr. Rosemond submitted that the children in question are Mr. Ali’s biological children, implying that this is why Mr. Ali has these issues, but there is no evidence of that and, in fact, there is no evidence from Mr. Ali that he suffers from any respiratory illness or that he needs a puffer.

Information Notes - Institutional Services Response to COVID-19

[49] The Crown filed two Information Notes entitled the Institutional Services Response to COVID-19; the first dated March 30, 2020 and the second dated April 6, 2020 (Information Notes #1 and #2 respectively).

[50] Information Note #1 has more detailed information about the TSDC than the more recent Note, albeit now somewhat dated. Information Note #1 states that as of March 30, 2020, there are 987 inmates in custody, which is within operational capacity and that this is reduced from the 1,176 inmates that were in custody as of March 16, 2020. TSDC has experienced several lockdowns due to staffing shortages during this period. However, through efforts to increase staffing levels, the number of staffing-related lockdowns has decreased, and the number of living units impacted by each lockdown has also decreased. During periods of lockdown, inmates continue to have access to meals, showers, and professional visits. Inmates continue to attend court in-person as necessary, though almost all court hearings are now being held via video or telephone.

[51] The Information Note #2 dated April 6, 2020 states that as of that date, there were two positive cases of inmates at TSDC and that “given the size of our population, this is currently a very small risk factor”. As of April 3, 2020, two staff and one third party contract worker had tested positive for COVID-19 at three institutions including TDSC.

[52] These Information Notes set out what strategies have been implemented to limit the effects of COVID-19 on Ontario’s inmate population and correctional staff. This includes reducing the population in Ontario’s institutions and states that as of April 6, 2020, there had been a 26% reduction in the number of inmates in custody in all Ontario institutions.

[53] Both Information Notes set out all of the other specific actions taken by the institutions to reduce the risk of COVID-19. Information Note #1 sets out the TSDC’s specific actions which include developing an information channel that can be played on inmate TV’s including instructional materials on handwashing, cough etiquette, and how inmates can help keep the institution COVID -19 free, ensuring that the TSDC healthcare services have staff on duty 24/7, and maintaining negative-pressure rooms which help reduce the possibility of transmitting viral infections and can be used to medically isolate at-risk inmates.

[54] Information #2 concludes that “working closely with the Ministry of Health, Public Health, the Ministry of the Attorney General, the Ontario and Superior Courts and our Community Safety partners, we are confident in the care we are providing our inmate population”.

Affidavit of Dr. Aaron Orkin

[55] The Defence filed an affidavit from Dr. Aaron Orkin, a physician specialist in Public Health and Preventive Medicine. He is currently the Medical Director of the St. Joseph’s Health Centre COVID-19 Assessment Centre and the Population Medicine Lead for Inner City Health Associates where he plays a central role in planning and implementing a strategy to respond to COVID-19 among people experiencing homelessness in Toronto.

[56] In his affidavit, Dr. Orkin begins with the proposition that the health status of people experiencing incarceration is substantially worse than the rest of the public although he gives no source for this statement. I accept that if this is true, speaking generally, his further statement that this means that inmates have a higher chance of intensive-care admission or death if they get COVID-19 is correct. Dr. Orkin goes on to state that the degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently located in these facilities as there is simply not enough space. Shared facilities such as toilets, telephones, dining spaces etc. represent additional hazards.

[57] Based on these statements Dr. Orkin states that even reducing the population of individuals who are in good health in correctional facilities is important to protect the health of those who have health problems in those facilities. He also states that insufficient social distancing in prisons is hazardous to the health of corrections staff and by extension, their families and others with whom they come in contact. Despite social distancing and other efforts, Dr. Orkin is of the opinion that it is extremely likely that COVID-19 will occur in correctional facilities and that once an outbreak takes hold, there will not be capacity to transfer all people with COVID-19 out of correctional facilities and into hospitals. People in correctional facilities with mild symptoms will need to convalesce and recover in isolation in correctional facilities in the presence of individuals with active and known infection. As a result, Dr. Orkin is of the view that there is a critical need for more space and social distancing in advance of this eventuality.

[58] For these reasons, Dr. Orkin is of the opinion that every person who is discharged from a correctional facility to a private residence is an opportunity to flatten the curve and improve the health of the individual involved, other inmates in the facility in question, staff at the facility in question, and the public. Decanting the existing population in correctional facilities – especially those who are healthy and able to self-isolate in lower density private residences – will reduce the population density in correctional facilities and therefore reduce the risk of infection for both the individuals who are discharged from those facilities and the people who remain there. Dr. Orkin further states that the health of a particular inmate is irrelevant to his recommendations and that from a public health perspective, during the current pandemic, it would always be in the best interest, not only of the inmate, but of the community at large to release the inmate to a less populated environment such as their own home.

[59] Dr. Orkin also states in his affidavit that he reviewed two documents relied upon by the Crown which includes Information Note #1. He states that these did not in any way affect his opinion. He does state, however, that even though there were only two positive cases in the Ontario institutions at that time, this was almost 3.6 times higher than the prevalence of confirmed active COVID-19 cases in the general Ontario population. On this basis he concludes that: “if the risk to Ontarians is ‘high’, even though the average Ontarian can engage in social distancing and self-isolation, and given that the prevalence is lower in the Ontario population than in the correctional population, I am unable to comprehend how one could assert that COVID-19 is a ‘very small risk factor’ in the correctional population” and that the “math alone suggests that even with just 2 confirmed cases, COVID-19 is an imminent, severe, calamitous threat in the correctional population, in comparison with the Ontario population, who also face an acknowledged serious threat”. Finally, Dr Orkin concludes:

My position is rooted in my knowledge of public health and COVID-19 only, and I do not purport to weigh or balance the risks of COVID-19 on an individual or population level against the public safety issues associated with the release of individual inmates from custody. I realize fully that some inmates are violent, some are dangerous, and therefore some cannot be safely released into the community. Nevertheless, my opinion is that the collective and congregate gathering of a group of people in correctional facilities together is very dangerous right now. As a society, during these extraordinary circumstances, it is essential that we accurately assess the nature of these safety risks, so that they can be appropriately weighed against one another. [Emphasis added]

Open Letter from Medical Professionals to Canadian Federal, Provincial and Territorial Governments - Release Prisoners to Protect Public Health

[60] The Defence also filed an Open Letter dated April 6, 2020 from many medical professionals (not including Dr. Orkin) to the federal, provincial, and territorial governments, who state that they are deeply concerned about the impact of the COVID-19 pandemic on people in prisons and jails. In this letter, the authors state that people in Canada’s prisons and jails are already medically vulnerable and that the prison environment heightens the risk of transmission for both prisoners and staff. They assert that if people in prison become infected, it will be essentially impossible to stop the spread of COVID-19 within a correctional facility and opine that the window to act to prevent the spread of COVID-19 in correctional facilities is closing. These medical professionals urge that we stop admitting people to jails and prisons unless absolutely necessary and that we release as many people as possible, particularly those who have chronic health conditions and/or are age 50 or above.

The Written Reasons of Justice of the Peace Conacher

[61] Justice of the Peace Conacher gave fulsome reasons for his decision to detain Mr. Ali on the secondary and primary grounds. There are a number of findings that were made by Justice of the Peace Conacher that I agree with and I rely on in coming to my decision. They are as follows:

[44] However, the fact remains that the Court determines as both trustworthy and credible the information that when searched by police on September 10th last, Mr. Ali was in possession of the items set out in paragraphs 11 and 12, above. This occurs on a public street where he places both himself and the public at significant risk. He is carrying a loaded handgun while under four orders from the courts prohibiting him from possessing prohibited or restricted firearms. He has presumptive knowledge of the contents of the grocery bag in his hand. He would know that apprehension would carry the prospect of a lengthy period of imprisonment, especially in light of his criminal record. Yet the court orders, the risk of imprisonment and any duty he may have felt as a care-giver, parent or marital partner did not deter him from the behaviour described in the synopsis.

[45] … Mr. Ali's past conduct coupled with the current factual possession of firearms and illegal, indeed potentially deadly, drugs demonstrates clearly that neither prison sentences nor court orders have the force of deterrence for him. … I find that, left to his own devices, Mr. Ali will almost certainly engage in similar conduct, notwithstanding the current charges against him.

[46] … Given his limited ability to earn income otherwise, the money to be made from drug trafficking would most certainly have an allure.

[47] … the activity of trafficking the kinds of controlled substances found on Mr. Ali on September 10th, while arming oneself with a handgun and venturing into public space is conduct from which the public is entitled to be protected.

[54] In the limited context of a bail hearing it was not possible to determine with confidence whether Jabar Ali was exhibiting a lack of awareness of his brother's behaviour and character, or was in denial about it, or was intentionally minimizing the seriousness of it in an effort to assist his brother. Whatever the explanation, I was left with a lack of confidence that Jabar Ali would bring the rigour and diligence to his role as a surety as would be required given the nature of the individual he'd be supervising and that individual's predilection for drug trafficking and the possession of firearms.

[55] … Mr. Ali's spouse presented as remarkably detached with respect to his criminal record. … For someone who is Mr. Ali's spouse with whom she shares joint responsibility for the care of the children, it was to me a surprisingly detached attitude to take.

[56] … Mr. Ali, clearly, has acted deceptively towards his spouse. There is a significant question about Mr. Ali's willingness to comply with lawful authority. The issue that Mr. Ali would have to satisfy is that he would be willing to comply with his wife's authority as surety.

[57] In terms of Ms. Hidalgo-Diaz's understanding of and insight into her spouse’s involvement with the drug trade … I have to conclude that she was either remarkably unaware of what was going on or turned a blind eye. …

[58] … The transporting of this quantity of these drugs is indicative of possession for the purpose of trafficking. Similarly, I concur with the Crown's argument that the transporting of the mini Glock in the manner that it was [is] consistent with an intention to traffic the firearm along with the drugs.

[60] I am concerned that both Mr. Ali's brother and wife, although willing to be sureties and having had experience in that role, given their schedules, given that they can't maintain 24/7 observation of Mr. Ali, the opportunity for him to continue in his chosen occupation is substantial and likely. Having heard from both witnesses, and while acknowledging they have indicated a willingness to put themselves at significant financial risk, I am left with the concern that they will not be as scrupulous as necessary in supervising Mr. Ali and enforcing the conditions of the judicial order. Jabar Ali was either uninformed about or dismissive of the nature of his brother's criminal record. He also did not communicate to the Court that he fully appreciated the seriousness of the allegations that his brother is facing or to seriously entertain the possibility that his brother is inclined, still, even after serving lengthy custodial sentences, to be involved in the commercial trafficking of illegal drugs and firearms. Ms. Hidalgo-Diaz offered assurances that she would contact the police if she became aware that he was committing offences or failing to follow his bail. That would be tantamount to closing the barn door after the horse has escaped. Given the nature of the activity in which Mr. Ali would likely engage, assurance are required that, to a reasonable degree, that activity can be prevented in the first place, in keeping with the harm anticipated in s.515 (10)(b) that, "the accused will, if released from custody, commit a criminal offence," and, particularly, an offence the would result in serious harm to members of the public. [Emphasis added]

[62] In light of these and other findings Justice of the Peace Conacher concluded as follows with respect to the secondary ground:

[65] Given the very clear need for constant close supervision of Mr. Ali, and given the Court's assessment that Mr. Ali has not shown that his proposed plan of release would provide the level of supervision required, he has not shown why his detention in custody on the secondary grounds would not be justified. [Emphasis added]

With respect to the tertiary ground, Justice of the Peace Conacher concluded:

[71] Regarding the circumstances, Mr. Ali was in possession of two handguns, one of which was loaded and on his person. He did this while transporting quantities of drugs that are consistent with amounts typical of trafficking. The second handgun, while unloaded, had ammunition in the same grocery bag that Mr. Ali was carrying. He had relatively recently been set upon on a public street, robbed, stabbed and left for dead. His witnesses in this hearing had testified that he was fearful (understandably) that he was a target. Yet there he was on a Tuesday afternoon on one of Toronto's principal thoroughfares with a loaded handgun carrying items that would make him a target. The potential for violence, to him as well as to others, was considerable.

[78] Having considered the information that was received as credible and trustworthy regarding the allegations and regarding Mr. Ali's background; the proposed plan of release including the testimony of the prospective sureties; the submissions of counsel and the authorities tendered by the Crown, I found that Mr. Ali had not shown cause why his detention in custody on either the secondary or tertiary grounds would not be justified. Therefore, his detention in custody was ordered pursuant to ss. 515(10)(b) and pursuant to ss. 515(10)(c) of the Criminal Code.

The Law

[63] The applicable law is not in dispute. Mr. Ali is presumed innocent and he has a constitutional right to bail unless there is just cause to deny it, as guaranteed by s. 11(e) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982. The Supreme Court of Canada has held that detention pending trial should not ever become the norm: see R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, and R. v. Myers, 2019 SCC 18, 438 D.L.R. (4th) 60. As Wagner J. (as he then was) stated in St. Cloud, 2015 SCC 27, at para. 70, with respect to a person charged with a crime, even very serious crimes, it is important “not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception”. The exception being where his detention is justified on one of the grounds set out in s. 515(10) of the Criminal Code; St. Cloud, 2015 SCC 27, at para. 113. Mr. Ali is entitled to be released on the least restrictive form of bail and conditions that address the concerns of s. 515 of the Criminal Code.

The Secondary Ground

[64] Section 515(10)(b) of the Criminal Code sets out the secondary ground. It provides that detention is necessary when it is for the purpose of the protection or safety of the public, having regard for all of the circumstances, including any substantial likelihood that the accused person will reoffend if released from custody.

[65] In R. v. Morales, [1992] 3 S.C.R. 711, at para. 39, Lamer C.J.C (as he then was) observed:

39. …. 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 likelihood” 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.

The Tertiary Ground

[66] Section 515(10) of the Criminal Code outlines the only statutory grounds for pre-trial detention of an accused person. With respect to the tertiary ground, subsection (c) states as follows:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

(1) The apparent strength of the prosecution's case; (2) The gravity of the offence; (3) The circumstances surrounding the commission of the offence, including whether a firearm was used; and (4) 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.

[67] In St. Cloud, 2015 SCC 27, Wagner J. set out the principles which must guide this court in the application of the four circumstances listed in s. 515(10)(c) of the Criminal Code, which includes the principle that a court must not order detention automatically even where the four listed circumstances support such a result. At para. 69, he made it clear that the four listed factors are simply the main factors to be balanced together with any other relevant factors, in determining whether detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in this country. As a result, counsel agree that the COVID-19 pandemic and its impact on Mr. Ali, if any, is a circumstance that is relevant to the tertiary ground.

[68] There is not one way to undermine public confidence in the administration of justice. It may be undermined if a justice declines to order the interim detention of a defendant in circumstances that justify detention, but also if a justice orders detention where such a result is not justified: St. Cloud, 2015 SCC 27, at para. 86.

[69] At para. 87, Wagner J. summarized that the perspective of the public is the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstance of the case, although this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the defendant.

[70] Finally, at para. 88, Wagner J. stated that:

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. [Emphasis added]

[71] Although the tertiary ground provides a distinct basis for pre-trial detention from the secondary ground, and I must be careful not to conflate the two, the strength of the plan of release is a relevant factor on the tertiary ground. As Trotter J. (as he then was) noted in R. v. Dang, 2015 ONSC 4254, 122 W.C.B. (2d) 479, at para. 58, a defendant’s plan of release may be relevant to whether public confidence in the administration of justice is capable of being maintained. As Trotter J. observed, a “reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused”.

The COVID-19 Bail Review Cases

[72] There have been a considerable number of cases from this court that have considered the impact of the COVID-19 pandemic on a bail or bail review application. There has been an evolution in the caselaw largely because there is now more evidence available as to the risk of COVID-19 in jails and prisons. I refer, in particular, to the opinion of Dr. Orkin that was made available to me. Although certainly not a universal view, many judges are now placing an increased focus on the strength of the release plan in terms of protection of the public and the impact of COVID-19 on the tertiary ground even when there is no evidence that a particular defendant is at a higher risk if he or she contracts COVID-19.

[73] The cases that counsel referred and that I considered are as follows:

R. v. Budlakoti, 2020 ONSC No. 1352 (Laliberte J.)

• This was the earliest bail review decision referred to by counsel.
• The defendant was charged with numerous firearms counts.
• The only change was the COVID-19 pandemic.
• The Defendant suffered from gastroesophageal reflux disease and celiac disease, but no medical evidence was provided that he was at more risk from COVID-19.
• As a result, Laliberte J. was unwilling to find that the defendant would be differently affected by COVID-19 due to physical or mental health issues and noted that the steps the Ministry had said they are taking to limit the effects of COVID-19 in jails lowers the risk to inmates.
• The defendant was detained on secondary and tertiary grounds.

R. v. J.S., 2020 ONSC 1710 (Copeland J.)

• Neither counsel referred specifically to this decision, but it is often cited in the later bail review cases that they referred to me.
• 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.
• In light of considering the coronavirus risks, along with the defendant's newly proposed sureties, vacating the detention order and ordering release in the form of restrictive house arrest was appropriate.
• At para. 19, Copeland J. stated:

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.

R. v. Nelson, 2020 ONSC 1728 (Edwards J.)

• The defendant was charged with several offences related to a robbery and several offences that related to the trafficking of a loaded firearm.
• Although COVID-19 represents a material changes of circumstance, in this case, the application was dismissed due to the seriousness of the charges, the defendant’s prior criminal record, the weakness of the plan of release, and the absence of evidence demonstrating that the defendant may be more susceptible to contracting the virus or is at heightened risk of symptomology.

R. v. T.L., 2020 ONSC 1885 (Molloy J.)

• The defendant was alleged to have passed a firearm to a shooter who immediately shot his cousin.
• Molloy J. followed J.S. and found that the risk posed to inmates from COVID-19 is a factor to consider under the tertiary ground.
• The defendant had a criminal record for unauthorized possession of a firearm which was troubling and a number of convictions from Youth Court.
• The criminal record, even though related, does not automatically mean that the accused must be detained to protect the public. Where there is a strong enough plan for supervision during bail, the threat to the safety of the public can be greatly reduced, or even eliminated. The plan for two sureties, house arrest with 24/7 supervision and GPS monitoring was considered to be adequate safeguards to satisfy the concerns on the secondary grounds. At para. 21: “This is as tight a plan of supervision as can reasonably be expected in any situation. It would be a rare situation in which an accused would not be releasable on conditions such as these.”
• Despite a strong Crown case, a very serious offence of attempted murder that Mr. L was charged with aiding, a violent and brazen shooting, the prospect of a significant penitentiary sentence all supporting detention, given COVID-19 it is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. According the defendant satisfied the onus on tertiary ground.

R. v. Jeyakanthan, 2020 ONSC 1984 (McWatt J.)

• The offences involved a loaded firearm and illegal drugs.
• Accepted, as Crown conceded, that COVID-19 is a material change to be considered.
• However, McWatt J. rejected the conclusion in J.S. at para. 18 that “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."
• Finds that J.S. and cases that follow that line of reasoning are based on speculation and not evidence.
• Adopts findings in Nelson, that rudimentary medical evidence should be submitted by an applicant to show that he/she has underlying health issues that make them more susceptible to contracting the virus.
• Defendant detained on the secondary and tertiary grounds based on the following findings: (a) no evidence that COVID-19 is at TSDC; (b) no evidence that the defendant is more susceptible to the virus than other inmates; (c) electronic monitoring is only a strength in the plan if the sureties are able to successfully supervise; and (d) the sureties will not be able to successfully supervise.

R. v. Samuel-Barriteau, 2020 ONSC 2108 (C.M. Smith J.)

• Charged with a number of offences related to possession of a loaded firearm and possession for the purpose of trafficking in fentanyl.
• Secondary grounds satisfied because proposed release plan contained 24/7 non-stop supervision backed up by electronic monitoring.
• Defence conceded Crown’s case strong but with triable issues.
• Followed T.L. and held as Molloy J observed the tertiary ground involves more than a “tick off the box” exercise. It is necessary to consider all the factors and circumstances including, in this particular case, the strength of the release plan and further, the remaining material change of circumstances, being the COVID-19 pandemic.

R v. Ibrahim, 2020 ONSC 2241 (Bird J.)

• The defendant was charged with first degree murder as a party, and possession of cannabis for the purpose of distribution. He had no criminal record.
• At present, there are very few confirmed cases of COVID-19 in the inmate population in Ontario. However, there is no doubt that confined, densely populated living spaces, such as jails, are at risk for the virus spreading rapidly if it is introduced into the population.
• The defendant had had asthma since he was a child. The court accepted that people with underlying health conditions including asthma are more likely to experience serious symptoms of COVID-19 if they contract the virus.
• COVID-19 is a factor to be considered but is not determinative of a bail application. If it were dispositive, no one would be detained in custody pending trial until the pandemic is over.
• The concerns under the secondary and tertiary grounds were not attenuated by the plan of release since Baird J. found that the defendant was unwilling to comply with the conditions of release, had no respect for the sureties, and they would not be able to properly supervise him. Accordingly, Mr. Ibrahim was detained.

[74] Justice Bird in Ibrahim also referred to two very recent decisions from the Court of Appeal for Ontario that have considered the impact of COVID-19. In R. v. Morgan, unreported, March 31, 2020, Trotter J.A. dismissed an application for bail pending appeal notwithstanding the concerns created by the COVID-19 pandemic. He found that the appellant posed a risk to public safety that was not attenuated by his proposed plan of release. In R. v. Kazman, 2020 ONCA 251, in granting the applicant bail pending his application for leave to appeal to the Supreme Court of Canada, Harvison Young J.A. found that taking into account the applicant’s health issues in the context of COVID-19 and the limited period for which bail was sought, his detention is not necessary in the public interest. This was a case where the applicant had been convicted of a substantial fraud on the taxpayer. Harvison Young J.A. went on to say that this does not mean that bail will be granted in every case where COVID-19 is raised as an issue.

Analysis

Is detention required on the secondary ground?

[75] I have set out the findings of Justice of the Peace Conacher with which I agree. In my view, given Mr. Ali’s criminal record, he clearly has been active as a drug dealer in the past. If I consider the strength of the Crown’s case with respect to the current charges, absent a successful Charter application, clearly the amount of crack cocaine, powdered cocaine and fentanyl in Mr. Ali’s possession was for the purpose of trafficking, not personal consumption. The quantity of cash and the denomination of the bills in his possession are consistent with that as is the evidence of his wife that he is not a drug user. Furthermore, I can think of no other reason why Mr. Ali would have such a large quantity of ammunition in his possession along with an unloaded firearm and empty magazine, other than for the purpose of selling those items. In my view, for the purpose of this bail application only, it is reasonable to conclude that Mr. Ali was once again involved in the drug trade and possibly even worse – trafficking firearms. I find that notwithstanding time in prison and in jail, a number of weapons’ prohibition and other orders in terms of recognizance and probation, and notwithstanding the positive influence of Ms. Hildalgo-Diaz, that absent adequate supervision there is a “substantial likelihood” of Mr. Ali continuing with his unlawful behaviour and committing further offences, or as Justice of the Peace Conacher found: “left to his own devices, Mr. Ali will almost certainly engage in similar conduct, notwithstanding the current charges against him”.

[76] However, that still leaves the question of whether or not Mr. Ali’s detention is “necessary” for public safety. As a result, my decision on whether or not Mr. Ali has satisfied his onus on the secondary ground depends on whether or not his proposed plan of supervision can adequately ensure that he is not in a position to continue to carry on in the trafficking of drugs and/or firearms so that there is no substantial likelihood that his detention is necessary for the protection or safety of the public.

[77] Mr. DiMuzio submitted that, in light of Mr. Ali’s criminal record, there is a significant question of whether he can be properly supervised, and GPS monitoring cannot address these concerns. I have considered the fact that Mr. Ali does not appear to be amenable to supervision. He clearly showed no respect in the past for his mother when she was his surety and his record is replete with breaches of recognizance and breach of weapons’ prohibition orders. Although there is no evidence that he had breached bail conditions while being supervised by either Ms. Hildalgo-Diaz or Mr. Jabar Ali, I have concerns that what should be the “pull” of bail upon Mr. Ali, the desire to avoid costing a surety the money they have pledged, may not be enough to deter him from further unlawful conduct.

[78] Mr. Rosemond argues that Mr. Ali is a family man and a good father and that he and his wife reasonably want him to do some parenting of their children. He also submitted that both sureties are strong, particularly Ms. Hildalgo-Diaz. I do not agree. Having read the transcript of the evidence of Ms. Hildalgo-Diaz and Mr. Jabar Ali before Justice of the Peace Conacher, I share his concerns about their evidence. The question I must consider is whether or not those concerns might lead either surety to be reluctant to perform their responsibility and notify the authorities if Mr. Ali is not complying with the conditions of his bail.

[79] With respect to Ms. Hildalgo-Diaz, in my view, she was not being totally honest, particularly in her answers in cross-examination, about how much she knew about Mr. Ali dealing drugs. Although Mr. Jabar Ali appeared to be generally truthful, he clearly does not know his brother as well as his affidavit suggested. That said, I am of the view that both Ms. Hildalgo-Diaz and Mr. Jabar Ali appreciate that the police could and would readily discover if at any time they leave Mr. Ali unsupervised. I also believe that Ms. Hildalgo-Diaz would not want to risk losing $25,000 or engage in any conduct that would jeopardize her current employment or her desire to become a correctional officer. I also accept that Ms. Hildalgo-Diaz is sincere in her desire to get Mr. Ali back on a positive path and to that extent she must realize that tolerating any breach puts both his future and hers at risk. Similarly, although Mr. Jabar Ali is not pledging a significant amount, I accept his evidence that it is a significant sum to him and that he would not want to lose that money. Mr. DiMuzio submitted that there appear to be gaps in the supervision plan given the admission by Mr. Jabar Ali that there might be times when he would be required to go to his job. To avoid putting the money he is pledging at risk, I am satisfied that Mr. Jabar Ali will ensure that he coordinates any such issues with Ms. Hildalgo-Diaz.

[80] The fundamental concern that Justice of the Peace Conacher had was not so much with the sureties themselves but that there was a “very clear need for constant close supervision of Mr. Ali” and the plan of supervision proposed before him did not provide for that. The plan before me does along with the added protection of GPS monitoring.

[81] I appreciate that Mr. Ali wearing a GPS bracelet would not prevent him from committing a criminal offence if that is what he chose to do, although even with Mr. Ali there may be some psychological deterrent as suggested by Molloy J. in T.L., at para. 22. However, if I order that Mr. Ali be in the constant presence of one of his sureties, he would have to commit an offence in their presence. For the reasons already stated, I accept that they would not permit that.

[82] For these reasons I conclude that Mr. Ali has met his onus justifying that his detention is not necessary on the secondary ground.

Is detention required on the tertiary ground?

[83] With respect to the tertiary ground, I am required to balance all four factors listed in s. 515(10)(c) of the Criminal Code, which are not exhaustive, and all other relevant factors to determine the ultimate question: is the detention of Mr. Ali necessary to maintain confidence in the administration of justice, having regard to all the circumstances? It is agreed that another relevant factor is the COVID-19 pandemic.

[84] Turning to the strength of Crown’s case, there is no doubt in my view, that the Crown has a very strong case subject to a Charter argument that not only results in a finding that Mr. Ali’s Charter rights were breached, but also that this very real evidence of illegal drugs, firearms, and ammunition ought to be excluded from the trial. For that to happen, in my view, any Charter breach would have to be very serious. For the purpose of the issues before me, the Crown’s case is exceptionally strong.

[85] Very little needs to be said about the seriousness of the charges. The cases are replete with the dangers of illegal drugs and firearms, particularly when they are both in the possession of a defendant, as they were in this case. Not only was the firearm in Mr. Ali’s waistband loaded, he had fentanyl which is well known to be a potentially lethal drug that has caused the deaths of many in the city of Toronto and elsewhere in his possession for the purpose of trafficking. Mr. Rosemond submitted that this case is not as serious as one where a firearm is actually used to shoot someone and that of course is true. However, there could be no doubt that Mr. Ali had a loaded firearm at his waist so that he could use it should the need arise. Finally, should Mr. Ali be convicted, he will face a very lengthy penitentiary sentence, particularly given his criminal record, which includes prior convictions for trafficking and possession of a firearm.

[86] For these reasons, save for the fact that the loaded firearm was not actually “used” at the time by Mr. Ali, all of the other factors set out in s. 515(10)(c) of the Criminal Code strongly suggest the detention of Mr. Ali on the tertiary ground.

[87] My finding that Mr. Ali can be adequately supervised if released on the plan that is proposed, is a relevant factor on the tertiary ground: Dang, 2015 ONSC 4254, at para. 58. As I explain below, this finding is even more relevant given the COVID-19 pandemic.

[88] That brings me to a consideration of how the COVID-19 pandemic affects the tertiary ground in this case, if at all. The length of time that Mr. Ali will be incarcerated if he is detained pending his trial is also a factor when considering the tertiary ground. Mr. Rosemond submitted that, in light of the closure of the courts at this time due to the COVID-19 pandemic, it is unlikely that this case with be tried within the 30 month timeline set out in Jordan and that it could easily take 40 months or even longer to get this case to trial. I agree. Mr. Ali’s preliminary inquiry scheduled for April 24, 2020 is not proceeding and it is unclear when it may go ahead or when the courts can get back to normal.

[89] Mr. DiMuzio submitted that there is no medical evidence in this case save for the note of Dr. Mazurek, which was made almost two years ago. It is his position that because of the date and nature of that information there is no evidence of a current diagnosis nor any evidence of ongoing health issues. He submitted that I would be in error to admit this information without any medical evidence. In addition, Mr. DiMuzio submits that Mr. Ali’s wife’s affidavit that he uses a puffer regularly is not medical evidence. In short, it is his position that there is no evidence that Mr. Ali is at a higher risk of contracting COVID, or, that if he does contract COVID-19, that he is at risk of more serious symptoms. It is Mr. Rosemond’s position, however, that the further detention of Mr. Ali would be akin to a death sentence given his pre-existing condition. He argues that Mr. Ali faces an uncontrollable and heightened risk during detention before his matters can be tried. He is unable to comply with the provincial directive of distancing due to his confinement to a cell with others throughout inexorable lockdowns. Mr. Rosemond submitted that further detention of Mr. Ali would bring the administration of justice into disrepute.

[90] To my surprise there is no evidence from Mr. Ali as to any respiratory problems he may have. All I know about his current condition is that he is using a puffer while detained. However, I am concerned that I should not ignore the note of Dr. Mazurek, as Mr. DiMuzio suggests. It is certainly some evidence that at least two years ago Mr. Ali suffered from some sort of a respiratory ailment and the note does not suggest it was a temporary problem. I agree with Mr. DiMuzio that there is no current medical diagnosis and that I could very easily decide that Mr. Ali has not met his onus to establish he in particular is at risk. However, in light of the limited evidence I do have and the evidence I have from Dr. Orkin about the nature of COVID-19, as well as the public knowledge that it can impact a person’s respiratory system, I have concluded that I should be cautious and presume that Mr. Ali may be at a heightened risk because of his health or at the very least because of the increased risk of infection in detention.

[91] Mr. DiMuzio submitted that it would actually be contrary to the current protocol for Mr. Ali to be released to his home. He did not expand on this argument, but I presume he is referring to the fact that Mr. Ali could have COVID-19 and yet be asymptomatic. In my view, that can be addressed by requiring Mr. Ali to self-isolate as I discussed with Ms. Hildalgo-Diaz. I have considered the fact that if Mr. Ali is released after a period of isolation, he will be part of a very full and busy home. There will be as many as eight people in the home at any one time and apart from the children who may leave the home from time to time, there is the fact that both Ms. Hildalgo-Diaz and Mr. Jabar Ali are working outside their homes. Ms. Hildalgo-Diaz advised me that they had not considered what they would do if either of them became ill with COVID-19.

[92] Even apart from the question of whether or not Mr. Ali is particularly at risk, I have the uncontradicted evidence of Dr. Orkin, buttressed by the Open Letter from many health care practitioners, that if it can be done safely, for the protection of the public it is wise to release from custody even healthy inmates. To this Mr. DiMuzio submitted that the fact there are so few inmates diagnosed with COVID-19 in the institutions suggests that they are doing a good job in minimizing the risk of infection particularly, for example, when compared to retirement homes. That is true and I would not and do not fault the actions taken by the Ministry of the Attorney General, Ministry of Health and Public Health. Their numbers speak for themselves – they are doing a very good job in a difficult situation.

[93] Mr. Rosemond submitted that the COVID-19 situation at the TSDC is only going to get worse even if it is not a significant problem now. That is the prediction of Dr. Orkin. When I opened my office email on April 21st, I learned that an outbreak of COVID-19 was declared by Peel Public Health at the Ontario Correctional Institute (“OCI”).

[94] Information that I received about this outbreak that was made available to other judges on the criminal team was that in order to stop further spread at OCI, the ministry temporarily closed the facility after transferring all inmates to the TSDC. All inmates who have been transferred from OCI have been placed in medical isolation in a separate part of TSDC and will not be placed with existing TSDC inmates to reduce any potential spread of COVID-19. Appropriate protocols are being followed to ensure protection of staff and inmates have been put in place. Transferring inmates to TSDC is said to allow the ministry to accommodate those who need to be isolated. TSDC is our newest facility and has a modern health care unit with appropriate resources and the information is that TSDC will ensure they effectively manage and support any inmates that might be suffering from the effects of COVID-19. Finally, because the TSDC has been able to reduce its inmate population, there is now space within TSDC that can now be used for medical isolation.

[95] I considered whether or not to share this information with counsel before making my decision but as it reinforced my decision to release Mr. Ali, I decided it was not necessary to do so.

[96] It seems then that what Dr. Orkin was concerned about is beginning to appear. This makes sense because notwithstanding all of the efforts being made to contain the risk of infection, there is no doubt that COVID-19 is easily transmitted from one person to another. Even if Mr. Ali is not at a higher risk should he be infected, as I have already said I cannot be certain that that is the case in light of the evidence before me. Furthermore, in my view, in these extraordinary times, although the presence of COVID-19 is not a free pass to “get out of jail”, if the secondary ground is satisfied and a release plan is viable and ensures that a defendant can be adequately supervised to protect the public from further risk, as is the case before me, then release on stringent terms ought to be ordered, notwithstanding the strength of the usual four factors justifying detention on the tertiary ground.

[97] In this regard I agree with the views of Molloy J. who stated in T.L., at para. 36:

…[I]t is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).

[98] In short, in these extraordinary times, it would bring the administration of justice into disrepute if someone who has met his onus on the secondary ground is not released notwithstanding strong tertiary ground concerns on the four statutory factors. In my view, any concerns that a reasonable person might have about the impact an order releasing Mr. Ali might have on the administration of justice in circumstances such as these are minimized in the face of the COVID-19 crisis as it pertains to our jails and the release plan proposed by Mr. Ali.

[99] For these reasons, I find that Mr. Ali has discharged his onus on the tertiary ground and that it is not necessary to detain him to maintain confidence in the administration of justice. If Mr. Ali is released on strict terms of house arrest with two sureties, GPS monitoring, and the additional conditions I consider necessary, I find that judicial interim release will not undermine the confidence of a reasonably informed member of the public in the administration of justice.

Disposition

[100] For these reasons, I grant the application and vacate the detention order issued by Justice of the Peace Conacher and issue an order granting the Applicant, Saheed Bacchus Ali, judicial interim release upon his entering into a recognizance with the following two sureties: Meisha Hildalgo-Diaz in the amount of $25,000 and Jabar Ali in the amount of $10,000, without deposit of money or other valuable security, pending his trial and on the following conditions:

(a) Keep the peace and be of good behaviour; (b) Remain in the Province of Ontario; (c) Reside with Meisha Hildalgo-Diaz at 107 Humber Boulevard, Unit 5, Toronto, Ontario, M6N 2H4 (the “Residence”) and be amenable to the routine and discipline of the household; (d) Upon your arrival at the Residence, self-isolate for 14 days in the basement; (e) Remain in the Residence at all times EXCEPT in the immediate and direct presence of Meisha Hildalgo-Diaz or Jabar Ali or your lawyer and then only on prior notice given to the electronic monitoring company set out below, Recovery Science Corporation. You must obey a curfew and be in the Residence from the hours of 11:00 p.m. to 5:00 a.m. each day. The only exception to this condition (e) is a medical emergency involving you, one your sureties or one of the six children residing in the Residence; (f) Advise the Officer-in-Charge, DC Cody Josephs, Badge # 90497 of 14 Division at 416-808-1400 if anyone in the Residence or Mr. Jabar Ali contracts COVID-19; (g) Do not answer any exterior door or any land line telephone at the Residence; (h) Do not possess or use any cell phone except in the presence of and with the permission of one of your sureties; (i) Do not possess or use any cellphone, computer or any device capable of accessing the internet except in the direct supervision of one of your sureties; (j) Do not have any visitors with the exception of members of your family; (k) Do not receive any mail unless it is first opened and read by one of your sureties; (l) Do not receive any parcels unless the parcel is first opened and examined by one of your sureties; (m) Attend all court proceedings as and when required in the company of one of your sureties; (n) Report to the Toronto Police Service Bail and Enforcement Unit either via email at bail@torontopolice.on.ca or by phone calling 416-808-5700, between 8:00 a.m. and 4:00 p.m., once per month on any day of the week, Monday to Friday, save for statutory holidays; (o) At your expense, be subject to GPS monitoring by wearing a GPS ankle bracelet at all times and submit to a 24-hour electronic monitoring by Recovery Science Corporation (“RSC”) and bear the cost of electronic monitoring; (p) 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 sent directly to the Officer-in-Charge DC Cody Josephs, Badge # 90497 or his or her designate; (q) Install the GPS ankle bracelet immediately upon release; (r) Comply with the RSC leave notification and battery charging requirements and cooperate fully with all RSC requirements and RSC staff directions; (s) Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; (t) Do not possess or consume any of the substances listed in the schedules to the Controlled Drugs and Substances Act, and abstain from all other non-medically prescribed drugs or narcotics; (u) Surrender all travel documents including passports to the Officer in Charge DC Cody Josephs, Badge # 90497 and do not apply for any new travel documents; (v) Do not possess a firearm, ammunition or knife, or other weapons as defined by the Criminal Code; (w) Have a copy of the conditions of your release on your person at all times, while outside of the Residence, and produce them to any police officer if requested; and (x) Present yourself at the front door of the Residence within five minutes of law enforcement attending to ensure that you are in compliance with the terms of your bail.

“Spies J.” Spies J. Released: April 24, 2020