Court File and Parties
COURT FILE NO.: CR/20-90 BR DATE: 2020-04-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent E. Quinn, for the Crown Attorney
- and -
DANIEL DAWSON. Applicant H Saini, for the Applicant
Heard: April 20, 2020
REASONS FOR RULING ON APPLICATION FOR DETENTION REVIEW AND JUDICIAL INTERIM RELEASE - SECTION 520 OF THE CRIMINAL CODE
This proceeding was brought and determined during the COVID-19 pandemic, after the Chief Justice of the Ontario Superior Court of Justice suspended regular court operations.
A.J. GOODMAN J.
[1] This is an application pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of the applicant’s detention order.
[2] The applicant, Daniel Dawson, (“Dawson”) is charged with assault causing bodily harm, assault with a weapon and two counts of breach of probation, contrary to their respective provision in the Criminal Code. The alleged offences arise from events that occurred on October 8, 2019.
[3] The applicant was detained on the secondary ground following a bail hearing on January 20, 2020 before Justice of the Peace Stevely of the Ontario Court of Justice in Hamilton.
[4] Due to the COVID-19 pandemic and the temporary closure of the Superior Court of Justice for all but urgent matters, the parties agreed that this s. 520 bail review could be heard in the applicant’s absence.
[5] The hearing proceeded by recorded videoconference wherein the parties filed unsworn affidavits, other written materials, presented evidence and made oral submissions. Viva voce evidence was presented and the Crown had the opportunity to cross-examine the proposed surety. The applicant also provided his own unsworn affidavit dated April, 2020 and the Crown did not seek to cross-examine him. Numerous cases and other written materials were filed electronically and referred to during the course of submissions.
[6] Today, the return date for my ruling, counsel appeared before me via videoconferencing. I provided both oral and written versions to the parties.
Positions of the parties:
[7] Originally, the applicant argues that there was an error in law in respect of the decision rendered by the Justice of the Peace. The applicant also frames this application as warranting a review of his detention order based on a material change of circumstances.
[8] On the basis of the evidence presented, the applicant argues that this court is in a position to review the decision under the relevant, evolving authorities and principles to fashion a form of release to meet the secondary ground concerns. In support, the applicant submits that there are two grounds to sustain a material change of circumstances; they are: a) the COVID-19 pandemic and, b) the new release plan.
[9] Mr. Saini, for the applicant, says that consideration ought to be given to Copeland J.’s ruling in R. v. J.S., 2020 ONSC 1710, amongst other cases, as they pertain to a material change in circumstances arising from the ubiquitous pandemic situation in Ontario and its potential impact on inmates in custodial institutions. This is unlike normal times and with this in mind, the applicant is proposing the same plan than the one advanced at the bail hearing.
[10] In response, the Crown concedes that given my recent decision in R. v. T.K., 2020 ONSC 1935, there is a material change in circumstances and that this Court can consider this bail review de novo. However, the Crown asserts that none of the factors elicited by the applicant constitute a material change in circumstances to address the secondary ground concerns. Ultimately, when one looks at the reasons why Dawson was detained, there is no basis to conclude the COVID-19 crisis would tip the scale in favour of release as the original concerns of the justice of the peace remain valid.
[11] The Crown says that generally, medical evidence should be required to demonstrate that the applicant is at increased risk of contracting COVID-19 as compared to other detained inmates. There is no such evidence in this case. Instead, there is evidence that the Ministry has implemented strategies to limit the effects of COVID-19 in detention centers. There is also evidence that no inmates have tested positive at the Hamilton Wentworth Detention Center, the facility where the applicant is currently being held in custody. While COVID-19 risks can constitute a relevant consideration, it does not override the Court’s responsibility to protect the public.
Summary of the Evidence:
[12] A summary of the evidence and allegations before Justice of the Peace Stevely at pp. 3 – 8, was provided to this court. Having reviewed this information in the context of the issues in this bail review, along with counsels’ materials, I need only briefly recite them here.
[13] The Crown has a very strong case as Dawson’s alleged assault on the complainant is captured on CCTV. Dawson and a patron got in a verbal argument while both were seated at the bar. Dawson began to punch the complainant in the head and face three times. He then proceeded to pick up his bar stool and threw it directly on the complainant’s head as he was laying on the ground unconscious. Dawson then began to kick the complainant in the head and face four times. He retrieved his beer from the bar and emptied its contents on the complainant’s face. Dawson then collected his personal belongings and as he walked past the complainant, who was still laying unconscious on the floor, he kicked him one more time in the face.
Legal Principles:
[14] Briefly, the approach to a review under s. 520 or 521 of the Criminal Code has been altered since the release of the Supreme Court of Canada’s seminal decision in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.
[15] At para. 120 of St-Cloud, the Supreme Court stated that a judge can review a Justice's decision with respect to the detention or the interim release of an accused, where new evidence is submitted by the accused or the prosecutor if that evidence shows a material and relevant change in the circumstances of the case.
[16] In St-Cloud, at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code, the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) "the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another"; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case.
[17] In St-Cloud, the court held that in order for new evidence to be admissible at the bail hearing, four criteria must be met. The criteria are from the court’s prior decision concerning the admissibility of new evidence on appeal in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759. The Palmer criteria were modified to suit the bail review context. When such new evidence meets the four criteria for admissibility, the reviewing judge can repeat the analysis for whether detention is justified as if he/she were the initial decision maker. The four Palmer criteria and the modifications in the bail context are as follows:
- The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial.
[18] In the context of a bail review, the reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for a reason that is legitimate and reasonable (para. 132).
- The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
[19] In the context of a bail review, it is sufficient that the evidence is relevant for the purposes of the bail review (para. 135).
- The evidence must be credible in the sense that it is reasonably capable of belief.
[20] This criterion must be interpreted in light of the relaxation of the rules of evidence at the bail stage (para. 136).
- It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[21] This last, albeit important factor, stipulates that the fresh evidence on review must be “significant” in the sense that it must be reasonable that it could have impacted the balancing exercise undertaken by the justice (para. 137).
[22] The application of these principles has to be flexible given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused as the release hearing takes place at the very start of the criminal proceedings: see para. 129 of St-Cloud. The Supreme Court rejected the Crown's submission for a narrow approach to new evidence. At para. 131, Wagner J. wrote that "[a] generous and liberal interpretation of the meaning of "new evidence" in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this court".
[23] In addressing the secondary ground, detention is justified where it is necessary for the protection or safety of the public having regard to all of the circumstances. It has been settled that in dealing with the secondary ground, the danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. Appellate courts have held that, in general, society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime. The denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any extraneous purpose.
[24] Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial risk” of committing an offence or interfering with the administration of justice, and only where this substantial likelihood endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. It is also well established that jurists must consider the approach directed by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509.
[25] If there is a substantial likelihood that the accused will not comply or cooperate with the terms of the bail, he or she is likely to be denied bail on the principles and objectives of the bail provisions of the Code.
Analysis:
Material Change in Circumstances – Application of the Legal Principles:
[26] The “material change of circumstances” threshold to invoke this de novo hearing, is referenced in St-Cloud at para.138:
If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified. The Palmer criteria, modified as I have just done, must not be applied in a manner that delays or needlessly complicates the release process. As I explained above, that process, by its very nature, generally requires an expeditious and flexible procedure. The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.
[27] The applicant argues that the material change of circumstances provided to the court is determinative of the threshold issue to invoke a hearing de novo. Further, the grounds for review with the new plan not only meets the threshold of material change, but goes further to tip the balance for release under s. 515(10) of the Code.
[28] Without comingling the material tests under St-Cloud, the applicant’s assertions are relevant to the balancing exercise and an assessment of whether the court would permit a plan of release.
COVID-19 Pandemic:
[29] Mr. Saini submits that in the current pandemic, the preponderance of recent jurisprudence from the Superior Court opens wide the threshold consideration of a material change in circumstances and allows for a hearing de novo.
[30] In T.K., the Crown conceded a material change in circumstances due to the pandemic. Nonetheless, implicit in my reasons for judgment was support for such a conclusion.
[31] Respectfully, I disagree with the views held by certain colleagues of this court to the effect that COVID-19 does not itself constitute a material change in circumstances. Or if it does, it is not open to use the existence of that change alone to conduct a review absent a conclusion by the reviewing judge that the decision of the justice of the peace was clearly inappropriate, or otherwise failed to meet the other tests set out in para. 121 of St.-Cloud.
[32] As I have already made the finding in support of a material change of circumstances linked to the recent pandemic, my conclusion in T.K. and in a more recent case, R. v. J.A. 2020 ONSC 2312, with references to the prevailing jurisprudence is dispositive of this threshold issue.
[33] Hence, the applicant has successfully satisfied the criteria as outlined in St. Cloud and its progeny. Thus, I am satisfied that the “door is opened” for a review by virtue of the aforementioned material change in circumstances, namely, the COVID-19 pandemic. Given this finding, I need not address any alleged errors in law or the other grounds advanced by the applicant.
[34] Suffice it to state, that while I am entitled to conduct a hearing de novo at this stage, it doesn’t mean that the aforementioned consideration of the global pandemic allows for a de facto release. Those factors must also be balanced with the plan being proposed, along with the jurisprudence related to the secondary grounds for detention.
[35] I now turn to the proposed plan.
The Plan for Release:
[36] There is one surety being proposed. Janette Parks (“Parks”) is the applicant’s grandmother. The surety’s affidavit and testimony revealed that she lives in an apartment in Hamilton. The plan is to have Dawson live in the second bedroom. Parks deposed and testified that she is willing to pledge $1,000 and that she is confident in her role as a surety and that she believes that Dawson will not breach any of the Court’s rules.
[37] On cross-examination, Parks testified that while she had intended to revoke her surety on a prior occasion due to Dawson not following the bail terms, yet, she did not do so until a later time. She also provided rationale as to why Dawson would abide by the terms of release on this occasion.
Analysis: Secondary Ground:
[38] In order to address the issue, the test can be restated as follows:
Does COVID 19 materially change the reasonableness of the continued detention of the applicant on the secondary grounds? [^1]
[39] The applicant submits that with the real potential for the pandemic to infect those held in custodial facilities with the plan of release, any concerns on the secondary grounds are now met. The recent jurisprudence provides that many reviewing courts have taken judicial notice and accept the general notion that inmates face an elevated risk of contracting the virus as a result of their inability to self isolate.
[40] The Crown acknowledges there may be circumstances where COVID-19 can affect the analysis under the secondary ground. However, this is not one such case. There is no evidence that Dawson has pre-existing medical conditions that place him at a higher risk to contract COVID-19 or which suggest he will suffer more serious effects if contracted. The evidence provided by the Crown demonstrates that the institution is taking all necessary precautions in dealing with the pandemic.
[41] The Crown submits that the strength of the Crown’s case and the concerns over the surety’s ability to supervise and control Dawson has not changed; nor have the concerns over the applicant’s ability to abide by conditions. The applicant has demonstrated breaches of conditions in the past. The release plan is the exact same as the one proffered at the original bail hearing.
[42] While recognizing that we are well beyond the threshold issue of a material change of circumstances to invoke this hearing de novo, I harken to the comments from Hill J. in R. v. Ferguson, 2002 O.J. No. 1969 (S.C.) at para.17:
…Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.
[43] In R. v. Samuels, 2015 ONSC 5798, [2015] O.J. No. 4833, the accused argued that there was new evidence that showed a material and relevant change in circumstances. The court agreed with the Crown that the Palmer criteria had not been met. The court further held that the change in sureties did not address the justice’s underlying concerns at the initial bail hearing. At the initial bail hearing, the justice found that the problem was not with the sureties, but with the accused, as he could not be trusted to obey court orders despite the honest and trustworthy sureties. Proposing additional sureties, therefore, did not address the main concern. The accused’s detention order was upheld. [^2]
[44] The question remains whether the plan addresses the secondary ground concerns, whether the applicant will abide by the rules and whether that is enough to meet his onus for release.
[45] In addressing the Crown’s secondary ground concerns and COVID-19, I refer back to the case of J.S. In J.S., Copeland J. was tasked to consider a bail review premised on the tertiary ground after the pandemic emergency in Ontario was declared. At para. 18, she states:
In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.
[46] Moreover, Copeland J.’s comments at para. 19 of J.S. regarding the impact of COVID-19 as it applies to the detention centres are instructive:
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.
[47] As I held in T.K. at para. 60, the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials (that are currently suspended) is not only a consideration on the tertiary ground but also a valid factor when considering the secondary ground for detention; in particular for non-violent offenders on a bail review.
[48] As mentioned, Ms. Quinn acknowledges that there may be situations where COVID-19 presents a material change in circumstances in relation to the secondary ground. However, this consideration cannot apply in every case.
[49] In support of its position, the Crown provided information from Public Health Ontario, with the collection of data regarding infection and death rates of COVID-19 in the Ontario population. A recent published document, which is entitled: Epidemiological Summary COVID-19 in Ontario: January 15, 2020 to April 13, 2020 advises that as at April 13, 2020, Ontario had 7,953 confirmed cases of COVID-19. 1,912 of these cases were from persons aged 20-39 or 24 per cent of the total infections. There were a total of 334 deaths from COVID-19 as at April 13, 2020. There were no deaths of any persons 19 and under. The death rates of all infected persons under 60 years of age in Ontario is less than 1 per cent of confirmed cases. The death rates for people over 60 rises dramatically.
[50] The Crown also furnished an updated April 6, 2020 report from the Ministry of Community Safety and Correctional Services. The information includes:
Ontario has implemented several strategies to limit the effects of COVID-19 on our inmate population and our correctional staff. We have made great progress over the past weeks to reduce the population in our institutions, the annual average population hasn’t been as low as the current population since the 1989/1990 fiscal year.
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.
Quick Facts: As of April 6, 2020, there are 6,148 inmates in custody across all 25 institutions. This is a 26% reduction. Inmate Testing: Inmates tested as of April 3, 2020: Total tested for COVID-19: 77, total negative results:51, total pending results: 17, total positive results: 4, results unknown:
…Given the size of our population, this is currently a very small risk factor. In all positive cases, operational protocols related to infection prevention and control have been maintained and all appropriate steps have been taken to protect staff and other inmates…
[51] The Crown also provided an email exchange from Deputy Superintendent DuChêneau to the Hamilton Deputy Crown attorney.
[52] The applicant filed an unsworn affidavit with generic concerns raised about the conditions in jail. He claims that he is very concerned about his health. He provides a personal opinion - and not much more- that his assumption is that “it is only a matter of time before someone here is diagnosed as well. From my perspective, the Barton Street Jail is ill equipped to handle a global pandemic”. As well, I have been provided with other helpful information from counsel addressing these related issues.
[53] I take judicial notice of the COVID-19 pandemic as it can affect inmates housed in correctional facilities. While not compulsory, the applicant has presented no medical evidence or raised any specific health concerns regarding any pre-existing medical conditions that place him at a higher risk to contract COVID-19 or would make him more susceptible to more severe consequences from an infection from the virus.
[54] At this juncture, there is no evidence of a COVID-19 outbreak at the Hamilton Detention Centre. In fact, there are no inmates currently infected with COVID-19. As of the date of the materials filed, there were neither presumptive cases nor any testing for positive cases of COVID-19 in the Hamilton detention centre. Prisoners who enter the jail are quarantined for 14 days upon their arrival. The jail has protocols and is taking all necessary precautions. Of course, with the pervasiveness of COVID-19, there is always the real possibility of an inmate contracting the virus.
[55] Given the ubiquitous nature of this pandemic, and the novel, albeit evolving jurisprudence, there can be no surprise that there is differing opinion at the Superior Court level on the issue of COVID-19 as it affects the Palmer test and, more significantly, its application upon a proposed release plan on the secondary and tertiary grounds.
[56] For example, in R. v. Jeyakanthan, 2020 ONSC 1984, [2020] O.J. No. 1409, the accused was charged with a series of firearm offences and possession of MDMA. He was a young adult with no criminal record. He was detained on secondary and tertiary ground concerns. The original sureties were unsuitable because they could not supervise the accused. The revised release plan proposed different sureties and added a curfew and electronic monitoring. McWatt J. accepted that COVID-19 was a material change in circumstances warranting a de novo hearing.
[57] In her analysis, McWatt J. rejected the notion that inmates face an increased risk of contracting COVID-19 and did not follow Copeland J.’s finding in J.S. McWatt J. held that J.S. and cases that follow that line of reasoning were based on speculation and not evidence. She affirmed Edwards J.’s finding in R. v. Nelson, 2020 ONSC 1728, [2020] O.J. No. 1279, that medical evidence should be submitted by an applicant to show that he has underlying health issues that make them more susceptible to contracting the virus. Detention was ordered as there was no evidence that COVID-19 was present at the jail, or that the accused was more susceptible to the virus than other inmates; and even with electronic monitoring, the sureties would not be able to successfully supervise the accused.
[58] In Nelson, the accused was charged with serious, violent crimes and had a criminal record. While ultimately dismissing the bail review application, Edwards J. recognized the pandemic and the heightened difficulty facing detainees: see paras. 40 - 42. I am mindful that Nelson was decided very early on in the chronology of events involving the COVID-19 pandemic. As I stated in T.K., while the pandemic is daunting and challenging, I am reminded that the court must be mindful of the risks of releasing violent offenders back into the community for the sake of reducing the population in detention centres.
[59] In R. v. Budlakoti, 2020 O.J. No. 1352 (S.C.), the accused was initially detained on firearm offences. The court found that the COVID-19 health crisis warranted a review of the detention order on the basis of a material change in circumstances. Budlakoti had a recent and related criminal record and advanced the same release plan as at the initial hearing: house arrest and electronic monitoring with his parents as sureties. The court took judicial notice of the risks associated to the COVID-19 health crisis and the increased risk for inmates confined in detention centers. Budlakoti argued that since he suffers from gastroesophageal reflux disease, celiac disease, and mental health issues, he is subject to increased susceptibility and/or heightened symptomology from COVID-19 as compared to other inmates. Without “proper” medical evidence, Laliberte J. found Budlakoti’s argument to be a mere possibility. The court concluded that the steps taken by the jail authorities to manage the harms associated to COVID-19 lowered the risk for the accused in that case and he was detained.
[60] In the case of R. v. T.L., 2020 ONSC 1885, [2020] O.J. No. 1371, the accused was charged with multiple firearm offences and being an accessory after the fact to attempted murder. T.L. had a related record and was detained on secondary and tertiary ground concerns. Molloy J. concluded that a review of his detention was justified for two reasons. First, the new plan was markedly different from the previous plan including electronic monitoring. Second, there was a misapprehension of the evidence that affected the result of the initial bail hearing.
[61] In R. v. C.J., 2020 ONSC 1933, [2020] O.J. No. 1312, the accused was detained on drug and firearm offences. He applied for a review of his detention order which was rooted in concerns under the tertiary ground. C.J. is a young adult with no criminal record. Conlan J. held that the addition of electronic monitoring to the release plan coupled with COVID-19, constituted a material change in circumstances. Conlan J. expressly rejected the submission that courts need evidence that a particular accused is more at risk of contracting COVID-19 than if they were not in jail: at para. 9.
[62] In R. v. Cain, 2020 ONSC 2018, [2020] O.J. No. 1389, the accused was facing several serious and violent charges. Cain was initially released on these charges but is alleged to have breached his release order. He was detained on secondary ground concerns. The court determined that the existence of COVID-19 constituted a material change of circumstances. Cain had a dated and unrelated record. The court adopted earlier findings in J.S. and T.K. that the risk posed to inmates from COVID-19 is relevant, but not determinative as to whether an individual plan of bail meets the secondary and tertiary criteria governing release.
[63] In Cain, London-Weinstein J. rejected the suggestion in Nelson that an accused must satisfy the court that he has some subjective personal characteristic in order for the court to accept that he is at increased risk of infection by virtue of incarceration. The court takes judicial notice of the fact that recommended social distancing and frequent hand washing are not readily available while a person is in custody. The court accepted Cain’s testimony that as a result of a liver injury, he is prone to infections. The court was satisfied that Cain’s three months incarceration during a pandemic had a salutary effect on his willingness to follow court orders. He was released on house arrest bail with a residual support surety and electronic monitoring.
[64] In R. v. Rajan, 2020 ONSC 2118, [2020] O.J. No. 1437, the applicant was charged with domestic violence offences involving a firearm. Rajan was initially detained under the secondary ground. The court accepted that there has been a change of circumstances based both on the strength of the Crown’s case and the COVID-19 crisis. Rajan advanced the same release plan; however, two things had changed since the detention order in November 2019. First, with the exclusion of the firearm in a pre-trial motion, the prosecution’s case against the applicant had substantially diminished, with a corresponding weakening of the propensity inference against the applicant. Second, the applicant had now accumulated more pre-trial custody. In that case, Harris J. concluded that taken together, these two changes favoured release under the secondary ground.
[65] A recent case that was brought to my attention is R. v. Fraser, 2020 ONSC 2045. In Fraser, the accused unsuccessfully sought release from detention, arguing a material change in circumstances based on a new release plan and 2) the COVID-19 pandemic. He argued that the virus posed a potential health and safety risk to inmates in general, and to the accused in particular, because he was being housed with 12 other inmates and he was in remission from leukemia. The application judge agreed that the COVID-19 virus was a material change in circumstances warranting a de novo bail hearing, and that the heightened risk posed to detained inmates is a factor when assessing the primary, secondary and tertiary grounds for detention. The judge also accepted the accused’s testimony, the recommendations of health experts and that it was not possible to implement the protocols in his current living conditions. The accused was a cancer survivor which put him at increased risk; and his fear of the virus was motivation to comply with his release terms. Nevertheless, the judge denied the application because, weighed against the accused’s long history of disobeying court orders and unsatisfactory bail plan, the risk he posed to public safety could not be managed in the community.
[66] The majority of the aforementioned brief review, and in particular, Rajan and T.L. are distinguishable. However, I find that the discussion in Fraser as instructive.
[67] Dawson is charged with a violent offence and the allegations against the applicant are also extremely violent. It is through this lens that one must assess whether or not the COVID-19 crisis truly alters the balance under the secondary ground. For a true material change in circumstance to occur, even within the context of COVID-19, there must be a plan that materially addresses the concerns of the original jurist.
[68] Here, there is no change in the plan or a change in the strength of the Crown’s case, other than the applicant now infusing the addition of the COVID-19 pandemic as a basis for release.
[69] While I have held that this is an important factor amongst others in addressing the secondary (and tertiary) ground) it is not determinative and must be balanced with other considerations.
[70] Recognizing the COVID-19 pandemic in institutions as an important factor in any plan of release on the secondary ground, I have opined that there is an important distinction to be considered when addressing a release plan for non-violent offenders as opposed to those who are violent.
[71] Again, it bears repeating from T.K. at paras. 68 and 69:
Indeed, there is a delicate balance that need be put into play. However, drawing from St-Cloud, in my opinion, a reasonable and well-informed member of the public, about whose confidence in the administration of justice is concerned; being familiar with the basics of the rule of law and the fundamental values of criminal law, in conjunction with the ubiquitous nature of the current pandemic and a reasonable plan to address the release of non-violent offenders, would not lose confidence in the criminal justice system.
All this is not to suggest that violent offenders or those who commit crimes of violence could never be released on a bail review. However, notwithstanding the current pandemic, this can only occur if and when the well-established principles from the jurisprudence are satisfactorily addressed and not merely regurgitating a plan of release that was rejected at first instance.
[72] As mentioned, there is no obligation on the applicant to provide evidence about COVID-19 and its personal impact on him or her. That being said, as I implied in T.K., this Court must assess the material changes in circumstances from both the spread of a highly contagious disease and whether the new plan of release addresses all of the bail hearing judge’s concerns on the relevant grounds. I also must undertake the balancing exercise engaged in this review that is influenced by the specific precautions taken at the Hamilton Wentworth jail with the dearth of medical evidence to suggest that Dawson is at higher risk than other inmates.
[73] When I consider the current state of affairs in the specific detention centre with all the evidence that I have received with due consideration to the COVID-19 pandemic, I am compelled to conclude that in this case, the applicant’s risk of contracting the virus for this applicant is minimized. In other words, the pandemic, in of itself, does not advance the reasonableness of the plan to remedy the applicant’s continued detention on the secondary ground.
[74] Section 515(10)(b) of the Criminal Code requires a justice to consider whether detention is necessary for the protection or safety of the public.
[75] In R. v. H.(R.), 2006 ONCJ 116, 38 C.R. (6th) 291, Trotter J. (as he then was) highlighted that the level of violence attaching to an alleged offence is relevant to assessing the potential risk to the public; in part because of the danger serious violent offences pose to the community. See also R. v. Heang, 2011 ONSC 2037 and R. v. Croteau, 2016 ONSC 1515.
[76] In R. v. Aden, 2019 ONSC 2043, 2019 O.J. No. 2439, Dawe J. had occasion to address a bail review of a violent offender and noted at para. 24:
The critical question, in my view, is whether the Applicant’s proposed release plan is sufficient to allay the concerns about public safety and the protection of the public that would be presented by the Applicant’s release on bail…
[77] I agree with Ms. Quinn that although the surety may be well-intended, she is not up to the challenge of supervising Dawson. She cannot control the applicant with the attendant risks involved. Parks admitted that she was a surety for Dawson on two prior occasions. She conceded that Dawson had breached the terms during her supervision in the past, but did not revoke her surety in a timely fashion. She only felt compelled to revoke the surety days after the applicant was not following the terms. I remain unimpressed with her professed ability to supervise Dawson; with the excuses she provided for his past behaviour along with her explanation of his apparent new insights in order to explain why he would abide by terms of release.
[78] The applicant’s unsworn affidavit provides that he will abide by the terms of release. His criminal record is replete with crimes of violence and numerous breaches of court orders. He appears to be an offender with limited self-control. Accordingly, I am skeptical of his ability to adhere to public recommendations regarding physical distancing and stay at home rules. I am also not convinced that the applicant will follow the terms of bail rather risk being returned to jail where he is more likely to be exposed to COVID-19, whether or not its effects on him are ultimately non life-threatening. I say this because of the applicant’s criminal antecedents and conduct in failing to follow judicial orders and abide by conditions even while having been supervised by the very same surety in the past.
[79] The caution that I implied in T.K. when referencing the pandemic as potentially influencing a plan of release for violent offenders in custodial institutions on either the secondary or tertiary grounds is relevant in this case. As mentioned, the allegations are serious and violent. They were alleged to have been committed while the accused was on probation.
[80] Indeed, during this pandemic, an individual is required to adhere to social distancing and any rules implemented under quarantine legislation. An accused’s personal history regarding non-compliance with previous court orders is particularly relevant in assessing whether the accused would likely adhere to social distancing and stay-at-home rules. An accused who violates social distancing rules and stay at home rules would not be any safer at large than in an institution where risk is being managed adequately. The plan is deficient as Dawson is not at a low risk to re-offend.
[81] It bears repeating that in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while exercising the balancing required to sustain its fundamental role in the administration of justice and the protection of the public.
Disposition:
[82] In adding the COVID-19 pandemic into the proposed release plan’s “mix”, I am not persuaded that the applicant has met his onus. At this juncture, the applicant’s history of disobeying court orders with the unsatisfactory bail plan cannot alleviate the concerns about his being managed in the community. The applicant’s conduct gives reason to believe that he will continue to commit offences if released on bail, which would jeopardize the safety of the public. The exact same release plan proffered by the applicant at the original show cause hearing does not come close to addressing the secondary ground concerns today.
[83] For all of these reasons, the detention review application is dismissed and the applicant’s continued detention is ordered.
[^1]: Of course, this but one of several factors to consider when addressing the plan for release. [^2]: Samuels was followed in R. v. Al Safi, 2018 ONSC 326, [2018] O.J. No. 473. See also R. v. Raymer, 2015 ONSC 668, [2015] O.J. No. 594, at para. 29.
A.J. GOODMAN J.
Released: April 23, 2020
COURT FILE NO.: CR/20-90BR DATE: 2020-04-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – DANIEL DAWSON ___________________________ REASONS FOR RULING ON APPLICATION FOR DETENTION REVIEW AND JUDICIAL INTERIM RELEASE - SECTION 520 OF THE CRIMINAL CODE ___________________________ A.J. Goodman J.
Released: April 23, 2020