Court File and Parties

COURT FILE NO.: CR-20-00000131-00BR DATE: 20200507 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – S.H. Applicant

COUNSEL: R. Liberman, for the Respondent Z. Puil, for the Applicant

HEARD: May 1, 2020.

Reasons for Decision

SCHRECK J.:

[1] S.H. was taken to the hospital after being shot several times. While treating his life-threatening injuries, hospital personnel allegedly found a loaded handgun on his person, which resulted in him being charged with a number of firearm possession offences. Following a bail hearing, S.H., who is 19 years old and has a lengthy youth record, was detained on the secondary and tertiary grounds.

[2] S.H. now applies to this court for a review of the decision to detain him. He submits that the current COVID-19 pandemic constitutes a material change in circumstances justifying a reconsideration of the decision to detain him. He submits that he is at an increased risk of contracting COVID-19 while in custody and that his fear of this happening will be a powerful incentive for him to abide by any bail conditions. This, combined with a proposal that he be subject to electronic monitoring, addresses the secondary ground concerns. He also submits that the danger of a COVID-19 outbreak at the custodial institution must now be considered in relation to the tertiary ground.

[3] Because of the pandemic, this application was heard by me remotely. I received documentation from the parties electronically and heard evidence and submissions by way of teleconference. Following the hearing, I reserved briefly and then advised the parties that I was prepared to release S.H. on very strict conditions with reasons to follow. These reasons explain that decision.

I. FACTS

A. The Allegations

[4] In July 2019 in a residential area in Toronto, the sound of numerous gunshots was heard, after which the applicant was found lying on the side of a road. He had been shot several times and was seriously injured.

[5] The applicant was taken to a hospital by paramedics. While treating him, medical personnel found a handgun in his pants, which they turned over to the police. The gun was loaded with 13 rounds of ammunition, one of which was in the gun’s chamber. The magazine was capable of holding 17 rounds, which makes it a prohibited device.

[6] The police later discovered 11 spent casings at the scene where the applicant was shot as well as two live rounds. None of these came from the gun seized from the applicant.

B. The Applicant’s Injuries

[7] One of the bullets had entered the applicant’s body through his left abdomen, went through his liver and lodged near his scapula. Another went through his left armpit and two more went through his left shoulder and broke his clavicle. Part of the applicant’s liver had to be removed. The applicant’s injuries were life threatening and he was unconscious for two days after arriving at the hospital. He was arrested when he recovered consciousness. After being discharged from the hospital, he was taken to the Toronto South Detention Centre (“TSDC”) and has remained there since that time.

C. The Bail Hearing

[8] The applicant had a bail hearing over the course of three days in December 2019 and January 2020, at the conclusion of which he was ordered detained on the both the secondary and tertiary grounds.

D. The Applicant’s Circumstances

[9] The applicant is 19 years old. Prior to his arrest, he resided with his parents. He has a substantial youth record that includes findings of guilt for possession of property obtained by crime, dangerous operation of a motor vehicle, failing to remain at the scene of an accident, armed robbery and break and enter. He also has three findings of guilt for failing to comply with a recognizance.

[10] On two occasions while in custody at the TSDC, the applicant was found in possession of a sharpened object, or what is often referred to as a “shank.” One of these resulted in a criminal charge which remains outstanding.

E. The Proposed Plan of Release

[11] The applicant proposes that he be released on a recognizance with his parents and his cousin as sureties. He would be subject to house arrest which would be enforced by some form of electronic monitoring.

II. ANALYSIS

A. The Secondary Ground

(i) Overview

[12] The Crown accepts that the current COVID-19 pandemic constitutes a material change of circumstances that justifies a de novo consideration of the applicant’s detention. However, the Crown continues to oppose his release on the secondary and tertiary grounds.

[13] Section 515(10)(b) of the Criminal Code states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” In this context, a “substantial likelihood” means “a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226, at para. 87.

(ii) The Secondary Ground Concerns in This Case

[14] As Crown counsel points out, there is much cause for concern on the secondary ground in this case. The applicant has been found guilty of breaching his bail on several occasions. At the time of his arrest on these charges, he was subject to a firearms prohibition. He has been found guilty of several violent offences in the past. He has twice been found guilty of dangerous driving, both times as a result of his attempting to flee from police officers. He has in the past absconded from an open custody facility. The Justice of the Peace at the initial bail hearing described the applicant as “ungovernable”. The description is not inaccurate.

[15] The applicant submits that because of his injuries, in particular the removal of part of his liver, he fears contracting COVID-19 while in custody and will therefore abide by his bail conditions in order to ensure that he is not returned to custody.

[16] There is little cause for optimism in this case. While I accept that the applicant fears for his health, his past history shows that he is prone to behave impulsively without considering the consequences of his behaviour. Left to his own devices, he is not likely to abide by the conditions of his bail and I fear that his sureties, however well intentioned, would be unable to prevent any breaches.

(iii) Electronic Monitoring

[17] In addition to three sureties, two of whom would live with him and one who would live nearby, the applicant has proposed that he be subject to electronic monitoring, either through private arrangements with Recovery Science Corporation (“RSC”) or through the Electronic Supervision Program (“ESP”) that has recently been implemented by the Ontario government. While electronic monitoring can be an effective tool, it is not without its limitations. It can reveal where an individual is, it cannot reveal what he is doing. More importantly, it cannot directly prevent a person from breaching his bail. It can only afford evidence that he has done so after the fact: R. v. Jesso, 2020 ONCA 280, at paras. 24-27.

[18] I am not particularly concerned that the applicant will commit offences while at home under house arrest. All of his criminal activity has been while he was outside the home. I am far more concerned that he will breach a house arrest condition by leaving his home and committing criminal offences elsewhere. As noted, electronic monitoring cannot directly prevent this. However, what it can do is make it virtually certain that any breach will be quickly detected. As was observed by Nordheimer J. (as he then was) in R. v. Doucette, 2016 ONSC 852, at para. 5, “electronic monitoring does significantly reduce the likelihood that an accused person will commit an offence … because the accused has to know that in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area.” See also R. v. B.M.D., 2020 ONSC 2671, at paras. 56-58; R. v. Rajan, 2020 ONSC 2118, at paras. 32-33; R. v. T.L., 2020 ONSC 1885, at para. 22.

[19] Having carefully considered the evidence in this case, I have with some reluctance come to the conclusion that with very strict conditions enforced by the proposed sureties as well as electronic monitoring, the applicant can meet his onus of establishing that there is not a substantial likelihood that he will commit further offences if released.

[20] As noted earlier, electronic monitoring in this case can either be through RSC or the ESP. The applicant would prefer the latter as it is without cost while RSC charges significant fees. However, while RSC is able to use a global positioning system (“GPS”) to track an individual’s whereabouts at all times, ESP uses static monitoring which can only indicate whether an individual is within a certain radius. With the former, even if the applicant has left his home for a permissible purpose such as attending court, his location will be tracked and recorded. With the latter, the system will only indicate that he was absent from his home.

[21] While I am sympathetic to the applicant’s family’s concerns about the financial burden of imposing monitoring through RSC, given the applicant’s history, I am of the view that the increased level of monitoring it offers is necessary in this case to ensure that the applicant abides by the conditions of his bail.

B. The Tertiary Ground

(i) Overview

[22] Section 515(10)(c) of the Criminal Code provides that detention is justified on the tertiary ground if it is necessary to “maintain confidence in the administration of justice, having regard to all the circumstances.” Public confidence refers to the perception of reasonable members of the community who are informed about the philosophy behind the bail provisions in the Code, Charter values and the actual circumstances of the case. It does not take into account the perceptions of those prone to emotional reactions, those who do not have knowledge of the circumstances of the case or who disagree with society’s fundamental values: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 75-80.

[23] The tertiary ground is conceptually distinct from the primary and secondary grounds. The latter relate to an assessment of the probability that the accused will behave in a certain way, that is, fail to attend court or commit further offences. The tertiary ground is not concerned with predictions about the accused’s behaviour but, rather, with public perception. There is not necessarily a direct correlation between detention and the maintenance of public confidence. In some cases, detaining an accused without justification will undermine public confidence: St. Cloud, at para. 86.

(ii) The Statutory Factors

[24] Subsections (i) to (iv) of s. 515(10)(c) of the Criminal Code provide a non-exhaustive list of circumstances which the court should consider in relation to the tertiary ground: (i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[25] In this case, the Crown’s case is very strong, given that the firearm was found on the applicant’s person by hospital personnel. The gravity of the offences is great. The proliferation of firearms in Toronto is a significant problem that causes great concern to the public. I was provided with statistics showing that the number of shooting events thus far this year (up until the end of April) are greater than it was last year at this time. The circumstances surrounding the commission of the offence are also a great cause for concern. Not only was the firearm loaded, but there was a round in the chamber, suggesting that the gun was ready to be fired. If convicted, the applicant is likely to receive a significant penitentiary sentence. All of the enumerated factors favour detention in this case.

[26] However, as noted earlier, the factors set out in subsections (i) to (iv) are not exhaustive: R. v. St. Cloud, at paras. 66-71. In this case, there are additional relevant factors, namely, the COVID-19 pandemic and the anticipated delay in the applicant’s trial.

(iii) COVID-19

(a) The Pandemic

[27] At the time these reasons were prepared, over 3,500,000 people worldwide have been infected with the coronavirus that causes COVID-19 and over 240,000 have died as a result. There are over 61,000 cases in Canada, more than 18,000 of which are in Ontario, and over 3,900 deaths, over 1,300 of which are in Ontario. [1] Most governments, including those of Canada and Ontario, have attempted to control the spread of the disease by implementing various strategies to minimize contact between individuals. This is commonly referred to as “flattening the curve.”

(b) Dr. Aaron Orkin

[28] On this application, the applicant filed an affidavit by Dr. Aaron Orkin, a physician and epidemiologist. Dr. Orkin’s credentials are impressive. In addition to a medical degree, he holds a graduate degree in public health and is a doctoral candidate in clinical epidemiology. He practices emergency medicine at two Toronto hospitals and is the Medical Director of the St. Joseph’s Health Centre COVID-19 Assessment Centre. He is also responsible for planning a COVID-19 response strategy for Inner City Health Associates, an organization which provides health services to people experiencing homelessness. He has authored and co-authored numerous peer-reviewed publications, including several relating to health care for individuals in prison. Dr. Orkin was not cross-examined and his evidence was not challenged by the respondent.

[29] In his affidavit, Dr. Orkin discusses COVID-19 outbreaks in what he refers to as “congregate living facilities”, a public health care term that refers to settings where many people live together, such as long-term care facilities, homeless shelters, and correctional institutions. Dr. Orkin states:

Preventing outbreaks in congregate living facilities is a top priority for a flatten-the-curve strategy, for four reasons:

(1) First, outbreaks in tight spaces happen extremely quickly and are near-impossible to control once they occur. Global experiences with cruise ships are a case-in-point.

(2) Second, people living in congregate living facilities tend to have underlying comorbidities that make them more prone to serous adverse outcomes (ICU admission or death) from COVID-19. This is true in long-term care facilities, homeless shelters, and prisons.

(3) Third, outbreaks in congregate living facilities can overwhelm health care systems, meaning that scarce resources are consumed by local congregate living outbreaks before the epidemic takes hold in the general population.

(4) Fourth, outbreaks in congregate living facilities serve as tinder for the fire in more generalized outbreaks. Unlike cruise ships, people in congregate living settings including the staff who work there transfer disease into the general population.

Therefore, preventing disease in congregate living facilities is critical for flattening the curve across the entire population. All this means that protecting congregate living settings and preventing outbreaks there is about protecting the health of the entire population.

[30] In Dr. Orkin’s view, the degree of physical distancing required to reduce COVID-19 transmission is simply not possible in a correctional institution because of the space constraints. As he puts it, “This is a geometry problem, not a policy or strategy problem.” As a result, “it is extremely likely that a COVID-19 outbreak will occur in correctional facilities”, which would put the health of inmates, the staff and the public is at risk.

[31] While Dr. Orkin recognizes that courts must take several considerations into account is determining whether an individual should be released, he states that from a public health perspective,

… [e]very person who is discharged from a correctional facility to a private residence is an opportunity to flatten the curve and improve health for the individual involved, other inmates in the facility in question, staff at the facility in question, and the public.

(c) The “Response to COVID-19 Information Note”

[32] The respondent relies on a document entitled “Response to COVID-19 Information Note” (the “Information Note”), which is dated April 28, 2020 and was authored by two Strategic Advisors in the Institutional Services Division of the Ministry of the Solicitor General (“MSG”). The document states that as of April 28, 2020, there were 5,685 inmates in 25 Ontario correctional institutions. Of the 448 who had been tested for COVID-19, 92 were positive, 282 were negative, results were pending for 47 and the results for the rest were unavailable. Six of the positive results were for inmates at the TSDC, although one of those was an individual serving an intermittent sentence who was not in custody. [2] The document also outlines a number of steps that have been taken to prevent COVID-19 outbreaks at Ontario institutions.

[33] Unlike earlier versions of this document, the authors are now identified and the document contains only factual information. The authors no longer express any opinion about the efficacy of the measures that have been taken or about the level of risk inmates face.

[34] Dr. Orkin reviewed an earlier version of the Information Note, which he discusses in his affidavit. In his view, the steps that have been taken are essential, but do not change his opinion that outbreaks are likely in custodial institutions.

(d) Deputy Superintendent Marchant

[35] I heard evidence from John Marchant, a Deputy Superintendent at the TSDC in charge of health and safety and the pandemic response. He was responsible for developing and implementing a safety protocol for the TSDC.

[36] Mr. Marchant testified that since the pandemic began, steps have been taken to reduce the inmate population at the TSDC from 1300 to just over 900. The number had recently increased because a COVID-19 outbreak at the Ontario Correctional Institute led to that facility being closed and 114 inmates being transferred to the TSDC.

[37] Mr. Marchant gave detailed evidence about the steps that have been taken to prevent a COVID-19 outbreak at the TSDC. These include screening of all individuals who enter the building, isolation of new inmates or those showing symptoms, testing of inmates with symptoms, and enhanced cleaning procedures for some parts of the institution. Cells, however, are cleaned by the inmates themselves.

[38] I will not outline Mr. Marchant’s evidence in detail. It is clear that he and others are working very hard to prevent a COVID-19 outbreak at the TSDC and that thus far, those efforts have proven successful. However, Mr. Marchant acknowledges that an outbreak may still occur.

(e) The Pandemic’s Impact on the Tertiary Ground

[39] I accept that the MSG and the staff at the TSDC are taking active steps to prevent a COVID-19 outbreak. However, I accept Dr. Orkin’s evidence that the risk of an outbreak in a congregate setting is significant. The recent outbreak at the Ontario Correctional Institute, which occurred despite all of the measures outlined in the Information Note, demonstrates this.

[40] Despite the efforts that have been taken, reducing the inmate population to the extent possible remains an important part of the goal of flattening the curve in Ontario and Canada. Indeed, the MSG recognizes this, as it has taken a number of steps to significantly reduce the inmate population. It follows, in my view, that those who can be safely released from custody should be.

[41] In this case, there is evidence that the applicant may be at a higher risk of suffering adverse effects if he contracts COVID-19 because part of his liver was removed. Crown counsel submitted that while there is evidence that having liver disease puts one at higher risk, it is not clear if missing part of one’s liver constitutes liver disease or if the missing part of the applicant’s liver has grown back. Given this submission and some of the language in the cases I have been referred to, I think it is worth clarifying the relationship between COVID-19 and the tertiary ground.

[42] Obviously, being removed from an environment where there is an increased risk of contracting COVID-19 benefits the accused, especially if there is a health condition which the disease could exacerbate. However, the benefits of release to the accused, while of some relevance, is not the primary focus of the tertiary ground. Rather, it is the public’s perception of and confidence in the administration of justice that matters. Based on Dr. Orkin’s evidence, reducing the inmate population to the extent possible contributes towards flattening the curve, which benefits not only inmates, but society as a whole. This point was made by my colleague, Molloy J., in R. v. T.L., 2020 ONSC 1885, at para. 36:

Detention prior to trial is difficult at the best of times, which is one of the reasons that, on sentencing, extra credit is provided for pre-trial custody. In the middle of a pandemic, serving that time in an institution is even more difficult. Transmission of the virus would be so much easier within an institution than in a private home. Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment. Not only that, the more people that are housed in the institutions, the harder it will become to achieve any distancing to prevent infection or to contain or treat any infections that do occur. 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. 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).

See also R. v. Kazman, 2020 ONCA 251, at para. 18; R. v. Hearns, 2020 ONSC 2365, at paras. 11-14; R. v. J.S., 2020 ONSC 1710, at para. 19; R. v. Kandhai, 2020 ONSC 1611, at para. 7.

[43] Everyone in Ontario has been asked to help flatten the curve. We have stayed home. We have stopped going to restaurants, theatres and sporting events, visiting friends and relatives, and spending time in parks or at the beach, all with a view towards minimizing the circumstances in which large groups of people congregate and thereby facilitate the spread of the virus. A reasonable person who has made these sacrifices would expect the courts to do what they can towards the same goal. Keeping people in congregate settings undermines the efforts we have made. To be sure, some people must remain in custody to prevent them from endangering the public. But if those concerns can be addressed in some other way that does not undermine our efforts to control the pandemic, public confidence in the administration of justice is enhanced: R. v. Ali, 2020 ONSC 2374, at para. 98; Rajan, at paras. 69-70.

(iv) Delay

[44] Court operations are currently suspended due to the COVID-19 pandemic. It is not yet known when they will resume. When they do, there is bound to be a significant backlog of cases. Although the applicant was arrested in July 2019, no date has yet been set for a preliminary inquiry or trial. In these circumstances, it is likely that the applicant will not be tried for a significant period of time. This is also relevant to the tertiary ground and weighs against detention: T.L., at para. 34.

III. DISPOSITION

[45] For the foregoing reasons, the applicant was ordered released on a recognizance with three named sureties. He is to remain in his residence at all times except for pre-arranged medical, dental or legal appointments or to attend court (in which case he must be in the company of a surety) or for medical emergencies, he is not to possess any weapons or prohibited devices, and he is not to occupy the driver’s seat of a motor vehicle. He must also enter into and be bound by the terms of the contract with RCS.

Justice P.A. Schreck

Released: May 7, 2020

Footnotes

[1] https://covid19.who.int/; Public Health Agency of Canada, “Daily Epidemiology Update – May 5, 2020”, pp. 1-2.

[2] This figure is outdated because as discussed later, the Ontario Correctional Institute has been closed down because of a COVID-19 outbreak there and many of the infected inmates have been transferred to the TSDC.