Court File and Parties

COURT FILE NO.: CR/20-93 BR DATE: 2020-05-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent W. Milko, for the Crown Attorney

• and -

A.F. Applicant J. Miglin, for the Applicant

Heard: April 29, 2020

REASONS FOR RULING ON APPLICATION FOR BAIL REVIEW - 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 Publication Ban is continued pursuant to ss. 517(1) of the Criminal Code. However, in the interests of justice, these reasons may be circulated and used by counsel for other court proceedings. Appropriate redactions in regards to the names of the accused and sureties along with the specific details of the offences must be respected.

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. The applicant, A.F, was detained following a bail hearing on October 29, 2019 before Justice of the Peace Valeriano of the Ontario Court of Justice in Hamilton.

[2] The applicant is now charged with possession of cocaine and with proceeds of crime along with use a firearm in a careless manner, point a firearm and discharge a firearm with intent to wound and other firearms related offences, contrary to their respective provisions of the Controlled Drugs and Substances Act and Criminal Code respectively. The alleged offences arise from events that occurred on September 24, 2019 in Hamilton.

[3] Pursuant to s. 515(10), the justice of the peace ordered the applicant’s detention on the secondary and tertiary grounds. A.F. has remained in custody since his arrest on September 24, 2019. The preliminary inquiry has not yet commenced.

[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 presented evidence and made oral submissions. In support of the review, the applicant filed various sworn affidavits. Viva voce evidence was presented and the Crown had the opportunity to cross-examine the applicant and the proposed sureties. 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. An oral ruling and written reasons were provided to the parties.

Positions of the parties:

[7] The applicant argues that this Court is in a position to review the decision under the evolving authorities and principles to fashion a form of release to meet the secondary and tertiary ground concerns. In support, the applicant submits that there are four bases to sustain a material change of circumstances. First the COVID-19 pandemic. Second, the extensive delay that has resulted in this case. Third, the federal Crown has withdrawn the more serious possession for the purpose of trafficking count in favour of a charge of simple possession. Fourth, a renewed and solid release plan.

[8] Mr. Miglin emphasizes that consideration ought to be given to my recent decision in R. v. T.K., 2020 ONSC 1935 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.

[9] The applicant submits that his personal circumstances – his health issues and the concerns with COVID-19 at the jail puts him at an even greater risk and clearly does not allow for any form of meaningful social distancing.

[10] The applicant is proposing a strong, enhanced and highly-restrictive plan of supervision. The applicant submits that these sureties - in tandem - are able to provide comprehensive supervision in order to address the secondary and tertiary ground concerns raised by the Crown attorney during this hearing.

[11] In response, the Crown disagrees that there is a material change in circumstances and that this Court can consider this bail review de novo. The Crown submits that this court ought to take a narrow approach to the assessment of the threshold issue.

[12] Based on some of the recent jurisprudence, the Crown accepts the general notion that inmates face an elevated risk of contracting the virus as a result of their inability to self isolate. Further, the Crown acknowledges there may be circumstances where COVID-19 can affect the analysis for a material change of circumstances or the secondary or tertiary grounds. However, this is not one such case. There is no cogent support for the evidence adduced at this hearing that A.F. has pre-existing medical condition that places 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.

[13] The Crown says that the strength of the Crown’s case, the violence alleged by a discharge of a firearm near a school, with A.F.’s youth record for failing to comply has not changed the concerns over the applicant’s inability to follow court orders. The charges are serious and carry a significant penitentiary term. The only change in the plan is the additional influence of COVID-19, and perhaps electronic monitoring.

[14] Alternatively, even if the application does constitute a material change in circumstance, the Crown submits that there is a substantial risk that the applicant would reoffend and that 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.

[15] The Crown says that the issue is whether the material change in circumstance would have impacted the original jurist’s decision. Further, the public’s confidence in the administration of justice would be defeated by this plan of release. Moreover, the Crown asserts that none of the factors elicited by the applicant adequately address the secondary or tertiary grounds and warrant A.F.’s continued detention.

Summary of the Evidence:

[16] A summary of the evidence and allegations before Justice of the Peace Valeriano is reflected at pp. 5 - 13 of the transcript. 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.

On September 24, 2019, police responded to shots fired at the Cathy Wever Public School at 160 Wentworth Street North. Witnesses at the scene provided a description and direction of travel of the male who fired the shots towards another male who was standing in front of the school. At the time of this shooting, there were two teachers on the playground on duty supervising young children who were on the playground. The individual who shot at the other man kept running and a witness began to chase the guy who was the shooter, described him as five foot eight, five foot nine, black male with black pants, with gold teeth grills, black running shoes, black baseball cap, black hoodie, carrying a black duffel bag. Both the victim and the suspect were out front of the school when the shots started. He described the gun as a pistol, black. Two or three gunshots were heard by the numerous witnesses. Subsequently, the police discovered that the target of the shooting was not cooperative with police.

The shooter seen fleeing westbound on Cannon Street. An officer was in his police cruiser travelling eastbound on Century Street approaching Wentworth Street. At that time he observed a male matching the suspect's description trying to conceal himself behind a white car parked in the driveway of 57 Century. The officer got out of his vehicle, drew his firearm and pointed it at the male and issued a police challenge. The male raised his hands and stated"it wasn't me, it wasn't me." As he was saying this, he slowly back up into the rear yard, suddenly turned, fled north through the rear yard of 57 Century Street. The officer began pursuing the male who hopped the fence into an alley and down the street. Again the officer drew his firearm and issued a police challenge. He was able to place the male, who identified himself as A.F., under arrest. The officer also noted that he had gold grills in his teeth. A police service dog proceeded to search every rear yard in the area of A.F.’s flight near the white car where A.F. had secreted himself. An officer found a black and tan .38 special revolver. There were six ammunition shells inside the cylinder, of which three were empty spent shells. Upon a search of A.F.’s backpack, police located various items including 9.1 grams of cocaine.

Legal Principles:

[17] 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.

[18] 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.

[19] 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.

[20] The fundamental rights require that the justice ensure that interim detention is truly justified having regard to all of the relevant circumstances of the case.

[21] 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 in St-Cloud. When 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.

[22] Given the generally expeditious nature of the interim release process Wagner J. (as he then was) states at para. 129 of St-Cloud:

In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr.C. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr.C.

[23] 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". At para. 130, Wagner J. notes "that the pre-trial detention of accused persons -- like their release -- is by its nature very often interim and not final”: See also R. v. A.A.C, 2015 ONCA 483, [2015] O.J. No. 3450, at para. 52.

[24] 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. 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.

[25] 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.

[26] The tertiary ground provides that the application of s. 515(10)(c) is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove that the detention of the accused is justified to maintain confidence in the administration of justice.

Analysis:

Material Change in Circumstances – Application of the Legal Principles:

[27] 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.

[28] Mr. Miglin submits that with the current pandemic, the preponderance of recent jurisprudence from the Superior Court opens the door to a threshold consideration of a material change in circumstances and a hearing de novo. This material change of circumstances goes beyond just the threshold issue to invoke a hearing de novo. In effect, 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.

[29] Without comingling the material tests under St-Cloud, the applicant’s assertions are relevant both to the threshold issue and to an assessment of whether the court would permit a plan of release. In T.K., the Crown conceded a material change in circumstances due to the pandemic. Nonetheless, implicit in my judgment was support for such a conclusion.

[30] 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.

[31] 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 more recent cases such as R. v. J.A., 2020 ONSC 2312, R. v. Dawson, 2020 ONSC 2481, and R. v. P.K., 2020 ONSC 2694, is dispositive of this threshold issue. Hence, the applicant has successfully satisfied the criteria as outlined in St. Cloud and its progeny. 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. Thus, I need not consider the other grounds advanced by the applicant in support of the Palmer test.

[32] 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 and tertiary grounds for detention.

The Principle of Cross-examination at a Bail Review:

[33] Before addressing the plan of release, I turn to an important issue raised by applicant’s counsel. Mr. Miglin submits that in this or any bail review, the Crown must first seek leave to cross-examine the applicant or sureties who present affidavits in support of a release plan. Counsel relies on the recent decision of Barnes J. in R. v. A.K., 2020 ONSC 1555, [2020] O.J. No. 1121. In A.K., Barnes J. concluded that in the bail context, the right to cross-examine is modified and Crown counsel must request leave to cross-examine a proposed surety either on the issue of suitability of the surety and or on the suitability of the release plan. In support of his decision, Barnes J. relied on the words of Baynton J. in R. v. Wilson, [1997] S.J. No. 610 (Sask. Q.B.), at para. 4 as follows:

The rules of evidence applicable to a trial do not apply to judicial interim release hearings. These proceedings by their very nature must in most cases be conducted summarily and on short notice. If the rigid procedures of a trial have to be met, the result will be delay, inconvenience, and additional expense, and the spirit and intent of the bail provisions will be defeated.

[34] With respect, in my opinion, A.K. is wrongly decided on the issue of leave.

[35] There are generally two issues to be determined at a bail hearing: detention or release, and the conditions of release. Pursuant to s. 515(2)(c) of the Criminal Code, an accused can be ordered released on his entering into a recognizance with sureties. A surety is an individual who supervises the accused and ensures that the accused remains faithful to his or her pledge to the court. Where an order is made that an accused shall be released on his entering into a recognizance with sureties, there may be an additional issue for the court’s determination: the suitability of the proposed sureties. [1]

[36] In 2019, Parliament attempted to streamline the manner in which information about sureties is presented to the court. Section 515.1 of the Criminal Code makes the filing of a surety declaration (addressing the enumerated topics) mandatory when a judge is asked to name a surety in a release order. Similarly, r. 20.05(1)(c) of the Criminal Proceedings Rules for the Superior Court of Justice stipulates that when an accused files a review application, they must also file the affidavit of any person whom it is proposed shall serve as a surety for the accused.

[37] Section 518(1)(a) of the Code permits the justice or judge to make inquiries about the accused “on oath or otherwise” and s. 518(1)(e) permits the court to receive and base its decision on trustworthy hearsay evidence, including affidavits. Therefore, the court may determine the suitability of a proposed surety without having them testify, and even without their attendance in court. While the defence case may be tactically disadvantaged by failing to call a prospective surety to testify, the presence of a prospective surety in court is not a jurisdictional or essential prerequisite to the conduct of a review hearing: see R. v. Brooks (2001), 153 C.C.C. (3d) 533 (Ont. S.C.); R. v. Villota (2002), 163 C.C.C. (3d) 507; R. v. Renaud, 2010 ONSC 5300, [2010] O.J. No. 4322; R. v. J.V. (2002), 163 C.C.C. (3d) 507 (Ont. S.C.); R. v. Tunney, 2018 ONSC 961, 44 C.R. (7th) 221.

[38] Although the final determination of a proposed surety’s suitability is a judicial function, it has become routine in Ontario for the accused to produce any proposed sureties for cross-examination by the Crown attorney.

The Fundamental Importance of Cross-Examination:

[39] The ability of the opposing party to cross-examine a witness is an integral part of the adversarial system of justice. [2] As explained by the Supreme Court of Canada in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, cross-examination is “a faithful friend in the pursuit of justice and an indispensable ally in the search for truth”: at para. 1. While the bail hearing is not a trial, three purposes are generally attributed to cross-examination: first, to weaken, qualify or destroy the opponent’s case; second, to support the party’s own case through the testimony of the opponent’s witnesses; and third, to discredit the witness. [3] Wide latitude is afforded opposing counsel to accomplish these ends.

Cross-Examination as a Principle of Natural Justice:

[40] In criminal proceedings, the obligation to hold a fair hearing, reflected in the principles of natural justice, is due to both the accused and to the Crown: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at pp. 385-6. In certain cases it may be argued that an erroneous restriction of the right to cross-examine amounts to a breach of natural justice. The Supreme Court of Canada has held that this argument should succeed only where there has been a complete denial of the right to call witnesses or to cross-examine prosecution witnesses: R. v. Forsythe, [1980] 2 S.C.R. 268. Mere disallowance of a question or questions on cross-examination does not amount to jurisdictional error.

[41] In Innisfil (Township) v. Vespra (Township), [1981] 2 S.C.R. 145, quoting from Halsbury’s Laws of Canada, the Supreme Court held the “[r]ejection of a request to be permitted to cross-examine witnesses who appear at a hearing for the other side will normally be construed as a breach of natural justice; but it is not a necessary ingredient of natural justice that one who has submitted relevant evidence in writing or ex parte must be produced for cross‑examination, provided that the evidence is disclosed and an adequate opportunity is given to reply to it”: at pp. 168-69.

The Relaxed Approach at a Bail Hearing:

[42] The bail reform legislation of 1972, in force in much the same terms today, is recognized as a liberal and enlightened system of pre-trial release: R. v. Bray (1983), 2 C.C.C. (3d) 325 (Ont. C.A.) at p. 328. The statutory regime was designed to ensure early pre-trial release with a speedy or quick determination of the bail issue: R. v. Gillespie (1984), 16 C.C.C. (3d) 140 (Ont. C.A.) at pp. 143-4.

[43] Section 518 of the Criminal Code, the section which establishes the evidentiary parameters of bail hearings under s. 515, is also applicable to review hearings. The Supreme Court reflected on those provisions in Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 28:

To avoid any delay prejudicial to an accused who ought to be released, while at the same time ensuring that those who do not meet the criteria for release are kept in custody, compromises had to be made regarding the nature of the evidence to be adduced at the bail hearing. There are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of the accused in custody is justified.

[44] Trotter J.A. in The Law of Bail in Canada, notes that there is a need in bail hearings to resolve the tension between fairness and efficiency. “Within reasonable bounds, bail hearing procedure should be sufficiently flexible to promote both a fair and an expeditious proceeding”: J.V., at para. 72.

Review of the Jurisprudence:

[45] There is jurisprudence which supports the proposition that where the Crown attorney disputes the surety’s evidence, they should be entitled to cross-examine. In R. v. West (1973), 9 C.C.C. (2d) 369, the Court of Appeal considered the then relatively new provisions of the Bail Reform Act. The majority held that if the information was not presented by agreement, then evidence needed to be tendered. Moreover, the court found that subject to s. 457(1)(b) [now s. 518(1)(b)], both sides should have the right to cross-examine with respect to any evidence adduced by the other.

[46] In R. v. Hajdu (1984), 14 C.C.C. (3d) 563 (Ont. H.C.), interpreting what is now s. 518(1)(e), Barr J. held where “relevant matters” contemplated in s. 518(1)(d) are disputed, submissions may not be relied on. He reasoned that the exclusive method of testing disputed assertions was through cross-examination of primary witnesses.

[47] In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 61, the Supreme Court of Canada held that ordinarily, once an affidavit is produced, the basic rules of evidence require the affiant to submit to cross-examination because the right to cross-examine is essential to give any weight to an affidavit. Moreover, as the Court of Appeal for Ontario noted in R. v. 1353837 Ontario Inc. (2005), 193 C.C.C. (3d) 468, cross-examination of a witness on a sworn statement is the main way of testing that witness’s evidence.

Cross-Examination of a Proposed Surety:

[48] The right to cross-examine is neither unlimited nor absolute, and its importance varies with the nature of the proceedings. A bail review hearing is neither a pre-trial hearing, nor a trial, nor a preliminary inquiry. It is an inquiry to determine whether or not detention is justified. “The show cause hearing is meant to be expeditious with a degree of flexibility and procedural informality sufficient to protect liberty interests and the security of the public”: R. v. John, [2001] O.J. No. 3396 (Ont. S.C.), at para. 56.

[49] The objectives of the bail provisions can best be achieved by Crown counsel exercising restraint in cross-examining proposed sureties and where the right to cross-examine is exercised, by ensuring that any cross-examination is undertaken with an aim of addressing the suitability of the proposed surety. With regard to the manner in which Crown discretion ought to be exercised, I echo Hill J.’s comments in R. v. J.V., at para. 70:

As a quasi-judicial officer, Crown counsel, in any adversarial proceeding, is duty-bound to protect the legal and constitutional rights of the arrested person. To this end, the prosecutor's exercise of discretionary judgment on bail issues cannot be driven by slavish adherence to zero tolerance policies or the recommendations of high profile coroner's inquest recommendations. This would amount to the exercise of no discretion at all and guarantee arbitrariness on the facts of certain cases.

[50] As a point of comparison, typically at a bail hearing in Ontario, the Crown attorney will read in a statement of evidence as to the criminal allegation(s) in support of the Crown’s case. Because this approach has become so widely accepted, the Crown need not ordinarily have witnesses present for a bail hearing. Despite defence counsel having the right to request that the Crown produce an officer to provide viva voce evidence, it is a right that is exercised sparingly. In situations where defence counsel has questions about the veracity of the synopsis, additions, modifications or limitations may be worked out with the cooperation of counsel to accommodate everyone’s interests. This approach has, for the most part, proved satisfactory and negated the need to call oral evidence. However, this does not restrict the right of the defence to insist that the Crown present witnesses with relevant information to provide at the show cause hearing for cross-examination.

[51] Recall, although the right of cross-examination will mean different things in different contexts, counsel are always bound by the rule of relevancy. As mentioned earlier, the question of whether an accused should be released on a recognizance with sureties is a separate issue from whether he in fact has suitable sureties. Where the applicant proposes a surety, the purpose of the hearing is to enable the judge to determine the suitability of the surety.

[52] Whether sureties should be examined during a bail hearing is a matter that should be decided on a case-by-case basis. The judicial officer should determine how it may be effectively done. Some of the less formal procedures including surety affidavits and questionnaires, are options for consideration. As with any other issue that might arise during the cross-examination of a surety, the presiding justice may limit or terminate a cross-examination that becomes unduly protracted, irrelevant or abusive.

[53] In summary, in A.K., Barnes J.’s concerns may have arisen from the notion of the overuse of sureties as a requirement of bail and the standard practice to have them testify at bail proceedings. However, affidavits filed and left unchallenged may give rise to a distorted foundation for a plan of release. In my opinion, requiring leave is an overstep. Of course, Crown counsel must not exercise the right of cross-examination unnecessarily in testing the reliability of a proposed surety. At the same time, cross-examination must be confined to what is necessary to determine whether the proposed surety is suitable and restrict cross-examination where it is unlikely to assist the court in reaching a conclusion on the narrow question before it.

The Plan for Release:

[54] The applicant proposes an enhanced plan and sureties, albeit somewhat similar to that presented at the initial show cause hearing. In their respective affidavits, the sureties advise that they not only appreciate the seriousness of the applicant’s charges but also recognize the expectations of their responsibilities. The plan includes strict house arrest terms, primary supervision from both his mother and great-aunt coupled with the option of additional supervision of a GPS electronic ankle monitor.

[55] The Crown only sought to cross-examine the applicant and his mother. The applicant’s mother had been her son’s surety (responsible person) in the past and reported his breach to the authorities. She confirmed her son’s health issue. She explained that she has strict house rules and would not hesitate to call the police if he failed to comply.

[56] Steven Tan, Director of Operations for Recovery Science Corporation, provided detailed information and confirmed in a letter the availability and suitability of electronic monitoring in this case. He advised that such monitoring can be implemented at the residence being proposed.

[57] While the Crown raised some concerns about A.F.’s mother’s ability to supervise, the fundamental issue is with the applicant’s ungovernability and adherence to terms of bail and failing to follow his mother’s house rules.

Analysis: Secondary Ground:

[58] In addressing COVID-19, I refer to the earlier case of R. v. J.S., 2020 ONSC 1710. While in J.S., Copeland J. was tasked to consider a bail review premised on the tertiary ground soon 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.

[59] 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.

[60] 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.

[61] As mentioned, in this hearing de novo, the Crown renews its concerns on the secondary grounds. Mr. Milko 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, especially where there is allegations of violence.

[62] 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 21, 2020 advises that as at April 21, 2020, Ontario had 12,245 confirmed cases of COVID-19. 2,781 of these cases were from persons aged 20-39 or 22.7 per cent of the total infections. There were a total of 659 deaths from COVID-19. There was one death of persons 20 - 39. 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.

[63] The Crown also filed an updated April 21, 2020 report from the Ministry of Community Safety and Correctional Services. The extensive information in this report includes, but is not limited to:

Ontario has implemented several strategies to limit the effects of COVID-19 on our inmate population and our correctional staff. Through the combined actions of the Ministry of the Solicitor General and the Ministry of the Attorney General, the population in Ontario’s adult correctional institutions has been reduced significantly.

Quick Facts: As of April 6, 2020, there are 5,707 inmates in custody across all 25 institutions. This is a 32% reduction since March 16, 2020. Inmate Testing: Inmates tested as of April 20, 2020: Total tested for COVID-19: 392, total negative results: 176, total pending results: 92, total positive results:67, results unknown: 57…

On April 17, 2020, an outbreak was declared by Peel Public Health at the Ontario Correctional Institute (OCI). The ministry temporarily closed the facility on April 21, 2020 after transferring all inmates to the Toronto South Detention Centre (TSDC). All inmates who have been transferred from OCI have been placed in medical isolation and appropriate protocols are being followed to ensure protection of staff and inmates. OCI inmates have been placed in a separate part of TSDC…

Facilities are inspected and thoroughly cleaned regularly and/or as required…In the case of a confirmed positive case of COVID-19, an outside vendor will come in to complete a deep cleaning in the areas where the employee was working and/or travel pattern within the facility… Inmates are provided with cleaning supplies and direction on the proper cleaning protocols, as well as appropriate PPE where necessary…Proper handwashing and cough/sneezing protocol has also been communicated to inmates. For health and safety reasons, inmates are not provided with hand sanitizer, but may have supervised access in some cases. Information has been posted in inmate areas…Staff have access to PPE including face masks, eye protection, gloves and gowns, and are instructed to wear it when appropriate according to Guidelines developed by the Ministry of Health…Inmates also have access to PPE including face masks and are instructed to wear it when appropriate according to guidelines developed by the Ministry of Health.

If an outbreak of a reportable communicable disease occurs or is suspected, institution officials take immediate precautionary containment measures in accordance with operating procedures, including notifying the local Medical Officer of Health, and SolGen provincial health professionals. Institution health care staff working collaboratively and under the direction of the local Medical Officer of Health to manage the situation, including containment strategies such as medical isolation.

[64] On April 24, 2020, a COVID-19 outbreak was declared at the Hamilton jail. Apparently, one inmate tested positive for COVID-19 as did one correctional officer. The Crown submits that the institution is taking all necessary steps to contain this outbreak. A letter dated April 28, 2020 was provided from Tom Dykstra, Superintendent of the Hamilton-Wentworth Detention Centre. Some of the information therein included:

On Friday April 24th, 2020, Hamilton-Wentworth Detention Centre was made aware that an inmate housed in our isolation unit had tested positive for COVID-19. Hamilton Public Health declared this positive test an outbreak as the source of the virus could not be traced.

Since the outset of this COVID-19 pandemic, HWDC undertook extensive procedures as outlined in our “Isolation Unit Practices” document, in order to prevent the spread of this virus. I have attached Appendix A which is the HWDC Isolation Unit Practices.

Very little has changed at the HWDC since Public Health has declared an outbreak as the HWDC was already leading the province in its practices and procedures. The HWDC is not in lockdown.

The inmate who contracted COVID-19 was already housed in a single cell in isolation and did not have any contact with any other inmates.

The Correctional Staff who dealt with the infected inmate were a limited number of dedicated staff. They all wore complete Personal Protective Equipment [PPE] and continue to do so. All Correctional Staff who had contact with the inmate are identified, currently in isolation and are being tested.

[65] The applicant raised concerns about the conditions in jail: “[t]he conditions I have faced in custody have been difficult. I have spent a significant amount of time in lockdown and/or some kind of segregation. I have only permitted outside for one hour a day. I was placed into to disciplinary segregation for three days in January of 2020, but for reasons that was never explained to me I remained in segregation for much longer. Further, I have been tested and diagnosed with chronic anemia. As a result of this condition, I suffer dizzy spells, fatigue, rapid heartrate, lightheadedness, which make day to day functioning difficult. Since I have been in custody, I have not received my medication to treat my anemia, despite making multiple requests. Further, I have not received any meal supplements for my anemia. I am also lactose intolerant, and I still receive dairy in my meals on a regular basis. I feel my health has been deteriorating since I have been in custody. I am concerned this may put me at a higher risk if I contract Covid-19 while in custody.”

[66] In cross-examination, he was challenged to explain the reasons and his conduct for his prior breach of recognizance. He also testified that he had been in segregation from January 27 to April 11, 2020, for 23 hours a day. This was initially premised on a punitive measure for an altercation he had in the jail. A.F. advised that he still does not know the reasons for his extended period of segregation. The Crown was given an opportunity but did not seek to call evidence in reply to explain this situation.

[67] 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.

[68] 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.

[69] 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.

[70] 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.

[71] In R. v. Budlakoti, 2020 ONSC 1352, [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. The accused had a recent and related criminal record and advanced the same release plan as at the initial hearing. 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. The accused 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 and the accused was detained.

[72] 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.

[73] 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.

[74] 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. 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.

[75] 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.

[76] 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 important things had changed since the detention order. First, with the exclusion of the firearm in a pre-trial motion, the prosecution’s case had substantially diminished, with a corresponding weakening of the propensity inference against the applicant. Second, the applicant had now accumulated more pre-trial custody. Harris J. concluded that taken together, these two changes favoured release under the secondary ground.

[77] I take judicial notice of the COVID-19 pandemic as it can adversely affect inmates housed in correctional institutions. 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. As I stated in T.K. and J.A., 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.

[78] Again, it bears repeating that any decision along this analysis is not intended to send out a message that due to the pandemic there exists a revolving door policy for offenders, and in particular, violent offenders to commit crime with the expectation of release or that offenders can now benefit with a “get out of jail free” card. As I held in 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.

[79] Thus, 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.

[80] As mentioned, there is now some evidence of a COVID-19 outbreak at the Hamilton Detention Centre. I accept Superintendent Dykstra’s informational letter as to the steps the institution is taking. I am satisfied that the jail has established protocols and is taking all necessary and reasonable precautions. From my perspective, the Hamilton jail is reasonably well-equipped to handle the outbreak at this juncture.

[81] As discussed in recent cases, there is no obligation on the applicant to provide evidence about COVID-19 and its personal impact on him or her. Of course, with the pervasiveness of COVID-19, and the nature of the institution, there is always the possibility of any inmate housed in a secure and restricted setting from contracting the virus. In this case, the applicant has presented some medical evidence and raised a specific health concern regarding a pre-existing medical condition. Whether that medical condition places him at a higher risk to contract COVID-19 or make him more susceptible to severe consequences from an infection is not conclusive.

[82] Notwithstanding the COVID-19 situation, the law is clear that the release plan must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: St-Cloud, at paras. 135, 137. 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.

[83] Despite finding that the applicant was a danger to the public based on the allegations, in a very thorough and detailed analysis, the justice of the peace was ultimately satisfied, based on the strength of the proposed plan of supervision, that the applicant had not discharged his onus. The allegations against the applicant involve violence, a factor that can be relied upon as a significant reason for detention on the secondary ground.

[84] 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.

[85] 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…

[86] A.F. has a record that includes findings of guilt pursuant to the Youth Criminal Justice Act (“YCJA”). Specifically, on October 9, 2018, he was found guilty of obstruct justice and breach of recognizance and received six months probation. He does not have any offences of violence listed on his record.

[87] In this case the federal Crown has withdrawn the possession for the purpose of trafficking charge in favour of simple possession. In an email sent to counsel, the federal Crown consents to the applicant’s release. That being said, the provincial Crown attorney has a strong case with numerous eye-witnesses to the shooting, the recovery of the firearm forensic evidence including GSR found on the applicant.

[88] I have considered Mr. Milko’s able comments regarding the applicant’s background leading up to the current offenses. This includes A.F.’s conduct while on a previous form of release. It is through this lens that one must assess whether or not the COVID-19 crisis truly alters the balance under the secondary ground.

[89] 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 medical evidence to suggest that A.F. is at higher risk than other inmates.

[90] Overall, when I reflect upon the current state of affairs at the Hamilton jail and with due consideration to the efforts being made at the institution in relation to the COVID-19 pandemic, I am compelled to conclude that in this case, the applicant’s risk of contracting COVID-19 is prevalent; but to a reasonable extent, is under some degree of control.

[91] Moreover, I must consider the delay question as it pertains to this case. The applicant says that the Ontario Court of Justice was not able to offer a date for a preliminary inquiry until February of 2021, over 16 months after the date of the alleged offence and in presumptive violation of the applicant’s rights under s. 11(b) of the Charter. I accept that the first date available for the court for a five-day preliminary inquiry was over one year after the date was sought by counsel. Notwithstanding Mr. Milko’s oral assertions that the Crown would look into the case or consider a direct indictment, this inordinate delay in the Ontario Court is an additional factor for this review.

[92] 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. Indeed, this case involves a firearm. Nevertheless, I would not go as far as to consider A.F. as a repeat violent offender. I say this because A.F. is a youthful offender with no prior convictions or findings of guilt for crimes of violence.

[93] With violence implicated in these offences and given the applicant’s criminal antecedents including his past failure in following judicial orders and abide by stringent terms of bail, I would not likely find that the plan would be sufficient to address the secondary ground concerns in “normal” times.

[94] 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 stay-at-home rules.

[95] However, in this case, there is a stringent plan of release with a strong surety in place. I am persuaded that over an extended term of bail the sureties would be able to adequately supervise A.F. I am satisfied with A.F.’s mother’s demonstrated willingness and ability to monitor her son. She had no hesitation in contacting the police on a prior occasion. I was impressed with her evidence and how seriously she takes her responsibilities. She pledged a significant amount of money in support of her assertion that her son will abide by strict conditions. I am also persuaded that the addition of electronic monitoring will address the secondary ground concerns. Accordingly, I find that the applicant will follow the terms of bail rather than 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.

[96] In my consideration of the COVID-19 pandemic and the release plan proposed, I conclude that there is not a substantial risk that A.F. will commit other offences or interfere with the administration of justice. The applicant has met its onus on the secondary ground.

Analysis: Tertiary Ground:

[97] The applicant was also detained on the tertiary ground. Again, the justice of the peace provided a thorough analysis of the reasons for detention.

[98] In addressing the Crown’s concerns in this case, Mr. Miglin referred to recent cases, including J.S. Counsel submits that the COVID-19 pandemic and the evidence adduced at this hearing can displace any of the concerns on the tertiary ground.

[99] The four circumstances outlined in s. 515(10)(c) are: Detention is justified where it is necessary to maintain [public] confidence in the administration of justice, having regard to all of the circumstances, including: The apparent strength of the prosecution’s case; the gravity of the offence; the circumstances surrounding the commission of the offence, including whether a firearm was used; and 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.

[100] The four circumstances listed in the Criminal Code are not exhaustive. A court must not order detention even in situations where the four listed circumstances support this result. Rather, the court must instead consider the totality of the circumstances of each case, paying particular attention to the four listed circumstances to determine whether detention is justified. St-Cloud, paras. 68 and 69.

[101] The heightened risk posed by COVID-19 to incarcerated individuals is echoed in the affidavit of physician and epidemiologist, Dr. Aaron Orkin. As noted by Dr. Orkin at para. 27: “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. This is a geometry problem, not a policy or a strategy problem. There simply is not enough space to create the distance required between people in Ontario corrections facilities.”

[102] I am cognizant that Dr. Orkin is an epidemiologist focussed squarely on the public health implications of continued incarceration. He said as much at para. 37: “My opinion is concerned only with what is in the community’s best interest with respect to the imminent threat of a COVID-19 pandemic. Subject to other considerations, any solution that promotes and enables physical distancing between individuals is in the community’s best interest for the management of COVID-19”. The qualification of being “subject to other considerations” is important.

[103] The community’s best interest with respect to managing the COVID-19 pandemic is a relevant consideration with respect to the tertiary ground. But on the tertiary ground, the question of detention or release is focused on the public’s perception of the administration of justice. This is broader than the community’s best interest in the management of the pandemic. In addressing what is ultimately at stake, in St.-Cloud, Wagner C.J. quoted from R. v. Collins, [1987] 1 S.C.R. 264 at p. 282. “Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?” “The reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable.”

[104] The issue raised by Dr. Orkin is whether administration of justice would be brought into disrepute by continued detention, given the health risks to inmates and correctional staff. But his analysis, at the epidemiological level, is not granular enough for our current purposes. At the end of the day, after balancing all of the relevant considerations, the ultimate question is whether detention is necessary to maintain confidence in the administration of justice. This balancing exercising requires examination of all the relevant factors as they relate to this accused and whether his detention or release would bring the justice system into disrepute. In other words, if an accused is released, the accused person's release plan must be relevant to whether public confidence in the administration of justice is capable of being maintained: R. v. B.(A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.), at p. 501.

[105] A review of some of the current caselaw on the tertiary ground demonstrates the multiplicity of considerations in determining this issue.

[106] Recall the case of T.L. The primary ground was not in issue. The tight supervision plan (house arrest surety bail) satisfied the accused’s onus on the secondary ground. Molloy J. affirmed Copeland J.’s finding in J.S. that the risk posed to inmates from COVID-19 is a factor to consider under the tertiary ground. The additional time that T.L. would be in custody pending his trial due to COVID-19 was a factor to take into account on the tertiary ground. A well-informed member of the community, knowing all of this information would continue to have confidence in the administration of justice if T.L. was released on bail under strict terms.

[107] In R. v. M.K., 2020 ONSC 2266, the accused had demonstrated a significant health concern that made him particularly susceptible to the virus. At para. 58, London-Weinstein J. stated:

I regard the Covid-19 virus threat as one factor which must be balanced with all of the relevant factors to determine whether the tertiary ground concerns can be met in this case. I would not have released MK if Covid-19 had not posed such a fundamental threat to the health of MK, who has a previously collapsed lung and the risk of reoccurrence of this condition.

[108] In R. v. Fraser, 2020 ONSC 2045, 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 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 grounds for detention. The judge also accepted the accused’s testimony that it was not possible to implement the protocols in his current living conditions. The accused was a cancer survivor and his fear of the virus was motivation to comply with 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.

[109] Again, it is through this lens that one must assess whether or not the COVID-19 crisis truly alters the balance under the tertiary 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. Indeed, an accused person's release plan must be relevant to whether public confidence in the administration of justice is capable of being maintained: R. v. B.(A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.), at p. 501. Another consideration is the individual health concerns of an accused. In MK, it tipped the scales in favour of release. In Fraser, it did not.

[110] As mentioned, A.F. is charged with a serious offence. The Crown has a strong case. The allegations against the applicant are rooted in violence within the sphere of a school and children. A.F. is potentially facing a significant penitentiary term.

[111] Of course, with the pervasiveness of COVID-19, and the nature of the institution, there is always the possibility of any inmate housed in a secure and restricted setting from contracting the virus. In this case, the applicant has presented some medical evidence or raised a specific health concern regarding a pre-existing medical condition that, at its highest, may suggest that it could make him more susceptible to more severe consequences from an infection. Where an applicant has an established health concern in light of the ongoing pandemic, this consideration may play a prominent role under the balancing exercise engaged in respect of the tertiary ground.

[112] I also accept that for some unexplained reason, the applicant was placed in segregation for 2.5 months unrelated to any ongoing misconduct. In my view, this may have had a salutary effect on his immaturity and conduct. I have also considered the inordinate delay and unavailability of the court in scheduling dates for the preliminary inquiry, through no fault of the applicant or his counsel. The Crown’s concession to review the case and seek out earlier dates or proceed with a direct indictment does not defeat my trepidation about the delay for the purposes of this bail review.

[113] I confess that this decision is a close call. The touchstone of the tertiary ground is the need to maintain public confidence in the administration of justice. In adding the COVID-19 pandemic into the proposed release plan’s “mix”, with the applicant’s potentially precarious health circumstances, electronic monitoring, and the inordinate delay arising in this case, I am persuaded that the public confidence is preserved and the applicant has met his onus to attenuate the concerns on the tertiary ground.

Disposition:

[114] 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. For all of these reasons, the bail review application is granted.

(A Ban on Publication of the following terms and conditions is ordered)

[115] REDACTED FOR PUBLISHING PURPOSES

A.J. GOODMAN J. Date: May 7, 2020

COURT FILE NO.: CR/20-93 BR DATE: 2020-05-07 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – A.F.

REASONS FOR RULING ON APPLICATION FOR BAIL REVIEW - SECTION 520 OF THE CRIMINAL CODE

A.J. Goodman J. Released: May 7, 2020

Footnotes:

[1] The surety approval process can but does not have to take place in court as part of the bail hearing.

[2] Innisfil Township v. Vespra Township, at p. 167. A detention review hearing is an “adversarial proceeding”: The Queen v. Morales, at p. 109.

[3] Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada, 2018).