Court File and Parties

COURT FILE NO.: CR-20-002189-00BR DATE: 20200511 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Barrington Grant

BEFORE: Justice M.L. Edwards

COUNSEL: Mr. Peter Westgate, Counsel, for the Crown Mr. Reid Rusonik, Counsel, for the Applicant

HEARD: May 6, 2020, by teleconference

Endorsement – Bail Review

Overview

[1] This is an application brought by Mr. Grant for an order vacating the detention order made by Her Worship Justice of the Peace Shusterman on March 17, 2020, and for an order granting Mr. Grant judicial interim release pursuant to s. 520 of the Criminal Code.

[2] Mr. Grant is charged with two counts of possession of ammunition while prohibited; unauthorized transfer of ammunition; and unauthorized possession of a loaded firearm.

[3] While the Justice of the Peace had concerns with respect to the proposed plan of release, ultimately it was determined that Mr. Grant had met his onus as far as the secondary ground for detention was concerned. The Justice of the Peace, however, had serious concerns with respect to the tertiary ground, and while acknowledging that the Crown’s case did have “certain problems”, ultimately it was determined that Mr. Grant had not met his onus.

The Allegations

[4] The Crown alleges that on March 4, 2020, observations were being made by the police of a Ford SUV motor vehicle which it was believed was involved in the trafficking of firearms. The particular vehicle in question was observed attending at an Esso station, parked along side another motor vehicle. It is alleged that the driver of the Ford SUV was Mr. Grant.

[5] It is alleged that the investigating officers observed Mr. Grant exit the Ford SUV and approach the open window of the other vehicle, speaking with the driver of that vehicle. The officers involved will testify that they observed a transaction between Mr. Grant and this other individual, in which the officers believe that a firearm was transferred from one to the other. Both Mr. Grant and this other individual were subsequently arrested.

[6] When the other individual was searched, they observed a plastic bag in his lap. The bag contained ammunition. As a result of these observations, Mr. Grant was charged with trafficking in prohibited ammunition.

[7] The police then obtained a search warrant to search the Ford SUV. As a result of that search, a loaded prohibited firearm was located. Mr. Grant was the driver of the vehicle. The vehicle in question, the Ford SUV, was a rented vehicle. The firearm was discovered under the floor mat of the black cargo area adjacent to the back seat.

The Plan of Release

[8] It is proposed that Mr. Grant will be released from custody into house arrest, living at the residence of the proposed surety Jermi Needham (“Mr. Needham”). Mr. Needham lives in his two-bedroom condominium by himself. Mr. Needham owns and operates a hair salon close to his condominium and within five minutes of the Newmarket Courthouse. Mr. Needham is prepared to post whatever security the court deems appropriate. It is apparent that he has in excess of $150,000 in equity in his condominium.

[9] Mr. Needham proposes that not only will Mr. Grant reside at his condominium, but he will work at his hair salon when he is allowed to re-open. His hair salon at the present time is closed due to the COVID-19 pandemic.

[10] In addition to being supervised by Mr. Needham, it is proposed that Mr. Grant will be subject to electronic monitoring through the services of Recovery Science Corporation, a well-known electronic monitor provider and monitoring entity.

[11] Mr. Needham testified during the course of the bail review that was conducted by conference call. Mr. Grant did not participate in the conference call, and the bail review was conducted in his absence with the consent of Mr. Rusonik.

[12] Having listened to the evidence of Mr. Needham I am satisfied that he understands the responsibilities that would be imposed on him as a surety, and that despite his own very dated criminal record he would report any violations of Mr. Grant’s bail conditions immediately to the police.

Mr. Grant’s Background

[13] Mr. Grant was born on October 31, 1977, making him approximately 42 years of age. He is separated from his wife, Dionne Grant. Ms. Grant indicates in her affidavit filed in support of this application that she has an amicable relationship with Mr. Grant and they co-parent their children. Ms. Grant has agreed that should Mr. Grant be released from custody, she will pay the monthly cost of the electronic monitoring.

[14] Mr. Grant has a significant criminal record. There are two convictions in youth court, one in 1993 and one in 1995. In 1996, he was convicted of one count of failing to comply with a recognizance, and then in 2001 he was convicted of attempted murder for which he received a nine year penitentiary sentence. In 2010, Mr. Grant was convicted of one count of assault and one count of possession of a prohibited weapon. There are no other convictions since 2010. The facts relating to the attempted murder conviction are of significance given that the information before the court would suggest that Mr. Grant, together with other individuals, shot the victim in the lobby of an apartment building. Mr. Grant evaded arrest by fleeing to the United States, where unfortunately for him he was shot and subsequently arrested, and then returned to Canada where he ultimately was convicted of attempted murder.

Mr. Grant’s Health Issues

[15] Since his arrest, Mr. Grant has been incarcerated at the Central East Correctional Centre (“CECC”). The information provided would suggest that there has been one person allegedly infected with the COVID-19 virus.

[16] Mr. Grant was stabbed in 2013, as a result of which the medical records from Sunnybrook Health Science Centre confirmed multiple stab wounds to his chest which necessitated emergency surgery. The court was provided with a letter from Dr. Mikhail, which confirms that Mr. Grant continues to have “thoracic stigmata” since the stabbing in 2013. Dr. Mikhail expresses the recommendation that Mr. Grant “take precautions by self-isolating when possible and avoid all contact with potentially infected individuals”.

[17] Mr. Grant’s ex-wife, Ms. Grant, in her affidavit addresses Mr. Grant’s health issues and states “his immune system was apparently damaged as he gets many more colds and flus than he did prior to the injury and it takes him much longer to recover from them compared to before the injuries. His heart was also seriously damaged, and he tires much quicker and suffers dizziness and headaches”. The Crown did not seek to cross-examine the aforesaid statements of Ms. Grant, nor was any request made to examine Dr. Mikhail. I therefore accept that Mr. Grant does have health issues that may render him more at risk to contracting COVID-19 than other inmates who might be incarcerated at the CECC. It equally goes without saying that Mr. Grant would be more susceptible to contracting COVID-19 if he does not follow the advice of the public health authorities and practice proper social distancing if he were to be released. This, in my view, is a relevant factor when it comes to the assessment of both the secondary and tertiary grounds.

Position of the Crown

[18] Mr. Westgate expressed concerns with respect to the primary, secondary and tertiary grounds. As it relates to the primary ground, Mr. Westgate points to the fact that in relation to the shooting in January 2001 that ultimately resulted in Mr. Grant’s conviction for attempted murder, he actually fled the scene and went to the United States.

[19] As it relates to the secondary ground, Mr. Westgate points to the fact that Mr. Grant has a significant criminal record. Mr. Grant is subject to a prohibition order for life as it relates to any restricted weapon. The facts of this case allege that Mr. Grant was the operator of a vehicle transferring ammunition, and that a gun was found in that vehicle being driven by Mr. Grant.

[20] As for the tertiary ground, Mr. Westgate candidly conceded that he could not argue that Mr. Grant would be safer in jail, but that the plan of release does not really allow for the social distancing that Mr. Grant’s medical condition might otherwise require. Mr. Westgate argues that contrary to the submissions made by the defence the Crown does have a reasonably strong case, and that given the circumstances of the offence involving a restricted weapon for which Mr. Grant could potentially receive a significant jail term, the public would not have confidence in the plan of release and, as such, the application should be dismissed.

Position of the Defence

[21] Mr. Rusonik concentrated his arguments on the tertiary ground. However, as it relates to the primary ground, Mr. Rusonik points to the fact that Mr. Grant’s criminal record does not reveal any history of a breach of any court orders while he was an adult, and that as it relates to the secondary ground the only conviction for failing to comply with a court order occurred in 1996 which, of course, is a very dated conviction.

[22] As for the plan of release, Mr. Rusonik argues that with the plan of supervision offered by Mr. Needham coupled with the electronic monitoring, this court can have confidence that Mr. Grant will not reoffend if he was released from custody.

[23] As for the tertiary ground, and particularly the strength of the Crown’s case, Mr. Rusonik completely disagrees with the position asserted by Mr. Westgate, and argues that to this point no evidence has been produced by the Crown to demonstrate that the police had reasonable grounds for the search that they conducted on the day in question. As such, Mr. Rusonik argues that the Crown’s case is weak, and that the evidence as presented at this point is equivocal as to whether or not Mr. Grant was the buyer or the seller of the alleged ammunition.

[24] As it relates to the consideration of COVID-19, Mr. Rusonik argues that this should tip the balance in favour of Mr. Grant’s release. This is particularly so not only because of Mr. Grant’s pre-existing health issues, but also because of the fact that if he is not released there is no telling how long Mr. Grant would be incarcerated awaiting his trial date.

Analysis

[25] If it was not for the fact that the Canadian border was, for all intents and purposes, closed as a result of the COVID-19 pandemic, this court would have some concern with respect to the primary ground given Mr. Grant’s history of having fled to the United States when he participated in the shooting that ultimately resulted in his conviction for attempted murder. For the present time the border is closed and, as such, the primary ground for detention is not an issue. If and when the border does reopen, Mr. Grant is to surrender any passport that he may have in his possession.

[26] As it relates to the secondary ground, I am satisfied with the plan of release. The court can have confidence with the supervision that will be provided by Mr. Needham, together with the backup electronic monitoring, that Mr. Grant will not reoffend while he is under house arrest.

[27] The real concern, however, is with respect to the tertiary ground. While the COVID-19 pandemic was at its initial stages when the hearing took place before the Justice of the Peace, I am more than satisfied now that as events have progressed the COVID-19 pandemic does constitute a material change in circumstance. The COVID-19 pandemic is, in my view, relevant with respect to both the secondary and tertiary grounds. I agree with and adopt the comments Henschel J. in R. v. Soloman, ONCJ 2020 0416, Newmarket Court File No. 1908879, where at para. 41 she stated:

What is less clear is how the potential risk to persons in custody posed by the pandemic impacts upon the assessment of the secondary ground for detention. In my view, the COVID-19 health crisis has relevance to the secondary grounds in that courts should consider the impact the risk posed by the virus may have on the state of mind of an accused person and the likelihood that they will comply with the proposed terms of bail. A court may conclude that fear of reincarceration, with the potential for an increased risk of infection and risk of delay of trial due to the pandemic, may act as a powerful motivator for some individuals that will persuade them to comply with terms of bail despite past failures.

[28] Henschel J. denied the accused’s release in Solomon because in her view he still posed a serious threat to the public, and the risk of contracting the virus in jail did not change that fact. Nonetheless, on the facts presented by Mr. Grant given his pre-existing health condition, I am satisfied that the fear of reincarceration is a relevant consideration that leads me to conclude that the proposed terms of release substantially lowers the risk that Mr. Grant would reoffend and risk being reincarcerated.

[29] As for the strength of the Crown’s case, I accept the submissions made by Mr. Rusonik that at this point there may be a viable defence presented on behalf of Mr. Grant as it relates to the search that ultimately revealed the firearm. Regardless, there still remains the observations made by the investigating officers and the fruits of that investigation. While the Crown’s case may not be the strongest of cases, if convicted Mr. Grant does face a not insignificant period of incarceration given that the offences involve a restricted firearm, ammunition and the violation of a prohibition order. All of these are relevant considerations as they apply to the application on the tertiary ground.

[30] Ultimately, this court must weigh the potential impact of the COVID-19 pandemic on Mr. Grant in the application of the tertiary ground. In that regard, I agree with the comments of Di Luca J. in R. v. Neverson, 2020 ONSC 2698, where he states at para. 31:

I accept that keeping people in custody increases their risk of infection, particularly where they may have a pre-existing medical issue. I also accept the public confidence in the administration of justice must be considered from an informed perspective that is aware of the significant risk posed by COVID in the carceral setting. In this regard, I am prepared to take judicial notice that the risk of infection is best managed by reducing the number of people who are kept in jail during the currency of the crisis.

[31] Ultimately, each case must be decided on its facts. In this case, the court has medical evidence that supports the fact that Mr. Grant has a pre-existing medical condition that may render him more susceptible to contracting COVID-19. That risk may very well be enhanced if he remains in custody, where his ability to socially distance is impacted.

[32] Mr. Grant will continue to be more susceptible to contracting the COVID-19 virus whether he is incarcerated or whether he is released, simply because he has a pre-existing medical condition. Mr. Grant, like any human being, will fully understand that the risk is increased if he is returned to custody as a result of his violating any of the bail conditions that will be imposed on him. In the absence of the medical evidence referenced above, given Mr. Grant’s propensity demonstrated by his criminal record for the commission of crimes involving firearms, the application of the tertiary ground would have tipped in favour of his continued incarceration.

Order

[33] Mr. Grant will be released from custody on the following terms:

1. He shall submit to electronic monitoring with Recovery Science;
2. He shall reside under terms of house arrest at 260 Davis Drive, Unit 903, Newmarket, Ontario;
3. Mr. Jermi Needham shall act as Mr. Grant’s surety and shall post bail in the amount of $25,000.00 without deposit;
4. Mr. Grant may only leave the residence while supervised by Mr. Needham. The purposes for which Mr. Grant may leave the residence in the company of Mr. Needham shall be limited to: a) Attending at Mr. Needham’s place of employment for the purposes of Mr. Grant working as an employee of the Trendsetters Hair Salon located at 87 Davis Drive East, Newmarket, Ontario; b) Obtaining any necessary medical treatment; c) Attending a religious service once per week; d) Obtaining the necessities of life once per week.
5. Mr. Grant shall have no association with his co-accused Alireza Beyreghiyan;
6. Mr. Grant shall have no unsupervised access to a cell phone or the internet. Mr. Grant shall only be allowed the use of a cell phone in the company of Mr. Needham, the sole purpose for which shall be to speak with immediate family members;
7. With the permission of Mr. Needham and under his supervision, Mr. Grant shall be allowed visitors at the residence. Those visitors are to include only immediate family members, including his children (subject to appropriate social distancing);
8. Mr. Grant shall only leave the residence in accordance with the terms set forth above, provided that Recovery Science can accommodate such departures from the residence;
9. Mr. Grant shall agree to any other proposed terms of release that may be required by Recovery Science.

[34] As counsel did not have an opportunity to make submissions with respect to all of the aforesaid terms of release, counsel were given a copy of the proposed terms of release by the trial coordinator and advised they could make further submissions to the court. Counsel were ultimately able to agree on the terms of release which I have endorsed.

Justice M.L. Edwards Date: May 11, 2020