Court File and Parties

COURT FILE NO.: CR-20-00000137-00BR DATE: 20200515 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. F.D.

BEFORE: Molloy J.

COUNSEL: Adele Monaco, for the Applicant (Defendant) Henry Poon, for the Respondent (Crown)

HEARD: May 11, 2020, by conference call

Endorsement

PUBLICATION BAN pursuant to ss. 517(1) and 520(9) of the Criminal Code. [FOR CLARITY - COUNSEL ARE PERMITTED TO CIRCULATE ENDORSEMENT TO OTHER COUNSEL OR USE IN COURT. PUBLICATION AND QUOTATION OF GENERAL PRINCIPLES FROM THE CASE IS PERMITTED. PUBLICATION IS PROHIBITED OF ANY FACTS ABOUT PARTICULAR DEFENDANT’S CHARGES, AND IDENTIFYING INFORMATION ABOUT THE DEFENDANT OR HIS PERSONAL CIRCUMSTANCES]

Introduction

[1] This is an application for bail review. The accused (“F.D.”) is currently being held at the Toronto South Detention Centre pending trial for charges that arose on January 5, 2019. He was ordered detained on May 3, 2019, after a bail hearing before Justice of the Peace Montreuil. F.D. now applies for a review of that detention order based on a material change in circumstances.

[2] This application for bail review proceeded before me, on consent, by way of conference call. F.D. was on the call for its entirety, as was his counsel and Crown counsel. All of the documents were filed electronically. The two proposed sureties (F.D.’s fiancée Stephanie Petrucci and her mother Claudia Petrucci) were examined and cross-examined under a solemn affirmation to the truth, as was Robert Petrucci (the father of Stephanie Petrucci), who I asked to participate in the hearing because he would be living in the same house under the proposed release plan.

[3] At the conclusion of the evidence and submissions by counsel, I advised that I would be ordering F.D.’s release under a very strict plan of supervision, comprising house arrest and electronic monitoring. I further advised that brief written reasons for this decision would follow. Those reasons are set out below.

Current Charges and Criminal Record

[4] F.D. is now 29 years old. The first substantial entry on his criminal record is from September, 2012, when he was convicted of robbery while using an imitation firearm and sentenced to a total of 13 months, followed by two years’ probation. At that time, a 10-year weapons prohibition order was also issued. While on bail awaiting trial for that robbery charge, F.D. breached a condition of his bail, for which he was sentenced (in March 2012) to seven days in custody in addition to the one day already served. In 2015, F.D. breached his probation order, for which he was fined $450.00.

[5] On December 14, 2018, F.D. was convicted of unauthorized possession of a firearm, in addition to the separate offence of being in possession of that firearm in breach of the prior prohibition order. He was sentenced to a six-month conditional sentence, to be followed by a 12-month period of probation. One of the terms of the conditional sentence was a period of house arrest, when F.D. was under the supervision of his parents and required to be in their home on Panorama Court.

[6] Three weeks later, on January 5, 2019, F.D. was arrested by police in the parking lot of a nightclub at Keele and Steeles. This was a clear breach of the house arrest term of his conditional sentence. F.D. was charged with a number of offences, including breaching that term of his conditional sentence. In March 2019, F.D. pleaded guilty to that breach. However, he has entered not guilty pleas to the remaining charges, upon which he is now awaiting trial. Those charges are:

• two counts of possession of the same prohibited firearm (under ss. 91(1) and 92(1) of the Criminal Code);
• possession of a prohibited device (an over-capacity magazine in that same firearm);
• occupying a motor vehicle knowing that a firearm was present; and,
• breaching a prohibition order by possessing that same firearm.

[7] According to the police synopsis of these charges, as referred to at the original bail hearing, at about 1:20 a.m. on January 5, 2019, F.D. a police car on routine patrol was driving past a Toronto nightclub when it was nearly hit by two cars attempting to reverse out of the parking lot at the same time. They investigated both cars for suspected impaired driving. F.D. was a passenger in the back seat of one of those cars, along with four other young men. The police officers reported smelling fresh marijuana, and ordered all of the occupants out of the car. One of the officers did a pat down search of F.D. and reported that he felt an object under F.D.’s jacket which he believed to be a gun. At that point, F.D. ran from the police. He was pursued and apprehended. The gun was not on him, but was found in a field near where he had been seen running.

Material Change in Circumstances

[8] The defence raises three circumstances as constituting a material change. First, the proposed plan of release is different. Previously, the plan was for a house arrest at the Toronto home of F.D.’s parents (where he had previously resided), supervised by four sureties, being his parents, one of his brothers, and his fiancée, Ms. Petrucci. The current plan is for F.D. to reside in Ms. Petrucci’s home in Bolton, where he would be under the supervision of his two sureties (his fiancée and her mother), as well as his fiancée’s father, who also lives in the house.

[9] Second, there has been a significant delay in F.D.’s trial. The trial started in the Ontario Court of Justice on February 3, 2020, but was adjourned due to a death in his lawyer’s family. Four new dates were set in March, all of which were cancelled due to the COVID-19 pandemic. At that time, six days were reserved to continue the trial in May, and two days in October, 2020. It is now clear that the May dates are lost as well. Given the backlog that will exist once courts return to “normal” functioning, it is easily possible that F.D.’s trial will not be completed until sometime in 2021.

[10] Third, the effects of COVID-19 on the inmate population are said to constitute a material change, even though F.D. does not have any personal health issues that make him more susceptible to a more severe outcome if he were to become infected.

[11] The Crown did not challenge that there has been a material change in circumstances since the time of the original detention order, warranting a hearing de novo. However, the Crown did not accept that the proposed plan is significantly different from the previous plan, nor that the COVID-19 pandemic constituted a material change, in the absence of evidence that the accused does not have any heightened risk factors.

[12] Clearly, the significant delay in the trial is a material change. I also agree with the defence submission that the new plan for supervision upon release is a material change. Finally, I also agree with the defence position that the impact of the COVID-19 pandemic on the inmate population can constitute a material change, even where the particular individual is without risk factors that make it more likely for him to either contract the infection or suffer a worse than typical outcome if he did contract it.

The Release Plan

[13] I agree entirely with the reasoning of the Justice of the Peace on the original bail application that the proposed plan of release at that time was not sufficiently strong to overcome serious concerns on the secondary ground. Originally, the accused was to go back to living with his parents at the same address as before, supervised by his parents and his brother, with his fiancée added as a surety. At the time of the charges now before the court, the accused was clearly in breach of the terms of his conditional sentence entered into 33 days earlier. His mere presence at the nightclub was a breach of the house arrest term. At that time, his parents knew he was not in their home, and yet they did not alert the police. Thus, the accused paid no attention to his parents, and his parents were prepared to turn a blind eye to his failure to abide by the terms of his sentence. The proposal that the accused return to his parents’ home while on bail could give no level of comfort that he would not offend again. Further, he had two prior offences that were weapons related and two prohibition orders. There was a real concern that if he did not abide by the terms of his bail, and did reoffend, this could be highly dangerous to the safety of the public.

[14] I see the new plan for release as fundamentally different. F.D.’s fiancée, Stephanie Petrucci, appears to me to be a person of good moral fibre. She persuaded me that she is very concerned about F.D.’s breaches in the past and is genuinely opposed to a lifestyle that involves firearms. However, the strength of the new plan is the supervision by Stephanie’s parents. Mr. Petrucci is a Chartered Accountant. I asked that he participate in the conference call because I wanted to be sure he was supportive of the overall plan and confident as to its success. I found him to be an impressive individual and am reassured that he completely understands F.D.’s background and criminal record, while at the same time believing that in a completely different environment and with constant supervision, he will comply with the terms of his bail. I am fully confident that Mr. Petrucci will not tolerate any kind of breach. Likewise, Mrs. Petrucci is an outstanding surety. She is now retired, but previously worked for many years as a civil servant at the managerial level. Both Mr. and Mrs. Petrucci have known F.D. since their daughter began dating him about seven years ago. They have found him to be respectful and kind in all of their dealings with him and believe that a second chance in a new environment will give him the chance to turn his life around. However, they strike me as realists. If F.D. does not respect the sacrifices they are making to give him this chance, and if he fails to follow the rules, I know both of them will turn him in. They were absolutely clear about that and they told me that they have made this clear to their daughter and to F.D. himself. Initially, I was concerned about the low level of financial commitment Mr. and Mrs. Petrucci were prepared to offer ($65,000) as security, given their relatively high net worth (their house alone is worth about $1 million and is mortgage free). However, once I raised this issue, they said they would accept any figure I set, including a situation where they could lose the entire value of their home. They are convinced that it will not be a problem, because they are convinced it simply will not happen. The entire plan is backed up with high-level digital electronic monitoring with G.P.S., paid for by Mr. and Mrs. Petrucci. I realize that electronic monitoring was part of the original plan as well, and I also recognize that electronic monitoring cannot prevent breaches; it merely detects breaches immediately. However, there is a deterrent effect because the accused knows any breach will not go undetected, and it is a valuable addition where the primary level of supervision is a strong one. Under the proposed plan, F.D. will be under strict house arrest, with a surety present in the home at all times, and with his ability to go outside the house being limited to the backyard, or for medical emergencies, or visits to his lawyer, bail supervisor, or the like, all in the presence of a surety. This is an extremely tight plan, supervised by people I feel I can trust absolutely and who will put their obligations to the court ahead of feeling sorry for the accused. It is particularly important that this home is in a quiet neighbourhood far from the circles in which F.D. travelled previously and without any ability for him to simply step out and find his previous associates. In my view, this is a plan that will likely be successful in preventing any breaches by F.D. and provides adequate protection for the public.

[15] I therefore find that F.D. has satisfied his onus on the secondary ground.

The Tertiary Ground and the Impact of COVID-19

[16] There are clearly some issues on the tertiary ground as well, particularly given the prior breaches of other orders on F.D.’s record and the fact that he appears to have a custom of walking around in our community with a firearm. These are serious charges, with the aggravating factors of being in breach of a conditional sentence and two prohibition orders at the time. If convicted, he would likely receive a sentence of five to eight years, far more than he has ever been subjected to before, and in a federal penitentiary. That said, there are weaknesses in the Crown’s case and a viable Charter challenge to the validity of the search. That is not to say it is a weak case, but by the same token, it is not an overwhelmingly strong case for the Crown.

[17] I fully understand why the Justice of the Peace detained F.D. on both the secondary and tertiary ground. I would have made the same decision if faced with that supervision plan and the society in which we lived in 2019. However, this is where the impact of the COVID-19 impact can make a difference to whether an accused is detained or released. The question is whether refusing bail is necessary in order to maintain public confidence in the administration of justice, when viewed from the perspective of a reasonable person. In this context, the “reasonable person” would be someone familiar with all of the surrounding circumstances, as well as conversant with and accepting of the philosophy of our criminal justice system, the constitutional rights of persons accused of a crime, and the presumption of innocence. [1] In today’s environment, that concept also includes the reality of the COVID-19 pandemic and its impact on prison populations.

[18] The reality of COVID-19 is that it is more easily transmitted where people are closely confined and unable to maintain social distancing. Notwithstanding the commendable efforts of the government agencies involved, the grim reality is that social distancing is simply not fully achievable in a jail. Further, a COVID-19 outbreak would be more difficult to control in the prison environment. Also, the larger the number of people within the prison at the time of any outbreak, the more difficult it will be to control the spread. Overcrowding in prisons must therefore be avoided, where possible and appropriate, for the protection of the inmates, as well as the staff who work there. Preventing outbreaks in prisons, and making any infections that do occur easier to control, not only protects the population within prisons, but guards against the inevitable strain on community resources that such an outbreak would create. [2]

[19] Therefore, in considering whether releasing an accused person on bail would undermine confidence in the justice system, the reasonable person would take into account the dangers inherent in keeping too many people in jail, as balanced against the dangers of releasing that particular individual. In the absence of a dependable release plan and where there is a significant danger that the accused person will reoffend in a violent way if released, the impact of COVID-19 considerations will likely be minimal. [3] On the other hand, with a good plan of supervision and some level of confidence that the accused will comply with the strict terms of his bail, the dangers of the COVID-19 pandemic to the accused, to other inmates, to the prison staff, and to the general public might well tip the balance towards release. [4]

Conclusion

[20] The release plan proposed in this case is a strong one. It is very strict, with excellent sureties, who I believe will ensure F.D. complies with it. This supervision is backed up by electronic monitoring and by the presence of Mr. Petrucci, who I also trust to provide additional support and supervision even though he is not a surety. F.D. does not have any personal factors that make him more vulnerable to contracting COVID-19 than anyone else in the prison population, nor does he have any of the risk factors associated with extreme reactions to the virus in the general population. The absence of such factors does not make COVID-19 irrelevant to the issues before me. If they were present, the scales would tip even more strongly towards release. However, the fact remains that F.D. is at a greater risk in the prison population than he would be in the Petrucci home in Bolton. Removing him from Toronto South provides better protection to him, but more importantly better protects those who must be in the institution as well as society as a whole. When these factors are considered together, I find that F.D. has met his onus on the tertiary ground. Releasing him in these circumstances would not cause a reasonable, fully informed person to lose faith in the administration of justice.

MOLLOY J. Date: May 15, 2020