Court File and Parties
COURT FILE NO.: 20-32 DATE: 20200512 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Kimber-Lee Long Defendant
COUNSEL: L. Goldstein, counsel for the Defence D. Isbester, Counsel for the Provincial Crown A. McCallister, Counsel for the Federal Crown
HEARD: May 12, 2020
Amended reasons for Decision Lacelle, J.
Introduction
[1] This bail review proceeded before me by way of teleconference. At the conclusion of the hearing, I released the accused, Ms. Long, on a recognizance with a surety. These are my reasons for that decision.
Background
[2] Ms. Long is charged with some very serious offences. They include robbery, aggravated assault, forcible confinement, and various weapons offences. Ms. Long is also charged with serious drug offences. Drugs and related paraphernalia were discovered in her belongings shortly after she was alleged to have committed the first set of offences.
[3] The Crown theory is that in early October of 2019, the accused participated in a planned robbery of an individual for cash he had just won at a local casino. The evidence presented on the hearing suggests that the Crown’s theory will be that the accused acted to distract the victim while steps were taken to permit two men to enter his home. The allegation is that when the victim returned to his home, in the company of the accused, two men armed with guns and tasers were in his home. In the presence of the accused, the victim’s scrotum was tasered to convince him to divulge where his money was located.
[4] The accused was on probation at the time of these events. The probation order was imposed as part of the sentence for robbery and other offences the accused committed in 2017 for which she was incarcerated for 8 months.
[5] The accused has been in custody since October 9, 2019. She was denied bail at a hearing held that same month. She now brings a bail review seeking her release on a recognizance with a surety.
[6] The Crowns (provincial and federal) oppose the accused’s release. They argue that there has been no material change in circumstances permitting this court to reconsider the accused’s release. They also argue that her plan is insufficient to discharge her onus in demonstrating that her release is not required on either the secondary or tertiary grounds for detention.
The Issues on the Application
[7] The issues before me are twofold: 1) has there been a material change in circumstances permitting me to reconsider the accused’s plan for release; and if so, 2) is the accused’s plan for her release sufficient to satisfy her onus in showing that her detention is not necessary on either the secondary or tertiary grounds.
Issue #1: Has there been a material change in circumstances?
The positions of the parties
[8] The defence argues that a material change in circumstances is made out for various reasons, including the reality of the COVID-19 pandemic and its impact on persons in custodial facilities. The defence also relies on the new bail plan, which it asserts involves a surety of a substantially different quality than the surety presented at the initial bail hearing. Counsel also argues that the accused is not the same person she was at that bail hearing – in the months she has been incarcerated, she has completed 11 credits towards her high school diploma, she has obtained a very positive account of her behaviour in custody from a social worker at the Ottawa Carleton Detention Centre (“OCDC”), and she has completed every program available to her in that facility.
[9] Both the federal and provincial Crowns take the position that none of these circumstances amounts to a material change in circumstances. They argue that there is no specific evidence of the risk faced by the accused if she continues to be incarcerated at OCDC and point to evidence that steps are being taken to follow COVID-19 precautions in Ontario’s jails. The Crown maintains that the new bail plan amounts to nothing more than a “shuffling of the deck” of proposed sureties, and in any case, this plan might have been advanced by the accused at her initial bail hearing. The Crown argues that the accused is no differently placed than any other person in custody in obtaining a trial date when court operations resume and her case will be given priority if she remains in-custody.
Analysis
[10] The review of the bail order sought here is pursuant to s. 520 of the Criminal Code . This provision was considered by the Supreme Court in R. v. St-Cloud, 2015 SCC 27.
[11] St-Cloud makes clear that this court does not have an open-ended power to review the initial detention order made by the justice of the peace. I may only intervene in specific circumstances, such as if the justice has erred in law, or if decision was clearly inappropriate (e.g. if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another) (see paras. 120-121).
[12] A judge may also re-consider whether the accused should be detained if new evidence is submitted and that evidence shows a material and relevant change in the circumstances of the case. Importantly, in St-Cloud, the court directed that the approach to what is “new evidence” and the application of the Palmer test should be flexible in the context of a bail review: see paras 127, 129, and 131-133.
[13] St-Cloud confirms that the “due diligence” criterion from Palmer should not be applied as strictly in criminal matters as in civil cases and that “the weight to be given to this criterion depends on the strength of the other criteria or, in other words, on the totality of the circumstances”: at para. 131. Accordingly, “a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial hearing but was not tendered for some reason that is legitimate and reasonable. This is how the “due diligence” criterion must be understood in the context of the review provided for in ss. 520 and 521 [of the Code]. The nature of the release system and the risks associated with it demand no less”: at para. 132.
[14] Ultimately, the court in St-Cloud makes clear that the Palmer criteria “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”: St-Cloud at para. 138.
[15] Applying those principles, I find that the new evidence presented during this bail review meets the Palmer test.
[16] In arriving at that conclusion, I consider that since the initial bail hearing, the COVID-19 pandemic has developed. Quite apart from the potential health implications of being in a custodial institution during the pandemic, this circumstance has implications for the accused in this case because the suspension of certain court proceedings means that she is unable to set a trial date. The accused has now spent over 7 months in custody. The earliest opportunity to set a trial date is July. Given the uncertainty surrounding what public health precautions will be necessary in the near future, and where this case might fall in the queue for priority upon the resumption of trial proceedings, it is far from clear when a trial might proceed. None of this was known at the time of the initial hearing.
[17] I note that a number of cases have recognized the pandemic as sufficient to give rise to a material change in circumstances for the purposes of a bail review: see for instance, R. v. J.S., 2020 ONSC 1710 and R. v. A.F., 2020 ONSC 2880, amongst others. I agree with that conclusion and find that it permits me to consider the bail plan presented on this hearing.
[18] To my knowledge, there is no appellate authority from the Court of Appeal for Ontario which addresses whether the COVID-19 pandemic constitutes a “material change in circumstances” within the meaning of St-Cloud even for those accused persons who might not fall into a group known to be at high risk for serious complications from the virus. However, some appellate cases to date have addressed circumstances related to the pandemic in the context of applications for bail pending appeal. Some of the same considerations apply in those applications, although the accused need not demonstrate a “material change in circumstances” given the nature of the application.
[19] It is instructive, for instance, that in R. v. Kazman, 2020 ONCA 251 at paras. 17-20, the court recognized that an outbreak of COVID-19 in the prison setting would also pose a risk to the public at large. This risk to the public at large was considered by the court in arriving at the conclusion that in certain circumstances, release of the accused would not undermine a reasonable and informed person’s confidence in the administration of justice. However, Kazman also confirms that the circumstances arising as a result of COVID-19 do not mean that bail will be granted to all who seek it. Rather, as Kazman and other appellate cases make clear, it is a relevant factor to be considered. The emerging case law shows that the weight to be given that factor will depend upon the circumstances of the case.
[20] If the pandemic is a relevant consideration in an application by an accused for bail pending appeal for reasons unrelated to the accused’s personal risk vis-à-vis the virus, I fail to see why it would not also be a relevant consideration on a bail review. This is particularly so since an accused seeking bail pending his or her appeal has been found guilty after a trial, whereas in the context of a detention review, the accused has not had a trial and retains the presumption of innocence. If the implications of the pandemic were not considered at the time of the initial hearing, it seems to me that this constitutes a “material change in circumstances” which permits re-consideration of whether the accused should be detained.
[21] I have also considered, however, that in this application, there is new evidence relating to the accused’s progress during her 7 months in custody, as well as a new surety whose relationship with the accused and ability to supervise her is an improvement over the bail plan presented at the initial hearing. Some evidence was adduced during the hearing before me to explain why this surety was not presented at the initial hearing (this goes to the “due diligence criterion”), although cross-examination on this point was curtailed where it appeared it would disclose discussions with counsel. The gist of the evidence, however, is that the accused’s phone had been seized upon her arrest and messages from the surety did not reach her while she was incarcerated. As I understand the evidence of Ms. F., she was concerned about the accused and made efforts to be in touch with her which went unanswered.
[22] I apply the due diligence criterion flexibly. I accept that organizing a plan for release in the early days following an arrest may present various logistical difficulties. As I indicated during the hearing, I am not persuaded that additional evidence about why the surety was not presented at the initial bail hearing or at any other time before now is of assistance in deciding the central issues in this case. This is not a case where it has been in the interests of the accused “to drag out the application for release”, or where the circumstances give rise to any concern that the accused is using the review process “to engage in judge shopping”: St-Cloud at para. 134. I am persuaded that it would be unfair to say that because the evidence was not presented earlier the accused should be disentitled from presenting it now: St-Cloud at para. 133.
[23] I find that the circumstances I have outlined above are relevant and could have been expected to affect the result of the accused’s initial detention hearing. Accordingly, I find that this court has jurisdiction to consider the analysis under s. 515 of the Code as if it were the initial decision maker.
Issue #2: Has the accused discharged her onus and demonstrated that her detention is not required under either the secondary or tertiary grounds?
[24] The accused is 25 years old. She has a criminal record spanning the years 2014 to 2017 which includes entries for offences of violence and many breaches of court orders. Her last convictions were in 2017. She was on probation for those offences at the time of the offences here which were allegedly committed in early October of 2019. At that point, the evidence at the initial bail hearing suggests the accused would have been in the community for about 18 months after completing the custodial portion of her prior sentence for robbery.
[25] The accused testified during the hearing. She testified that she has been a victim of human trafficking. She spent her youth in group homes. She has a difficult relationship with her mother, who has substance abuse issues. She has nothing in the way of family support. She herself has had substance abuse issues which she described as primarily involving the abuse of prescription drugs. She testified that while she took responsibility for it, her prior breaching behaviour related to some of these circumstances.
[26] The accused’s proposed surety, Ms. F., is her closest friend. They met when they were working in a massage parlor. Both were the victims of human trafficking at the time. Ms. F. has managed to remove herself from that lifestyle and has continued her friendship with the accused.
[27] The accused views Ms. F. as her primary support at this point. They have been close for the past two years. Ms. F. testified that they have been in daily contact while the accused has been in custody.
[28] The evidence before me includes documents that show that the accused has taken advantage of opportunities available to her while in custody. She has completed 11 credits towards her high school diploma. She has completed other coursework available to her. She has filed a letter from a social worker at OCDC which describes her as kind, genuine, and open-minded. She is reportedly well liked amongst staff and inmates, consistently positive in her behaviour, and open to receiving supportive services. The social worker concludes in her letter that the accused “has shown significant improvement in her overall well-being and her insight since being incarcerated”, and says she appears to be “motivated to move forward with her life as reflected by her involvement in programs [at] OCDC as well as her consistent positive attitude”.
[29] The proposed surety, Ms. F. also testified before me. I was impressed by her. As counsel acknowledged, she is clearly an intelligent person. She also struck me as focused and insightful. She knew a great deal about the accused and appeared to fully appreciate the nature of the commitment she was making to the court.
[30] I accept that Ms. F. has been a consistent and positive support for the accused for some time. Ms. F. believes that she may be in a position to assist the accused with changing her life because she has lived through similar circumstances and has managed to turn her life around. Ms. F. now has a good job and has been able to put aside savings that permit her to post a bond of up to $4,000. She does not use drugs and rarely drinks. She has no criminal record. She has a college degree. She is pursuing therapy to resolve her own issues and is insightful about the supports that the accused may require to move forward. She lives alone at this time. She is co-operating in the case for the prosecution involving her former abuser. She testified, and I believe her, that her life is on track and she will not tolerate the accused breaching any conditions imposed by the court upon her release.
[31] Ms. K. and the accused also testified about the plan for the accused to pursue employment and counselling opportunities should she be released. Given the letter from the social worker at OCDC, I accept this as a sincere plan on the part of the accused. She is not just saying she wants to improve her circumstances, she has taken concrete actions towards that goal over a period of months. Further, I am inclined to agree with counsel for the defence that Ms. K. is well-suited to assist the accused in pursuing some of the supports she will need to make lasting changes. This enhances my confidence in the release plan.
[32] In the result, I am satisfied that the proposed plan of release meets the accused’s onus on both the secondary and tertiary grounds. The plan involves house arrest while living with Ms. F, and other conditions which address her risk for offending behaviour. Ms. F. is now working from home as a result of the pandemic, a situation which will continue until at least July. Thereafter, she will be permitted to work at least 3 days a week from home. I am satisfied that this will permit meaningful supervision of the accused, to the point that there is not a substantial likelihood that the accused will commit further offences or interfere with the administration of justice if she is released.
[33] On the latter issue, I note that the prospect that the accused will interfere with the administration of justice does not appear to be a live concern – there is no suggestion that the accused has been in contact with either the victim of the offences here, or the co-accused, since her arrest. The release plan also has some advantage in that the accused will be residing in a different community from where her previous offending has occurred, and where the alleged victim in this matter resides.
[34] The federal Crown points to the discrepancy in the evidence between the accused and Ms. K. about the time frame of the accused’s last drug use. I have considered that discrepancy in arriving at my decision. It may be that the accused has minimized her drug use. It is difficult to say on this record. I am satisfied, however, that Ms. K. is alive to the issue and is not naïve about who she is supervising. Given the house arrest component of the release and Ms. K.’s ability to provide meaningful supervision even after any loosening of pandemic restrictions, I am satisfied that any concern about the impact of resumed drug use by the accused is sufficiently mitigated by the proposed plan of release.
[35] As far as the tertiary grounds are concerned, this is a case involving firearms and significant violence that appears to have been planned and deliberated. These types of offences are extremely serious and of utmost concern to members of the public, particularly since firearms are alleged to have been involved. The accused also faces serious allegations of drug trafficking. The strength of the Crown case on the latter charges appears particularly strong at this juncture. If convicted of all these offences, even on the basis that she was a party to the first set of offences and not a principal, the Crown is quite correct that a penitentiary sentence is possible.
[36] Nevertheless, I am satisfied that the accused’s detention is not necessary to maintain confidence in the administration of justice. I arrive at that conclusion having regard to the strength of the release plan, the steps the accused has taken while in custody to be a productive member of society, and the impact of the COVID-19 pandemic, including the fact that it is very difficult to predict when a trial may be scheduled in this matter: see R. v. T.L., 2020 ONSC 1885 at para. 34.
[37] The conditions for the release were reviewed with counsel at the conclusion of the hearing. As discussed then, I would permit the accused an exception to the house arrest condition to allow her to obtain employment and attend counselling if I had more specific evidence about what was being proposed and what was available during the pandemic. Should those opportunities become available, both Crowns have indicated their willingness to consider consenting to a variation of the recognizance upon receiving further information from defence counsel.
[38] It may be that the accused is not able to find employment but can take advantage of opportunities to further her education. With a demonstrated period of compliance with the terms imposed following the hearing, I expect that the Crowns would be similarly open to consenting to a variation to the recognizance which would move away from complete house arrest, particularly if it takes some time to schedule a trial. In the event counsel cannot agree on terms for any proposed variation, an application to vary may be brought before me.
[39] Once again, I thank counsel for their focused presentation of the issues. Their adherence to the time limit for the hearing is appreciated and ensures that access to limited teleconference resources remains available across the region.
The Honourable Justice Laurie Lacelle Date: May 12, 2020
COURT FILE NO.: 20-32 DATE: 20200512 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Kimber-Lee Long amended REASONS For decision The Honourable Justice Laurie Lacelle
Released: May 12, 2020