COURT FILE NO.: CR/20/00000158/0000BR DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

• and - D.P. Applicant

S. Arnold, for the Respondent Crown B. Hundal, for the Applicant

HEARD: May 14, 2020 by Teleconference

PUBLICATION BAN pursuant to ss. 517(1) and 520(9) and 486.4 of the Criminal Code. [FOR CLARITY — COUNSEL ARE PERMITTED TO CIRCULATE decision 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 COMPLAINANTs OR THEIR PERSONAL CIRCUMSTANCES.]

Croll J.

REASONS FOR DECISION ON APPLICATION FOR REVIEW OF detention ORDER

Introduction

[1] The Applicant, D.P., brings an application to vacate the detention order made by Pringle J. of the Ontario Court of Justice on December 17, 2019. The application was heard by teleconference with consent of the parties. The Registrar arranged the teleconference and a reporter was present with the Registrar in the courtroom to ensure that an audio recording of the hearing was maintained. Crown counsel, defence counsel and I dialed in remotely. The two proposed sureties were available in a boardroom at the office of defence counsel. With the consent of defence counsel, the Applicant, who is in custody at the Toronto South Detention Centre (“Toronto South”), was not in attendance on the teleconference. The Guajarati interpreter was also on the teleconference initially, although her services were not needed as the Crown did not examine either of the proposed sureties.

Background

[2] The Applicant was first charged with sexual assault; with threats and with intent to obtain an act of sexual intercourse, induce the Complainant to engage in an act of sexual intercourse; and forcible confinement.

[3] The allegations that gave rise to those charges are summarized below.

[4] On the evening of October 31, 2019 and into the early hours of November 1, 2019, the Complainant, age 23, was heavily intoxicated after leaving a club in downtown Toronto. She found herself in the front passenger seat of an unknown vehicle. The Applicant was the driver of the car and the Complainant’s purse and cell phone were in his possession. The Applicant drove to a dark parking lot and directed the Complainant to get into the back seat. The Applicant had taken off his pants and underwear. He grabbed the Complainant, called her derogatory names, and forced his penis into her mouth. The Applicant then ripped the Complainant’s dress, began kissing and licking her, and penetrated her vagina, without a condom. It is alleged that as the assault was occurring, the Complainant was continuously saying no and telling the Applicant to stop. The Applicant also attempted to penetrate the Complainant’s anus with his fingers. The Complainant begged him to stop. The assault went on for some 20 minutes.

[5] After the assault, the Applicant told the Complainant to get dressed and return to the front seat. He drove her to a friend’s home, and as she left the car, she used her cell phone to take a photo of the car’s licence plate.

[6] The Complainant disclosed what had occurred to her friend and attended at the hospital on November 1, 2019. She was examined by a sex assault nurse and a sex assault kit was completed and released to the police. The Complainant’s injuries included bruising to her right shoulder, and to her thighs and knees. On November 2, 2019, the Complainant gave a statement to the police and provided them with the photograph of the licence plate. The licence was registered to the Applicant’s home. The police obtained a search warrant, seized the Applicant’s car and arrested the Applicant. The Applicant’s phone contained a video of some of his attack on the Complainant.

[7] The Applicant was released on consent on November 5, 2019 by the Justice of the Peace. His father, V.P., was named his surety, in the amount of $5,000, no deposit. The Applicant was subject to a curfew, and among other things, was to have no contact with the Complainant and three others.

Earlier Offences

[8] Prior to the October 31/November 1 sexual assault, there were three outstanding sexual assault cold cases in Ontario. These prior assaults occurred in July 2015, January 2017 and July 2019. In each of the three cases, DNA samples were taken. While the DNA samples indicated that the same person had committed each of the three assaults, the police did not know the identity of this person.

[9] On December 11, 2019, a profile generated from the November 1, 2019 sex assault kit was uploaded to the national data bank. The DNA that was found on the Complainant in the October 31/November 1, 2019 attack matched the DNA found on the Complainants in the attacks that occurred in 2015, 2017 and the summer of 2019.

[10] The Applicant was arrested at his home on December 12, 2019.

July 2015

[11] The first of the prior assaults occurred on July 28, 2015 in the Dufferin Street and Rogers Road area of Toronto. The Complainant, age 23, got off a bus at around 1 o’clock in the morning. It is alleged that the Applicant ran up to her from behind, put his hand over her mouth, grabbed a handful of her hair, and dragged her backwards toward a nearby lane. It is further alleged that the Applicant told the Complainant not to scream, because he had a knife, as he dragged her about 50 feet to a secluded area.

[12] Once in the secluded area, it is alleged that the Applicant pushed the Complainant up against a garage door and a parked van, and proceeded to grind his groin against her buttocks. He again told her that he had a knife. He took her cell phone and put it in his pocket and continued to grind against her with his pelvis and kiss her neck.

[13] It is further alleged that the Applicant forced the Complainant to the ground on to her hands and knees, pulled her underwear aside and digitally penetrated her vagina while he masturbated himself with his other hand.

[14] After a short period of time, the Applicant apparently ejaculated onto the Complainant’s leg and foot area. The Applicant then told the Complainant to walk further down the laneway and not to turn around or he would pull his knife.

[15] The Complainant sustained several scratches to her right shoulder, to her back and to her knees. She went to the hospital that evening where a sex assault kit was completed, and she provided a videotaped statement to the police. Among the various items collected in the investigation was a sample of DNA taken from the Complainant. It is that DNA that ultimately came back as a match to the DNA of the Applicant taken from the October 31/November 1 assault.

January 2017

[16] In the early morning hours of January 1, 2017, the Complainant, age 17, was walking home in a residential area in Collingwood, Ontario after a New Year’s Eve party. It is alleged that the Applicant grabbed her, placed his left hand over her mouth, and held a cold, heavy object to her head. The Complainant heard a click, which led her to believe that the object was a gun being cocked. The Complainant screamed loudly, and was repeatedly told by the Applicant to be quiet and to shut up.

[17] It is alleged that the Applicant told the Complainant that he had a gun and a knife, and that he would slit her throat and kill her. The Applicant took the Complainant’s phone, kicked the back of her legs, while holding her from behind with his arm wrapped around her, and continued to hold the item to her head, as he pushed her about 100 meters to a nearby parking lot. The Applicant then opened the unlocked rear driver side door of a car and pushed the Complainant into the back seat by her head and neck area. The Applicant also entered the car, and the Complainant heard another click, a sound that she again associated with the cocking of a gun.

[18] According to the Complainant, the Applicant told her to take her clothes off and he took off his shoes and pants. The Complainant initially refused to undress, and the Applicant said that he would kill her if she did not do so. The Applicant told the Complainant to suck his penis, and she refused. He then punched her three times on her face, after which time the Complainant complied and carried out fellatio on the Applicant.

[19] It is alleged that the Applicant forcefully removed the Complainant’s pants, forced cunnilingus on her and penetrated her vagina with his fingers. The Applicant began to roughly kiss the Complainant, and when she tried to get him to stop, he apparently told her that if she did not do what he wanted, it was “just one shot”. As the Complainant continued to refuse the Applicant’s demands, the Applicant began to strangle her, wrapping both his hands around her throat until the Complainant started convulsing. The Complainant believed that she passed out.

[20] The Applicant then climbed on top of the Complainant and penetrated her vagina with his penis for two to three minutes.

[21] Ultimately, the Applicant and Complainant got dressed. The Applicant drove a short distance and told the Complainant to get out of the car. She left, and the Applicant threw her cell phone into a nearby snowbank. The Complainant contacted the police who came to the area and searched for the Applicant, who, by that point, was gone.

[22] The Complainant attended at a nearby hospital where a sex assault kit was done, and evidence was collected. The DNA that was found on the Complainant ultimately came back as a match to the DNA of the Applicant taken from the October 31/November 1 assault.

July 2019

[23] The third prior attack occurred on July 15, 2019, just a few months before the 2019 Hallowe’en attack that gave rise to the DNA matches. At about 10:30 p.m., the Complainant, age 28, was in the area of Lakeshore Boulevard West and Coronation Park in Toronto. She had been out on a boat with some friends for the evening and was now trying to get home. She called an Uber, and a short time later the Applicant pulled up in a car. It is alleged that he claimed to be the ordered Uber driver and the Complainant entered the car. The Complainant was apparently focused on her phone and did not realize that the Applicant had driven to and stopped in a small parking lot.

[24] It is alleged that the Applicant got into the rear passenger seat, grabbed the Complainant by the throat and told her that if she said anything, he would kill her. He punched her in the face, pushed her down into the back seat, and pulled down her top, exposing her breast. The Applicant then pulled the Complainant’s track pant bottoms down and her bathing suit aside, exposing her vagina. He removed her tampon.

[25] The Complainant resisted the Applicant, pushing him with her hand. He then grabbed her around the throat with both of his hands. Apparently, the Applicant grabbed the Complainant hard enough that she believed he was trying to choke her into unconsciousness.

[26] As the Complainant continued to fight the Applicant, she dug her fingernail deep into his eye. The Applicant screamed and momentarily released the Complainant, which allowed her to escape. She ran barefoot along the road and hid in a nearby bush. After fleeing the area, the Complainant made her way to Eglington Avenue, where a passing TTC bus driver saw her and stopped to help her. The TTC driver contacted police.

[27] When the Complainant fled from the car, she left her purse in the car, which held her cell phone, her credit cards and car keys. She had enabled location services to share her location with her mother, and as a result, her mother was able to access her phone. After a search, the Complainant’s cell phone was found in a wooded area, but her purse and house keys were not located.

[28] The Complainant went to the hospital where a sex assault kit was done, and she provided a statement to the police. The scrapings from the fingernails on her right hand generated a male DNA profile. The DNA that was found on the Complainant ultimately came back as a match to the DNA of the Applicant taken from the October 31/November 1 assault.

Bail Review

[29] There were two proposed sureties before the Ontario Court of Justice on December 17, 2019, namely the Applicant’s parents, V.P. and J.P., in the joint amount of $20,000, no deposit. The plan contemplated 24-hour supervision. The Justice heard from the parents at the hearing, and detained the Applicant on both the secondary and tertiary grounds.

[30] The plan today proposes the same two sureties, the Applicant’s parents, coupled with electronic monitoring, specifically a GPS tracking ankle bracelet provided by Recovery Science Corporation. The plan today proposes a strict house arrest, such that the Applicant cannot leave the home except to be at court, or in the direct presence of counsel, or for medical emergencies. The Applicant’s father and uncle are prepared to pledge $100,000 to secure his release.

[31] The Applicant submits that the new strengthened plan, together with the COVID-19 pandemic, constitute a change of circumstances that allow for review of his detention order.

[32] The Applicant further submits that the Justice erred in law by failing to consider the ladder principle: R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509.

[33] The Crown position is that the changes to the proposed plan of release do not amount to a material change. However, the Crown acknowledges that the significant current risk posed by the coronavirus, which is detailed in the Applicant’s factum, is a material change. Consequently, bail release should be revisited de novo: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 122-139.

[34] Given the Crown’s position on material change, the defence did not pursue its submission that the Justice had committed an error in law.

[35] Accordingly, I conduct this review of the secondary and tertiary grounds as if I were the initial decision-maker because of the impact of the COVID-19 virus, particularly on those in the jail setting.

[36] This is a reverse onus situation. The onus is on the Applicant to show that if released, he would not be a risk to the public, including by reoffending or interfering with the administration of justice, and that in all the circumstances, detention is not necessary to maintain public confidence in the administration of justice.

Secondary Ground

[37] Section 515(10)(b) of the Criminal Code requires consideration of whether detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[38] The Applicant is 34 years-old. He has no prior criminal record. He has completed the following sessions while in custody: Recognizing Healthy Relationships, Problem Solving, Chessworld – “The Right Move” (5 weeks x 1/per week): Respect, Accountability, Empathy, Problem Solving, Integrity, Creative Thinking.

[39] The plan today is substantially the same as the plan that was before the Justice, except for the addition of electronic monitoring and an increased surety amount.

[40] The transcript of the hearing before the Justice indicates that the mother, by her own account, expressed concern about what the Applicant might do if released. In addition, the father was apparently coaching the mother during her testimony such that defence counsel had to ask him to step outside the courtroom. After reviewing the evidence, the Justice considered that the Applicant had a secret life kept concealed from his parents and determined that they could not adequately supervise the Applicant, in the face of the repeated charges going back so many years.

[41] I have considered the evidence afresh and share the view of the Justice. As submitted by the Crown, if the mother has concerns about her ability to supervise the Applicant, the court too should have concerns. While the defence attributes the mother’s concerns to her being overwhelmed upon hearing the allegations and seeing her son locked up, I do not find that her maternal shock skewed her evidence. Rather, upon learning of the horrible allegations, the mother gave candid and unprompted answers.

[42] I am also not persuaded by the defence submission that the parents are able to effectively supervise the Applicant because they did so from November 5 to December 11, 2019 without incident. During that period, the father was the named surety, but the Applicant was home with his mother during the day while the father worked. While there were no issues, this was only a five-week period, and in my view, too short a period from which to draw any inferences that the parents would be ‘effective jailers’. Further, when the police arrived on December 12, 2019, the Applicant’s parents thought that he was in his room in the basement. However, when the police went downstairs to arrest the Applicant, the door was locked. There was apparently no answer to their knock and the police ultimately had to kick in the door. The Applicant was not there, but was found hiding in a crawl space, trying to conceal himself with something over his head. This occurrence undermines the defence submission that the five-week prior period of release has any predictive value for the future.

[43] The defence position is that the electronic monitoring provided by Recovery Science Corporation bolsters the proposed plan and addresses any concerns about the parents’ ability to supervise the Applicant. However, there are limitations to the efficacy of electronic monitoring. Electronic monitoring is a risk management tool. Paragraph 9 of the Recovery Science Overview of Criminal Programs states as follows:

In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response – it cannot prevent an accused from fleeing, violating terms or committing offences, nor can it guarantee police intervention in a breach or offence in progress.

See also; R. v. Jesso, 2020 ONCA 280, at paras. 24-25; and R. v. Stojanovski, 2020 ONCA 285, at para 24.

[44] Stated differently, electronic monitoring only reveals where a person is, not what he is doing: R. v. Fleming, [2015] O.J. No. 4380 (S.C.), at para. 18.

[45] I recognize the impact of the COVID-19 crisis on detention centres, like the Toronto South, where the Applicant is housed. While the evidence indicates that there are currently five cases of COVID-19 at the Toronto South, there is no evidence to date of transmission within the jail: see the Ministry of the Solicitor General RESPONSE TO COVID-19 INFORMATION NOTE, dated May 12, 2020 and TSDC Specific Letter, dated May 13, 2020. The Applicant does not suffer from any unique underlying health conditions.

[46] I also recognize that strict house arrest together with electronic monitoring is often adequate to address secondary ground concerns. But as defence counsel acknowledged, each case must be decided on its own facts. In this case, the Applicant knew none of the women attacked and none of the women knew each other. These were random, violent sexual assaults. The DNA evidence suggests a very dangerous serial offender. The evidence overall suggests that the parents really do not know their son. Given the apparent impulsive and unpredictable nature of the frightening allegations, I have no confidence that the Applicant would abide by the terms of the house arrest or that his parents could effectively enforce those terms. In this case, the addition of electronic monitoring does not insert the necessary strength into the plan. Electronic monitoring is not simply a perfunctory ‘add on’ when the sureties are not suitable.

[47] The COVID-19 concerns cannot displace the public safety concern that animates the secondary ground. The Applicant has not met his onus on the secondary ground.

Tertiary Ground

[48] In the interest of completeness, I will also address the tertiary ground.

[49] Section 515(10)(c) of the Criminal Code requires the court to consider,

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment 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.

[50] Is this a strong Crown case? As stated, none of the Complainants, all young women, knew the Applicant, or each other. Each was subject to a violent, random attack. The Complainant in the 2019 Hallowe’en attack was able to photograph her assailant’s licence plate, which led the police to the Applicant. The Applicant’s DNA found on that Complainant was a match with the DNA on the three prior cold cases. The DNA evidence, coupled with video of some of the 2019 Hallowe’en attack found on the Applicant’s phone, renders this an exceptionally strong Crown case.

[51] There is, as well, no issue that the offences are grave: four random, violent, terrifying sexual assaults. The Crown has indicated its intention to seek a Dangerous Offender designation with an indeterminate sentence.

[52] The circumstances surrounding the offences are horrifying. Young women, out alone, were viciously assaulted. The allegations include the exacerbating circumstances of use of a knife and a firearm to further terrorize the Complainants.

[53] All these factors must be balanced to determine whether detention is necessary to maintain confidence in the administration of justice. This assessment must be informed by the perspective of the public.

[54] In St-Cloud, at para. 74, in considering the public, the Supreme Court of Canada referred to its decision in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, and stated as follows:

In Hall, this Court explained that the ‘public’ in question consists of reasonable members of the community who are properly informed about ‘the philosophy of the legislative provisions, Charter values and the actual circumstances of the case’: para. 41, quoting R. v. Nguyen (1997), 119 C.C.C. (3d) 269 (B.C.C.A.), at para. 18.

[55] In today’s climate, the particular impact of COVID-19 in detention centres must also be weighed on the tertiary ground analysis. As stated in R. v. Kazman, 2020 ONCA 251, at para. 18:

As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[56] A contextual approach, considering all factors, must be taken. As stated in R. v. T.K., 2020 ONSC 1935, at para. 74, “even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public”.

[57] In this case, the facts point to an alarming nightmare scenario of a serial sexual offender. If found guilty, the Applicant faces a very lengthy, possibly indeterminate sentence. The COVID-19 pandemic does not translate into an expectation of release. That expectation would erode the public confidence in the administration of justice, especially as it relates to crimes of terrible violence, as alleged in this case: see R. v. T.K., at para. 73.

[58] For all these reasons, I am satisfied that a release of the Applicant would result in members of the public losing confidence in the administration of justice. The Applicant failed to meet his burden on the tertiary ground.

Conclusion

[59] The application for review of the detention order is dismissed.

[60] Finally, and importantly, I thank both counsel, the Registrar and the reporter for their diligent and professional service in these challenging times.

Croll J.

Released: May 19, 2020

COURT FILE NO.: CR/20/158/00BR DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent

• and - D.P. Applicant REASONS FOR DECISION ON APPLICATION FOR REVIEW OF detention ORDER Croll J. Released: May 19, 2020