Court File and Parties
COURT FILE NO.: 19-18028 DATE: 2020/05/20 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN, Respondent – and – D.M., Applicant
Counsel: Moiz Karimjee, for the Crown Heather Salter, for the Applicant
HEARD: May 19, 2020
Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.
Endorsement on Bail Review Application
LONDON-WEINSTEIN J.
[1] Mr. D.M. brings a bail review pursuant to s. 520 of the Criminal Code. The review was heard by teleconference with consent of the parties.
[2] The onus was reversed at the original bail hearing. D.M. is charged with multiple counts of sexual assault and sexual interference in relation to four complainants.
[3] D.M. was detained on January 8, 2020. Detention was ordered on the secondary and tertiary grounds.
[4] The defence argues that there is a material change in circumstances since the original bail hearing due to COVID-19 and the addition of a GPS monitoring bracelet. The Crown does not contest that COVID-19 constitutes a material change in circumstances but opposes release. D.M. has been in custody on these charges since November 21, 2019 after serving a 14-month sentence for sexual assault. The victim in that case was six years old. D.M. also has two convictions for failing to comply with the conditions of his recognizance, trafficking in a Schedule II Substance and Mischief.
[5] D.M. proposes that he reside with his surety, A.T. in Ottawa. A GPS monitoring bracelet is proposed. A.T. has pledged $3,000. The proposed terms are extremely strict. D.M. is not to be out of the home in the absence of A.T. and is only permitted out, even with A.T., for limited exceptions.
[6] D.M. has health conditions which compromise his immune system. He has nerve pain from a separated cervical plate which he incurred in 2017. He has been diagnosed with short bowel syndrome, anemia, Crohn’s disease and vitamin and nutritional deficiencies. D.M. has had bowel obstruction surgery in the past due to complications of his bowel disorder. D.M. takes a number of medications.
[7] In early April, D.M. was physically attacked by a fellow inmate. His injuries included a broken orbital bone and a broken nose.
[8] D.M. testified that he knew of one reported case of COVID-19 at the Central East Correctional Centre in Lindsay where he is currently incarcerated. I was satisfied that the presence of COVID-19 in the community constituted a material change in circumstances such that a de novo hearing under s. 520 was triggered. R. v. J.S., 2020 ONSC 1710.
Discussion: Secondary Grounds
[9] D.M. has previously been twice convicted of failing to comply with the terms of his release. At the original bail hearing, Det. Anik St. Amour testified. A transcript of her evidence was submitted as part of these proceedings. She contacted individuals who had previously acted as sureties for D.M. Those former sureties attended the court house but did not testify in the bail hearing, although I understood they were available to testify.
[10] During the trial where D.M. was convicted of sexually assaulting E.R., the child’s mother became aware that D.M. may not be following the conditions of his bail. She believed she had observed D.M. close to E.R.’s school, although he was prohibited from being near the school. As a result, Det. St. Amour asked D.M. if he was residing with his surety, Ms. F.
[11] D.M., according to Det. St. Amour, maintained that he was residing with Ms. F. However, when Det. St. Amour contacted Ms. F. she learned that D.M. had not been residing with his surety. In his evidence before me, D.M. said he could not recall this conversation with Det. St. Amour.
[12] Ms. F. advised Det. St. Amour that she found D.M. a job but that he was drunk and lost that job after three days. He would not follow simple rules of the house, such as not having a torch in the house to smoke marijuana, and to smoke his bong outside of the house. D.M. would not follow any of the house rules and would just go out and do as he pleased. As a result, Ms. F. ejected D.M. from her home and notified him that she would be removing herself as a surety by the end of May 2018. In fact, D.M. was residing with Ms. D. when he was on conditions to reside with Ms. F.
[13] Ms. D. testified at an earlier bail hearing that D.M. had in fact, been living at her house since February. Ms. D. indicated that she and D.M. smoked crack cocaine together. Ms. D. asserts that she spent an inheritance in the amount of $125,000 on crack cocaine, which she smoked with D.M. The mischief conviction on D.M.’s record relates to damage to Ms. D.’s apartment. She maintained that there was a $20,000 cleaning bill incurred to repair the damage.
[14] A previous surety, N.L. was forced to remove herself as surety after a report of partner assault. She was 18 years old and was nine months pregnant at the time she signed on as surety. No charges were laid, but CAS became involved and N.L. could no longer act as surety.
[15] D.M. has not been able to submit himself to the authority of the sureties who have acted for him in the past. In the case of Ms. F., he refused to follow house rules. D.M., in his evidence before me, denied being drunk and losing his job as a result. He admitted that he was asked to smoke outside, but he said he felt this was unfair as Ms. F. and her partner Mr. P. smoke inside, and sometimes they would let him smoke with them. As a result, he felt he should be allowed to smoke inside whenever he felt so inclined.
[16] D.M. admitted to smoking crack cocaine with Ms. D. but said that she gave him the crack cocaine, he did not give it to her. He agreed that N.L. revoked her agreement to act as his surety.
[17] Ms. A.T. is now proposed as a surety. She dated D.M. briefly years ago, but did not have direct contact until she was contacted by a staff member for counsel requesting that she act as a surety.
[18] Ms. A.T. does not consume alcohol. She does not use drugs. Her children are adults and out of the house. She has given up her babysitting job in order to act as a surety for D.M. She offers $3000 in support of the bail plan. Her prior dating relationship with D.M. ended due to conflict. Ms. A.T. could not remember what the fight was about which ended the relationship but said that they were both under stress.
[19] At the original bail hearing, Ms. A.T. suggested that she might be able to keep her babysitting job, if the 10-year-old child agreed to have D.M. present. She testified, “The person I babysit for, they know of his charges also and I’m going to be going to talk to their son to see how he would feel if he were to come with me. And if he can’t come with me, I am stepping down as the baby sitter.” The Crown asked, “So, you think it is a good idea to bring D.M. to babysit a 10 year old?”
[20] Ms. A.T. responded, “I’m babysitting, not him.” In her evidence at this bail review, Ms. A.T. modified her position and testified that she now knew that it would not be appropriate to discuss D.M.’s charges with a 10-year-old child and that this scenario would not take place. She would no longer be babysitting the child.
[21] Ms. A.T. is a person of modest means, but she is willing to open her home to D.M. and to assist him with paying the fees for the GPS monitoring bracelet.
[22] Given D.M.’s past history of failure with sureties, I was not satisfied that he would follow the conditions of his bail with Ms. A.T. as a surety. I found Ms. A.T. to be very well intentioned, and in fact, dedicated to D.M. For example, she has attended his court dates and demonstrated complete faith in him. However, D.M. has a history of not being easily managed by sureties. Ms. A.T. says that she will be with him constantly and he will not have time to breach. She does not consume drugs or alcohol. Despite these attributes as a surety, I was not confident that D.M. would follow her directives. While she has had contact with him by visiting him at the Ottawa jail when he was held there, from 2013 to 2019 she had no direct contact with him at all. After being contacted by his cousin, she now is willing to act as his surety.
[23] The addition of the GPS bracelet does strengthen this plan. I do not agree with the proposition that monitoring does not enhance the protection of the public. Monitoring by GPS, in conjunction with a surety provides not only the assurance which is provided by a surety’s supervision, but an accused person is also aware that the device ensures detection of any boundary breaches. In my view, the certainty of detection can enhance the likelihood that an accused person will comply with the plan of bail. As a complimentary adjunct to a surety, I find that the GPS monitoring proposed would enhance this plan of bail. However, the person who is the subject of monitoring must be willing to follow the rules.
[24] I have residual concerns that D.M. will not follow the directives of Ms. A.T. despite his assertions to the contrary. I found that D.M. tended to blame the failure of every bail plan on the shortcomings of his sureties. Ms. F. treated him as an errand boy, according to him. Ms. D. introduced him to crack cocaine.
[25] Further, while I found Ms. A.T. to be very dedicated to the idea of acting as a surety for D.M., I had concerns about her judgment. While she explained that she now knows that she should never have entertained the idea of discussing D.M.’s charges of sexual assault and sexual interference with a 10-year-old child, her evidence at the original bail hearing was otherwise. This evidence revealed a serious lapse in judgment. The necessity for a surety to possess sound judgment in a case like this one, where D.M. has already been convicted of sexual assault of a very young child and is facing numerous very serious charges, cannot be overstated. I inferred from her evidence that Ms. A.T. believes in the innocence of D.M. in relation to the offence for which he was convicted. In and of itself, this faith in D.M.’s innocence of a charge for which has been found guilty would not necessarily impair her ability to act as a surety. However, I had a concern based on this factor, and on the tenor of her evidence as a whole, that she underestimates the potential risk which D.M. poses to the community and as a result may not be rigorous enough in her supervision of D.M.
[26] Despite the very thorough submissions of counsel, I am not satisfied that D.M. has met his onus on the secondary grounds. In my view there is a substantial likelihood that he will commit additional offences if released from custody with Ms. A.T. as a surety.
Tertiary Grounds
[27] In regard to the tertiary ground set out in s. 515(10)(c) of the Criminal Code, I am required to consider whether detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including:
i. the apparent strength of the Crown’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 which involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[28] In terms of the strength of the Crown’s case, I had limited information from which I could draw general inferences regarding how strong the evidence is against D.M. These offences are historical in nature and memories fade with time. These types of cases are sometimes fraught with difficulty. However, I am advised that the Crown will be bringing a similar fact evidence application. On the other hand, the defence advises me that there are applications which have yet to be argued, which may strengthen the defences offered. At this point in the proceedings, I am unable to conclude that the strength of the Crown’s case favours detention. In my view, it is a neutral factor in the analysis at this point.
[29] The offences are serious. The allegations involve sexual assault of young girls on multiple occasions. There is an allegation of anal penetration in one instance.
[30] The circumstances surrounding the commission of the offence involve allegations of multiple instances of sexual assault of young girls. Alcohol and drugs were provided in some instances. There are numerous complainants. This factor favours detention.
[31] D.M. is liable to a lengthy period of incarceration if convicted of even some of these offences, especially considering he has a prior conviction, which would arguably elevate the sentence he may eventually receive.
[32] Three of the four enumerated statutory factors involving the tertiary ground favour detention. While I must consider the four enumerated grounds, I am also required to consider all relevant factors. It is also not automatic that detention be ordered where the statutory grounds favour detention. R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 para. 69.
[33] St-Cloud permits the consideration of the personal circumstances of the defendant, including his physical or mental condition (at para 71).
[34] I accept that there is a greatly elevated risk to D.M. from COVID-19 as opposed to being home on house arrest, as Justice Copeland held in R. v. J.S., 2020 ONSC 1710. The risk of COVID-19 is relevant to the tertiary ground analysis. A reasonable person described in the tertiary ground as being familiar with the fundamentals of our system of laws and Charter values would have concerns regarding the inability of prisoners to self-isolate and frequently hand wash, as is recommended to avoid contracting the virus.
[35] I accepted the evidence of Dr. Aaron Orkin that releasing prisoners from jail not only protects the prisoner from becoming infected, but also has a direct public health benefit to the community as it reduces opportunity for an outbreak which will overwhelm health resources.
[36] I am satisfied that D.M. is at an elevated risk of contracting the virus due to his medical issues and the fact that his immune system is compromised. I accepted the evidence of D.M. that there is one reported case of COVID-19 in the facility where he is housed. Dr. Orkin indicates that Ontarians will experience the peak of the COVID-19 epidemic within the next seven weeks, sometime before June 20.
[37] Dr. Orkin rightly notes that a judicial officer deciding whether or not to detain someone will inevitably take other considerations into account, and will have to balance various factors in determining what is in the community’s best interest. Dr. Orkin’s opinion is that any solution which promotes and enables physical distancing between individuals is in the community’s best interest for the management of COVID-19.
[38] I have also considered that due to COVID-19, D.M.’s matters have been postponed and there will be significant delay before his matters can be reached.
[39] COVID-19 is one of many factors which must be weighed in determining whether public confidence in the administration of justice will be undermined by releasing an individual. It is an important factor, and given D.M.’s health conditions, I gave it significant weight in the analysis. I also considered that the community would be well served by reducing the jail population, as Dr. Orkin pointed out. However, I must consider all of the relevant factors in determining whether the release of D.M. would undermine confidence in the administration of justice. In addition to my concerns on the secondary grounds, I also found that the analysis of the tertiary grounds favoured detention.
[40] Given that circumstances relating to the threat of COVID-19 can change rapidly, D.M. may have to renew his application for release if circumstances warrant. At present, he will be detained on the secondary and tertiary grounds.