Court File and Parties

Court File No.: CR-20-277-00BR Date: 20200522

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN R. Prihar, for the Crown Respondent

- and -

JEHROOMIEN RAJENDRAM K. Schofield, for the Applicant Applicant

HEARD: May 15, 2020, by teleconference

REASONS FOR JUDGMENT – BAIL REVIEW

André J.

[1] Mr. Jehroomien Rajendram brings an application for a bail review pursuant to s. 520 of the Criminal Code, R.S.C. 1985 c. C-46 (the Code). His counsel submits that the learned Justice of the Peace erred in law in detaining him on February 24, 2020 and that alternatively, there has been a material change in circumstances, based on a new supervision plan and Covid-19, that justifies Mr. Rajendram’s release.

[2] On May 20, 2020, I advised all parties of my decision to deny the application and undertook to provide them with my written reasons within a few days. These are the reasons for my decision.

BACKGROUND FACTS

[3] On January 10, 2020, sometime after 2:00 a.m. Mr. Rajendram allegedly fired gunshots in the direction of a Brampton residence. Members of the Peel Regional Police Force (PRPF) investigated the incident and observed a van with several bullet holes, and several bullets and casings in the driveway and adjoining street. They also retrieved a DVR system from the residence and viewed a video of the scene at the time of the shooting. It allegedly showed Mr. Rajendram exiting a four-door sedan and walking up the driveway of the residence holding a firearm. He then held the firearm with both hands as he approached and was in view of the camera for one minute. Mr. Rajendram reappeared in the view of the cameras and headed back down the driveway towards the waiting white sedan.

[4] Once on the roadway, Mr. Rajendram turned around and fired the gun multiple times in the direction of 32 Amantine Crescent, striking a white Honda Odyssey and the garage door of the residence. Mr. Rajendram re-entered the passenger side of the white sedan and the vehicle drove away.

[5] On January 11, 2020, the PRPF conducted an investigation of the area and seized video surveillance from 16 and 20 Bloomingdale Drive in Brampton.

[6] The video seized from 20 Bloomingdale Drive showed that prior to the shooting, a white sedan pulled up and Mr. Rajendram exited the passenger side and walked up the driveway between two vehicles. He appeared to have a firearm in his hand.

[7] On January 15, 2020, police observed Mr. Rajendram exiting the residence of 35 Ceremonial Drive, Unit 32 in Mississauga, Ontario. He entered a gray Mercedes parked in the driveway. The police then arrested him.

[8] Upon a search incident to arrest, the police recovered two cellular phones on Mr. Rajendram. The police allege that Mr. Rajendram and the shooter share a similar “balding spot”.

[9] They subsequently executed a search warrant on 35 Ceremonial Drive, Unit 32 and recovered the following items:

a. Mail addressed to Mr. Rajendram; b. A bullet and casing with the same markings as the casings that were located at the Amantine shooting incident (the back of the bullet had red colouring on it).

OUTSTANDING SEXUAL ASSAULT CHARGES

[10] Prior to the incident, a court convicted Mr. Rajendram of sexual assault. He then applied for bail pending his appeal. His sentence of 9 months jail was also stayed pending the appeal. The Crown consented to Mr. Rajendram’s release. The court released Mr. Rajendram on a surety recognizance on October 11, 2019, in the amount of $7,500. He was ordered to obey a curfew between the hours of 9:00 p.m. and 6:00 a.m., unless for medical emergencies, or in the presence of his surety. He was only permitted to possess one cellular phone or SIM card registered in his name.

[11] The Crown alleges that Mr. Rajendram breached his curfew, breached the no weapon condition of his bail and breached the condition requiring him to only possess one cell phone.

[12] The Crown also alleges that Mr. Rajendram breached a weapons prohibition order that was imposed on April 30, 2017 for his conviction of assault with a weapon. He received a suspended sentence and two years’ probation, along with a mandatory section 109 order for a period of 10 years, and a lifetime prohibition order for restricted or prohibited firearms.

BAIL HEARING

[13] A bail hearing took place on February 21, 2019 and March 5, 2020.

[14] Mr. Rajendram’s mother and father were proposed as the sureties. The proposed plan included a house arrest bail which would have had Mr. Rajendram reside with his sureties, as well as being subject to GPS monitoring. Mr. Rajendram’s parents proposed to pledge all of their savings in support of their son’s release, which was approximately $74,000.

[15] On March 5, 2020, Justice of the Peace Burton detained Mr. Rajendram on the secondary and tertiary grounds. The Justice of the Peace found that Ms. Rajendram’s “blind love” for her son would not serve her well as surety. The court was also concerned that Ms. Rajendram failed to provide any information to the court about the steps that she would take to supervise her son.

NEW EVIDENCE

[16] Following the bail hearing the PRPF recovered 51 SMS text messages from one of the cellphones found in Mr. Rajendram’s possessions which had been sent on January 10, 2020, to various cellphone numbers, following the shooting. They include the following:

a) “Shot off at someone’s house LOL”; b) “I’m on CP24 bro”; c) “I’m probly gonna go to jail or die so”; d) “Check CP24”; e) “I’m on CP24. Check the shootings last night, LOL”; f) “Shot up Kris plugs’ house”; g) “I was on CP24”; h) “Ask G what happened. Your house is next, faggot”.

LEGAL PRINCIPLES

[17] Section 11(d) of the Canadian Charter of Rights and Freedoms provides that everyone is presumed to be innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Section 11(e) provides that any person charged with an offence has the right not to be denied reasonable bail without just cause.

[18] Section 515(10) of the Code outlines the only statutory grounds for pre-trial detention of an accused. It states:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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; and

(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.

[19] The Supreme Court of Canada noted in R. v. St-Cloud, 2015 SCC 27, [2015] SCJ No. 27, that a reviewing judge can intervene where there has been a legal error in the application of s. 515(10) of the Criminal Code or relevant new evidence is tendered.

APPLICANT’S POSITION

Error in Law

[20] Ms. Schofield submits the following:

a) Justice of the Peace Burton misapprehended the evidence of Emmanuel Rajendram. This misapprehension led to a cascading effect of errors which ultimately led to the Applicant’s improper detention on the secondary and tertiary grounds.

In undermining the ability of the Applicant’s father as a surety, the court stated as follows in the Reasons for the Ruling:

He believes that he has a good relationship with his son and that his son will listen to him. He admitted in cross-examination, however, that he does not know exactly what his son is doing. He believes GPS monitoring is needed because he believes that the court is requiring that it be imposed. He also further believes that his son is a mortgage broker which is different than what his wife indicated his son was doing for employment, although it would be in the same line of business. Not exactly a mortgage broker according to his wife. I am concerned that Mr. Rajendram Senior does not know what his son is doing. Like I said, the type of employment he believes his son in is different than what his wife states it is. Mr. Rajendram did not even appear to know about his son’s post-secondary education and it is clear from the testimony that Mr. Rajendram Senior is not aware of his son’s criminal lifestyle.

b) Mr. Rajendram Senior was sufficiently aware of what his son did for work and that he was employment with his uncle. He also testified that he knows his son hangs out with his friends when he is not working.

c) The Applicant’s father was aware of his son’s activities and whereabouts in the timeframe leading up to his arrest. Mr. Rajendram knows that his son was a mortgage broker, and that when he was nor working, he would be hanging out with his friends.

d) As a result of the above noted error, the Justice of the Peace erred in rejecting that the Applicant’s father was a suitable surety capable of enforcing twenty-four-hour house arrest, with a GPS monitoring bracelet. In misapprehending his evidence, the Court failed to consider the proposed plan of release in the tertiary ground analysis.

e) Ms. Schofield further submits that the learned Justice of the Peace was required to assess the strict plan of release proposed in relating to the tertiary ground. As stated in R. v. Phan, 2015 ONSC 5947, at para. 15:

There was no consideration of whether an informed member of the public would consider detention necessary to maintain confidence in the administration of justice, knowing the accused would be strictly limited in his freedom as contemplated by the terms of release. While it may be that the JP’s failure to consider the strict plan of release on the application of s. 515(10(c) was an error of law, this issue has not yet been determined by an appellate court. However, in my view, the JP’s decision was clearly inappropriate as he gave no weight to the plan of release. [emphasis added]

In Phan, the Honourable Justice Croll, cites the decision in R. v. Dang, 2015 ONSC 4254, and the reasons of the Honourable Justice Trotter, which contemplates the following:

An accused person’s plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released: see R v. B.(A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 501. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c. 1) to s. 29(2)(c) of the YCJA. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c). [emphasis added]

f) Justice of the Peace Burton failed to adequately consider the suitability of the Applicant’s father as a surety and failed to consider the proposed plan of release in her analysis under the tertiary grounds.

[21] The new proposed supervision plan and the Covid-19 epidemic constitutes a material change in circumstances that justifies Mr. Rajendram’s release.

[22] The new plan involves:

a) The addition of two new sureties in addition to the applicant’s father. The first additional surety is the applicant’s cousin who will be moving into the family home at 35 Ceremonial Drive, Unit 32 in Mississauga. The second additional surety is the applicant’s sister who will also reside at the same address; and b) The new proposed plan includes an increase in quantum and hard curfew – barring the applicant from leaving his house, even in the presence of a surety, between the hours of 11:00 p.m. and 6:00 a.m.

ANALYSIS

[23] This application raises the following issues:

1. Did the learned Justice of the Peace err in law in detaining Mr. Rajendram on the secondary ground?
2. Did the learned Justice of the Peace err in law in detaining Mr. Rajendram on the tertiary ground?
3. If the learned Justice of the Peace did not err in detaining Mr. Rajendram, has there been a material change in circumstances that justifies Mr. Rajendram’s release?

Did the learned Justice of the Peace err in detaining Mr. Rajendran on the secondary ground?

[24] Ms. Schofield contends that she did. She submits that Justice of the Peace Burton placed little or no weight on the plan of supervision presented by Mr. Rajendram and her decision to do so constitutes reversible error.

[25] I disagree. Ms. Schofield does not take issue with Justice of the Peace Burton’s conclusion that Mr. Rajendram’s mother would be an ineffective surety because she could not articulate what steps she would take to supervise Mr. Rajendram. It was clearly within the Justice of the Peace’s discretion to arrive at that conclusion.

[26] Similarly, it was within Justice of the Peace Burton’s discretion to conclude that Mr. Rajendram Sr. did not know his son’s activities other than knowing that the applicant was a mortgage broker. Mr. Rajendram Sr. did not know about the bullet casing and money found in his son’s basement room. He testified, under cross-examination, that he was not aware of what his son had been up to. He added: “the only thing I know is he works as a mortgage broker”.

[27] Justice of the Peace Burton had the responsibility of assessing the supervision plan in light of the circumstances of the case which included the allegations, Mr. Rajendram’s record, the court orders he allegedly breached and the seriousness of the allegations. It was well within her discretion to ascribe whatever weight she concluded was appropriate to the evidence of Mr. Rajendram Sr. In my view, the fact that a reviewing court may have placed more weight on Mr. Rajendram’s evidence than that placed on this evidence by Justice of the Peace Burton does not amount to reversible error.

Did the Learned Justice of the Peace err in law by detaining Mr. Rajendram on the tertiary ground?

[28] Ms. Schofield submits that she did primarily because of her failure to consider the proffered supervision plan in her assessment of the tertiary ground.

[29] The learned Justice of the Peace assessed the four conditions set out in s. 515(10)(c) of the Code. She understood that even if the four preconditions were met, she had a residual discretion to release Mr. Rajendram. She decided not to do so based on the seriousness of the allegations, Mr. Rajendram’s record and the allegation that he breached at least three court orders. Given Justice of the Peace Burton’s conclusion that the proposed plan did not allay her fears that there was a substantial likelihood of Mr. Rajendram reoffending if released, it would have been unlikely that she would have concluded that the proposed supervision plan tipped the scale in favour of release on the tertiary ground. I am therefore not persuaded that the Justice of the Peace erred in favour of releasing Mr. Rajendram under the tertiary ground. To that extent, Justice of the Peace Burton did not err in detaining Mr. Rajendram on the tertiary ground.

Is there a material change in circumstances that justify Mr. Rajendram’s release?

[30] The Crown concedes that the applicant has met the evidentiary threshold for a hearing regarding whether there is a material change in circumstances that justifies Mr. Rajendram’s release.

Is Mr. Rajendram’s detention justified on the secondary ground?

[31] Section 515(10)(b) provides that the detention of an accused is justified where the detention is necessary for the protection or safety of the public 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.

[32] In R. v. Morales, [1992] S.C.J. No. 98, at para. 40, the Supreme Court of Canada noted at para. 98 that:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

See also R v. Antic, 2017 SCC 24, [2017] 1 S.C.R. 509.

[33] In R. v. Abdel-Gadir, 2015 ONSC 1163 at para. 32, the court listed the following factors that can be considered under the secondary ground:

a. The nature of the offences; b. The relevant circumstances of the offences; c. The likelihood of a conviction; d. The degree of involvement of the accused; e. The accused’s personal circumstances including his occupation, lifestyle and criminal antecedents; f. The danger which the interim release of the accused represents to the community specifically affected by the matter.

[34] To these factors could be added the nature of the proposed supervision plan, the offences for which he or she has been convicted and the length of sentence, if he is convicted.

NEW SUPERVISION PLAN

[35] It should be noted that in the first bail hearing the applicant proposed a supervision plan that involved his parents as sureties, an offer of $74,000 to secure Mr. Rajendram’s release and electronic monitoring by Science Recovery Corporation.

[36] The new supervision plan has three components. They are:

1. A technological development which would make GPS monitoring more effective than previously. In this regard, Stephan Tan, the head of Recovery Science Corporation, testified that his company has developed an App that has only come into effect approximately one week ago called Live Video App, which is installed on the cellphones of every surety. The App enables a police officer to know at any time where Mr. Rajendram is and if outside his residence, to confirm whether he is in the presence of his surety. It therefore enhances the effectiveness of monitoring Mr. Rajendram if he is released.
2. Ms. Schofield is proposing that in addition to a house arrest condition, Mr. Rajendram would observe a curfew and would remain in his residence between 10:00 p.m. and 6:00 a.m.
3. The applicant is proposing two new sureties; one being his younger sister, Angeleein Rajendram, the other being his cousin, Jerooen Thevarajah.

Angeleein Rajendram

[37] The twenty-four-year-old Ms. Rajendram has no criminal record. She resides at the family residence along with her parents and other brother. She has worked with a company for two months but has been confined to her residence because of Covid-19. She has $2,000 in savings and is prepared to supervise Mr. Rajendram. She is aware of the allegations against him and his criminal record. Her willingness to act as her brother’s surety has not been diminished by the SMS text messages recovered from a cellphone found in his possession.

Jerooen Thevarajah

[38] Twenty-six-year-old Mr. Thevarajah is Mr. Rajendram’s cousin. He has no criminal record. He currently earns $70,000 annually as a program manager at a company. He works Monday to Friday from 7:00 a.m. to 4:30 p.m.

[39] Mr. Thevarajah is prepared to take a number of steps to secure Mr. Rajendram’s release. These include pledging $25,000 to secure Mr. Rajendram’s release, moving into the Rajendram family residence and assisting in Mr. Rajendram’s supervision at the end of his work day. He is aware of the allegations against Mr. Rajendram, the latter’s criminal record, the electronic plan being offered to secure Mr. Rajendram’s release and the fact that the police would be contacted if Mr. Rajendram leaves the residence without a surety.

SUPERVISION PLAN

Does the offer of two new sureties in this case constitute a material change in circumstances that justifies Mr. Rajendram’s release?

[40] In R. v. Ferguson, 2020 ONSC 1969, at para. 17, Hill J. noted that shuffling the deck with the offer of new sureties does not necessarily constitute a material change of circumstances and that it was only where the new sureties call into question the continued validity of the original detention order, that a material change in circumstances may justify an applicant’s release: see also R. v. Riaz, 2017 ONSC 3751, para. 16; R. v. Hassan, 2015 ONSC 4535, para. 27; R. v. Aydin Akdemir, 2010 ONSC 6955, para. 68.

Does the offer of two new sureties in this application materially calls into question the continued validity of the February 4, 2020 detention order?

[41] Mr. Emmanuel Rajendram has a sincere desire to assist his son by pledging $70,000, or all his savings and the sanctuary of his own home to secure Mr. Rajendram’s release. Mr. Rajendram Sr. suffered a stroke a few months ago, however, this will not, he testified, affect his ability to supervise his son. He is also prepared to pay for the electronic monitoring if I release Mr. Rajendram.

[42] Despite this, I have some concerns regarding Mr. Rajendram’s ability to supervise his son who hasn’t lived with him for four years. When questioned about his son’s life, Mr. Rajendram Sr. replied: “I don’t interfere too much; he’s an adult”. He was unaware, before the date of his son’s arrest, of the presence of the bullet casing and money found in his son’s bedroom. While that lack of knowledge does not, in itself, disqualify him as a surety, it raises some questions regarding just how much he knows about his son’s personal life. More significantly, Mr. Rajendram Sr. testified that he has spoken in the past to his son regarding criminal activity and Mr. Rajendram had responded that he would not get involved in any such activity. This conversation, Mr. Rajendram Sr. noted, took place before January 2020, “for sure”.

[43] At the very minimum, Mr. Rajendram has not taken his father’s advice regarding any involvement in illegal activity. Mr. Rajendram Sr. knows very little about his son’s life. These two factors raise serious questions concerning Emmanuel Rajendram’s ability to supervise the applicant if he is released.

[44] Similarly, Jerooen Thevarajah is well-intentioned and sincere and is prepared to supervise Mr. Rajendram. However, although he testified that he is “very close” to his cousin, given that they grew up together, their close relationship has clearly not had an ameliorating effect on Mr. Rajendram. Furthermore, he did not know the identity of the persons to whom the text messages had been sent on January 10, 2020 and this clearly raises questions regarding his ability to supervise Mr. Rajendram.

[45] Finally, Angeleein Rajendram is willing to supervise Mr. Rajendram if he is released and to that extent, willing to pledge $2,000 to secure his release. Ms. Rajendram testified that her bother has listened to her in the past, however; that is clearly not reflected in Mr. Rajendram’s criminal record or the allegations against Mr. Rajendram. While Ms. Rajendram wishes to supervise her brother, I am concerned about whether he would be amenable to her supervision if he is released.

[46] For the above reasons, I am not persuaded, even on a balance of probabilities, that the offer of new sureties in this application materially calls into question the continued validity of the detention order of Justice of the Peace Burton on February 21, 2020.

ELECTRONIC MONITORING

[47] Undoubtedly, an order for electronic monitoring, either on its own, or in conjunction with the offer of new sureties, can constitute a material change in circumstances: see R. v. Y.A., 2020 ONSC 2155, at para. 43. As noted by Nordheimer J. (as he was then) in R. v. Doucette, 2016 ONSC 852, at para. 5:

… electronic monitoring does significantly reduce the likelihood that an accused person will commit an offence if he or she is released. This is because the accused has to know that in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area.

[48] That said, there are limitations to electronic monitoring that do not assuage the Court’s concerns on the secondary ground. As Mr. Tan readily conceded, electronic monitoring will only reveal where the monitored person is, not what he or she is doing. Second, it cannot guarantee the police presence in an ongoing offence. Neither can it prevent wrongdoing, it can only reveal location. In certain cases, such as this one, GPS monitoring through Recovery Science Corporation cannot significantly reduce the likelihood of an applicant committing an offence that would endanger public safety: see R. v. Jesso, 2020 ONCA 280, paras. 23-27.

[49] In this matter, the following information raises serious concerns that there is a substantial likelihood that Mr. Rajendram will reoffend if released:

a) the nature of the allegations which involve the discharging of a firearm in the direction of a residence where the shooter knew there were residents; b) the criminal record which is fairly recent; c) the allegations that Mr. Rajendram allegedly breached three separate court orders namely: i) not to have any weapons; ii) not to have more than one cellphone in his possession; and iii) not to be out of his home after a certain time; d) the messages on the cellphone found in his possession, which included statements such as: “You are next, faggot”, “Shot up Kris Plug’s house”, and “LOL did his girl snitch btw. She knew it was me.”

[50] A number of decisions have stated that the degree of violence in the allegations against an accused is relevant to determining the potential risk to the public if an accused is released: see R. v. H.(R.), 2006 ONCJ 116, 38 C.R. (6th) 291; R. v. Heong, 2011 ONSC 2037; R. v. Croteau, 2016 ONSC 1515.

COVID-19

[51] Is Covid-19 a factor in assessing whether or not there is a substantial likelihood that Mr. Rajendram will offend if released? In my view, the pandemic could, in appropriate circumstances, be a factor in assessing the appropriateness of detention on the secondary ground. Whether or not it is a factor will depend on various factors including the allegations and their surrounding circumstances, and the criminal antecedents of the applicant. There is no empirical evidence in this application which show that violent crime has been reduced in the aftermath of Covid-19. The very converse may be true, at least in the Greater Toronto Area. In my view, Covid-19 does not tip the scale in favour of Mr. Rajendram in my assessment of the secondary ground.

THE TERTIARY GROUND

[52] Section 515(10)(c) of the Code sets out the following factors to determine whether an applicant’s detention is necessary to maintain confidence in the administration of justice:

1. The strength of the Crown’s case;
2. The seriousness of the offence;
3. Whether the applicant faces a significant jail sentence, if convicted; and
4. The circumstances of the case including whether the firearm was discharged in a public place.

[53] The presence of these factors does not result in the automatic detention of an applicant for bail: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 68-71.

[54] To consider whether Mr. Rajendram should be detained on the tertiary ground, I must ascertain whether a reasonable and well-informed member of the public who is conversant with the rule of law, the presumption of innocence, the right, under s. 11(e) of the Charter, not to be denied reasonable bail without just cause, and the circumstances surrounding the allegations, would conclude that the detention is necessary to maintain confidence in the administration of justice.

STRENGTH OF THE CROWN’S CASE

[55] Ms. Schofield, in commenting on the strength of the Crown’s case, submits that Mr. Rajendram does not concede that the text messages on one of the cellphones found in his possession were sent by him. That may well be the case. However, the messages recovered from a cellphone found in Mr. Rajendram’s possession, along with the surveillance evidence recovered at the scene of the shooting, the bullet casings recovered at the scene and a similar casing recovered from Mr. Rajendram’s residence, collectively suggest that the Crown has a formidable case against Mr. Rajendram.

SERIOUSNESS OF THE OFFENCE

[56] Ms. Schofield does not dispute that the allegations are very serious. Ms. Rajendram allegedly fired bullets in the direction of a residence with occupants within it.

Does Mr. Rajendram face a significant jail sentence if convicted?

[57] Mr. Rajendram faces a lengthy penitentiary sentence if convicted.

CIRCUMSTANCES OF THE CASE

[58] Mr. Rajendram allegedly had a dispute with a male who lived at the residence where the shooting occurred. He allegedly discharged the firearm in the direction of the private residence. One of the bullets struck the garage of the residence. Subsequently, Mr. Rajendram allegedly sent messages to third parties taking credit for the shooting and warning that a certain individual would be next.

[59] These four factors justify a detention on the tertiary ground however, I am required to consider other factors as well including the Covid-19 pandemic.

THE COVID-19 PANDEMIC

[60] I am prepared, as a number of courts have done before me, to find that Covid-19 constitutes a material change in circumstances that requires an analysis, under s. 515 (10)(c), whether Mr. Rajendram should be released: see R. v. J.A., 2020 ONSC 2312; R. v. Davison, 2020 ONSC 2481; R. v. P.K., 2020 ONSC 2694, at paras. 37-39.

[61] I am also prepared, given the considerable body of information about the pandemic, and the jurisprudence on the intersection of Covid-19 and bail, to take judicial notice of the following facts:

a) The pandemic has wreaked untold death and destruction worldwide; b) Covid-19 is extremely infectious and can spread rapidly in any location; c) The main mitigatory steps recommended to “flatten the curve” of infection are i) social distancing, ii) the wearing of personal protection equipment (PPE), and iii) regular testing of the population; d) Persons in confined spaces, such as long-term care facilities, shelters and prisons, given the inability to take mitigatory measures such as social distancing, are particularly vulnerable to the disease; e) Persons who have pre-existing medical problems such as diabetes, high blood pressure and respiratory problems are particularly susceptible to being infected by the virus.

[62] The Crown has filed a letter from the Minister of the Solicitor General, dated May 12, 2020, indicating that a number of policies and procedures have been taken to stop the transmission of the Covid-19 virus in all provincial adult, correctional institutions. It also indicates that:

a) Stocks of critical supplies including PPE and cleaning products are monitored daily and that any shortages are addressed immediately; b) Inmates have access to both formal and informal complaint procedures to both internal and external oversight bodies for a timely resolution of complaints; c) Inmates have access to PPE including face masks and are required to wear it when directed by healthcare according to guidelines developed by the Ministry of Health and Public Health Ontario; and d) All screening processes were created in consultation with the Ministry of Health and Public Health Ontario.

[63] The Report also indicates that with the exception of the Ontario Correctional Institute, there have been few, if any cases of infection in the vast majority of Ontario correctional institutions.

MR. RAJENDRAM’S AFFIDAVIT

[64] Mr. Rajendram has deposed in his affidavit that:

a) He shares a cell with another inmate; b) He has not been given any masks, gloves or hand sanitizer to aid in the spread of Covid-19; c) The inmates share jackets for yard time which do not appear to have been washed in any way; d) There are approximately 32 inmates on his range which is 9D. His range is next to the intake range which is 9E. This latter range facilitates new arrests and inmates in 9D can communicate with the new arrivals in 9E. He is worried that inmates in 9E may have Covid-19 and be able to spread it throughout the facility even if they don’t show any symptoms. e) The Maplehurst Correctional Centre (MCC) is short on supplies. His range receives 5-6 rolls of toilet paper daily to share among 32 inmates. f) He is not provided a blanket upon his transfer. He is often cold inside the facility because he does not have a real blanket.

MCC’s Response to Mr. Rajendram’s Affidavit

[65] A member of the MCC has sent a letter responding to Mr. Rajendram’s affidavit. This letter has been marked as an exhibit in this application on consent. It indicates that:

a) Alcohol-based hand sanitizers are available to inmates of MCC. b) PPE are provided to inmates “when it is appropriate to do so, based on health care guidelines and operational policies” c) Inmate jackets are washed by Trilcor Industries as often as necessary or following any extenuating circumstances; these jackets are not washed after each use; d) Replacement jackets are provided upon the direction of the unit manager; e) Unit 9D and 9E are physically separated by a concrete wall, fire and entry doors and plexiglass; there is no physical interaction between the two ranges; f) Unit 9E was designated an Intake Unit on April 26, 2020. It was converted back to general population on May 8, 2020; g) New inmates are placed in temporary intake units where they are monitored daily by nursing staff. On day 10, Covid-19 tests are done on each of these new inmates. Upon receiving a negative result, inmates are then moved to appropriate living areas as required. h) Each morning, inmates are provided with adequate supplies of soap, toothpaste, toothbrushes, a comb and cleaning products; i) Toilet paper is provided to each living unit daily or as otherwise required. j) Unit 9D is not adjacent to an additional exterior wall where temperature fluctuations may occur.

ANALYSIS

[66] The laudable steps taken by the Ministry of Correctional Services does not alter the fact that Covid-19 is highly contagious and that persons in confined spaces such as prisons, where social distancing is virtually impossible, enhances the risk of infection. I agree with those cases which have held that there is an enhanced risk of infection in prisons and that no evidence needs to be tendered to establish that fact: see R. v. Rajan, 2020 ONSC 2118, at paras. 28-40; R. v. J.S., 2020 ONSC 1710, at para. 19; R. v. T.L., 2020 ONSC 1885; R. v. C.J., 2020 ONSC 1728, at para. 9.

[67] Additionally, the documents presented by the Crown regarding the steps taken to mitigate the spread of infection in provincial institutions do not include the number of inmates who have been tested for the virus and the frequency of such testing. This is significant given that some persons who are infected with the virus could nevertheless be asymptomatic. This phenomenon of asymptomatic spreaders and the fact that the steps taken to reduce the risk of infection do not appear to address this problem gives little confidence that the risk of infection in prisons has been eliminated. On the other hand, there is no evidence of a significant Covid-19 outbreak at the MCC and that is a factor I must consider in assessing the significance of Covid-19 on the tertiary ground analysis: see R. v. Jesso, 2020 ONCA 280, at para. 36-38.

[68] A number of decisions have emphasized that Covid-19 is not a “get out of jail free card”: see Rajan, at para. 56; R. v. P.K., 2020 ONSC 2694, at para. 67; R. v. Williams, 2020 ONSC 2237, at para. 25. The virus does not set aside the analytical framework for assessing whether an applicant should be released on bail; it merely involves consideration of an additional factor that may have grave implications on an inmate’s health. This factor must be carefully assessed in every case involving a bail application given that, as noted in Williams, at para. 125, “the wholesale release of those held in our detention centres is neither feasible nor sensible.”

[69] Ms. Schofield submits that this case is on all fours with that in R. v. J.R., 2020 ONSC 1938, where Schreck J. released an accused despite allegations that he discharged a firearm and that he had a lengthy criminal record with multiple breaches of court orders.

[70] In J.R., Schreck J. noted at para. 5 that the applicant was alleged to have discharged a firearm “in a public place while in a motor vehicle in circumstances where death or serious injury was likely but fortunately did not occur.” He allegedly had a loaded prohibited firearm and several rounds of ammunition in his possession. The police also seized a quantity of cocaine, cash and a digital scale during their investigation. The applicant’s record contained several convictions for serious violent offences and for failing to comply with a recognizance. The applicant also filed evidence that he suffered from severe asthma: at para. 7.

[71] Schreck J. ultimately concluded that the combination of the proposed plan of supervision which included electronic monitoring and the grave implications of Covid-19 for persons in custody, justified the release of the applicant on strict conditions.

[72] However, there are differences between J.R. and the instant case. The applicant in J.R. suffered from asthma which Schreck J. noted at para. 49 is a “medical condition which places him at increased risk if he contracts Covid-19”. Schreck J. noted at para. 50 that the applicant’s health was relevant in his analysis of the risk while in custody though “not dispositive of the matter”.

[73] Second, Schreck J. placed some significance on the passage of time since J.R.’s arrest in September 2019. He noted that because of the closure of the courts because of Covid-19 and the backlog the court will have to contend with, J.R. would be required to spend additional time in custody pending trial and that was a relevant factor to be considered on the tertiary ground: at para. 52.

[74] This case is of more recent vintage than J.R. Second, Mr. Rajendram does not have a medical condition that places him at increased risk if he contracts the virus. Third, in considering whether the passage of time is a factor on the tertiary ground, consideration should be given to the sentence the applicant will receive if he is convicted of the offence of discharging a weapon. Fourth, Schreck J. noted at para. 19 that the applicant had been subject to electronic monitoring in the past and had not breached any of his conditions. Finally, he also noted at para. 19 that there was “no suggestion that the Justice of the Peace, who described the sureties as “solid” would not discharge their supervisory obligations for any reason. I am unable to arrive at a similar conclusion in this application.

[75] For the above reasons, the case of J.R. does not persuade me that I should release Mr. Rajendram on either the secondary and/or the tertiary ground.

[76] In my view, a reasonably informed person who is aware of the presumption of innocence, the right to be granted reasonable bail, the nature of the allegations, the text messages, Mr. Rajendram’s criminal record, his lack of any pre-existing medical problems and the blunted impact of Covid-19 at the MCC, would conclude that Mr. Rajendram’s detention is necessary in the public interest.

[77] Accordingly, the application is denied.

André J.

Released: May 22, 2020