Court File and Parties

Court File No.: CR-20-00000169/000R Date: 2020-06-30 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Dwayne Gordon

Counsel: M. Gharabaway, for the Crown R. Gadhia, for the Applicant

Heard: June 18 and 24, 2020

Before: M.A. Code J.

Reasons for Judgment

A. Overview

[1] The Applicant Dwayne Gordon (hereinafter, the Applicant or Gordon), brought an Application pursuant to s. 520 of the Criminal Code, seeking to review the March 19, 2020 decision of Justice of the Peace W. Agnew. In that decision, the Justice of the Peace denied Gordon bail on four separate Informations alleging a number of offences. It was a reverse onus bail hearing because of s. 515(6)(a)(viii) of the Criminal Code (Gordon was charged with a s.87 offence and a s.95 offence and he had a prior firearms prohibition order). The Justice of the Peace was not persuaded that Gordon had met his onus on the primary grounds.

[2] I heard the bail review Application by teleconference, with the consent of the Applicant, due to the closure of the Court House during the Covid-19 pandemic. At the end of the hearing, I reserved judgment. These are my Reasons for Judgment.

B. Facts Relating to the Offences Charged

[3] The four sets of charges against the Applicant can be summarized as follows (in their chronological order):

i. On May 4, 2017, it is alleged that Gordon and his common-law partner Marina Genovese attended at the Nordstrom store in the Yorkdale Mall. They were helped by a sales associate and they purchased a number of items, totalling $4294. They paid with U.S. cash in large $50 and $100 denominations. It is alleged that Gordon was the active participant as he selected the items and produced the cash, while Ms. Genovese simply stood by. Later that evening, a Nordstrom loss prevention officer discovered that the cash used by the purchaser was counterfeit. The police were called and video surveillance footage from that day was reviewed. Images were found of Gordon and Ms. Genovese walking in the shopping mall and towards a parked car around the time of the counterfeit sale. It was determined that the car had been rented by Ms. Genovese’s mother. The identification of Gordon and Ms. Genovese, as the two purchasers who paid with U.S. counterfeit cash, is based on the sales associate’s review of the surveillance video. The five offences charged in relation to this incident are as follows: fraud under; possession of property obtained by crime; possession of counterfeit; uttering counterfeit; and breach of probation. The latter charge is due to the fact that Gordon was on probation at the time. He had been convicted of dangerous driving on February 22, 2017 and placed on probation for one year by Shamai J., including a requirement to keep the peace and be of good behaviour. As a result of their investigation, the police contacted Gordon and Ms. Genovese and arrangements were made for them to surrender. Ms. Genovese did surrender as arranged, on June 12, 2017, but Gordon did not surrender on June 15, 2017, which was the date arranged by his lawyer. An arrest warrant was obtained. The charges against Ms. Genovese were subsequently withdrawn by the Crown on the basis of her apparent lack of participation in the offences.

ii. On June 29, August 1 and August 14, 2017, it is alleged that Gordon failed to report to his probation officer. In addition to the one year probation order made by Shamai J. on February 22, 2017, referred to above, there was a separate one year probation order made a month earlier by Wong J., on January 18, 2017. On that date, Gordon had been convicted of a separate incident of dangerous driving and flight while pursued by the police. Wong J. imposed a six month conditional sentence and one year probation. Gordon would have been serving the conditional sentence at the time of the above May 4, 2017 offences at the Nordstrom store. He reported to his probation officer a month later on June 6, 2017, but then failed to report on the above three subsequent dates in late June and early August 2017. These three dates were all after June 15, 2017, which was the date that Gordon’s lawyer had arranged for him to surrender on the Nordstrom counterfeit charges. A second arrest warrant was obtained.

iii. Between July 1, 2019 and January 18, 2020, Gordon is alleged to have committed a number of much more serious offences. They all relate to a 21 year old woman named G.L. (there is a s. 486.4(1) publication ban relating to her identity). She alleges a six month course of conduct involving Gordon during which she worked as an exotic dancer at a club in downtown Toronto known as “For Your Eyes Only.” In the early stages of her relationship with Gordon, they were romantically involved. A business relationship was eventually agreed to in which she paid Gordon all of her earnings, he paid all of her expenses and provided security and transportation, and she received an intermittent “allowance” from him of $100. This arrangement eventually became violent and abusive, according to G.L.’s account. Gordon would show her a loaded handgun that he brought to her residence and that he once pointed at her. He choked her into unconsciousness on another occasion and slapped her face without leaving any marks. There were more serious assaults on two occasions in September 2019, once when G.L. became involved in an argument and once when she did not want to go to work. The assaults included pulling out her hair, punching her in the face, kicking her in the head, threatening her, and driving her around in his car for a couple of hours while “tormenting” her. She took photographs of her injuries on both occasions (which were filed as exhibits on the bail hearing). She would transfer her earnings to Gordon, whenever she was paid by way of e-transfer, by sending the e-transfer to an email address for Marina Genovese (who she understood to be Gordon’s “baby mother”). When G.L. told Gordon that she wanted to leave their relationship, he told her that she would have to pay him $50,000 in order to “buy her freedom.” The culminating event in this relationship occurred on January 18, 2020. Earlier in the evening, Gordon had driven G.L. and another young woman to two separate bars in Yorkville (I will refer to this second woman’s identity in more detail below). At about 1:30 a.m., the two women took an Uber to the Shangri-La Hotel in downtown Toronto, as G.L. had arranged to meet a man at this hotel at 1:45 a.m. Gordon began calling G.L. to ask if she was being paid by the man she was meeting. G.L. hung up on Gordon and did not answer his subsequent calls. It appears that Gordon then called the second woman as she told G.L., “He’s here. Let’s go.” The two women walked out to the valet area at the back of the Shangri-La Hotel, where Gordon was waiting in a black Jeep Grand Cherokee. G.L. approached the back door on the passenger side but Gordon told her to get in the front, which she did, while the second woman got in the back. Gordon drove off and began hitting G.L. about six times in the face and head. She began to bleed from the nose and head. She “tucked down towards the car door”, opened the car door, and tried to escape while the car was still moving. Gordon grabbed her and stopped the car. There may have been some damage to the Jeep due to these events. By this point, G.L. was screaming. Gordon told the second woman to get out and to get G.L. back in the car. At this point, G.L. was able to escape. Gordon initially ran after her but then stopped and ran back to the car, as there were apparently two men at the corner. These two men called 911 and waited with G.L. until EMS arrived. G.L. was taken to the hospital where she received a number of stitches in order to close a serious laceration to the back of her head. She also had a bloody nose. Photographs of these injuries were filed as exhibits on the bail hearing. There is a substantial amount of independent corroboration of G.L.’s above account of this incident, as follows: a black Jeep Grand Cherokee was eventually found and seized; it was leased by Roberta Marshall (who was identified by G.L. as a dancer at “For Your Eyes Only”) and its lease/ownership was transferred to Marina Genovese on February 6, 2020; G.L.’s blood was found on the armrest of the Jeep (as a result of DNA testing carried out by the C.F.S.); the police seized the Jeep from an auto repair shop on February 11, 2020 and the operator of the shop advised that “Dwayne Gordon” had the Jeep towed and instructed the shop to repair damage to the rear driver’s side; the next day, February 12, 2020, Ms. Gadhia’s law firm contacted the police, advised that the firm was being retained by “Dwayne Gordon”, and inquired about the return of the seized Jeep (and a Mercedes) on behalf of Ms. Genovese; police photographs of G.L. and her medical treatment at the hospital all confirm her injuries; video surveillance at the Shangri-La Hotel shows two women approaching a waiting black Jeep, the back door was initially opened by G.L. while the second woman opened the front door (both on the passenger side), they paused and there appears to have been something said, G.L. then moved to the front door and got in while the second woman moved to the back door and got in, and the Jeep then drove off; and finally, it is anticipated that the 911 call and the arrival of EMS will confirm the time, place and manner of G.L.’s escape from the Jeep (these reports have been requested by the Crown but they have not yet been received). G.L. gave two tape-recorded statements to the police that night, both before and after her treatment at the hospital. She was cautioned and placed under oath prior to the first statement, in accordance with the practise recommended in R. v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.). These statements set out the above account of the allegations. As a result of the above events on January 18, 2020, a third arrest warrant was obtained for Gordon. There are 13 separate charges arising from the above alleged course of conduct, as follows: 3 counts of common assault; pointing a firearm; possession of a loaded handgun; assault by choking or strangling; 2 counts of assault causing bodily harm; forcible confinement; receiving a material benefit from sexual services; receiving a material benefit from trafficking in a person over the age of 18; threatening bodily harm; and exercising control for the purpose of facilitating the obtaining of sexual services for consideration.

iv. On February 10, 2020, some three weeks after the above events, Gordon was arrested by police on the three outstanding warrants. He had just exited a black Mercedes leased by Marina Genovese. Two women accompanied him in the car (named Akilah Campbell and Quiana Perkins-Petris). It was Akilah Campbell who had been working with G.L. as exotic dancers at “For Your Eyes Only” and who had first introduced G.L. to Gordon. I will make further reference to Ms. Perkins-Petris below, as she provided a sworn and cautioned statement to the police. Upon his arrest, Gordon was searched. In his inner jacket pocket, the police found a clear ziplock baggie containing 7 ½ pills or 4.34 grams of Oxycodone. They also found a wallet with a B.C. driver’s licence in the name of “Jakob Amsler”. The photograph on the B.C. driver’s licence was of Gordon. He is charged with simple possession of a Schedule One substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act, as a result of this final incident.

C. Facts Relating to the Applicant

[4] The evidentiary record in relation to Gordon’s antecedents is limited. He did not testify at the original bail hearing, his counsel did not attempt to read in any facts about his antecedents (based on counsel’s investigations), and Gordon did not provide an affidavit nor did he testify on the present bail review Application. The Crown asserted, when reading in the facts at the original bail hearing, that Gordon is 33 years old, he was born in Jamaica, he is a Canadian citizen, and he is “unemployed to the knowledge of the Crown.” Defence counsel did not dispute these asserted facts.

[5] Some further evidence about Gordon’s antecedents emerged from the proposed sureties who testified at the original bail hearing and on the bail review Application. The only witness who testified at the original hearing was Caroline Gordon. She is 48 years old, she is Gordon’s older sister (there are nine siblings in the family), she has two university degrees, she works as a social worker for the CAS in Brantford, and she has no criminal record. She appears to be a responsible and trustworthy individual. I will refer to her further below, when discussing the Applicant’s plan of release. The only evidence that she gave about Gordon’s antecedents was that he once came to live with her in Brantford for three weeks, for his own safety, because someone was shooting at him while he was living with his mother in Mississauga. Otherwise, Gordon always lived with his mother or with his current girlfriend, Marina Genovese, who both live in Mississauga. The older sister Caroline also testified that Gordon’s driver’s licence had been suspended for a “number of years”, that he had been involved in a “domestic violence situation” with a prior girlfriend named “Latrice”, that his mother had been Gordon’s surety “several times”, that her mother’s “situation with him [Gordon] was challenging”, and that there had been breaches of his terms of bail when his mother was his surety. In terms of Gordon’s work history, Caroline agreed with the Crown’s assertion that Gordon was currently unemployed. She testified that Gordon had previously worked as a barber but the barber shop “went out of business” and so “he’s not working as a barber anymore.” Caroline had tried without success to encourage him to go to George Brown College, in order to train as a chef. She also tried to encourage Gordon to get a part time job, “since you’re not doing barber anymore”. She was “trying to get him a career path like all the other siblings…to help him change…to a different way of life.”

[6] In G.L.’s statements to the police, she asserted that Gordon did not work except as a “pimp’, that he had three “girls” working for him, and that he owned a dark grey Ferrari, a black Jeep, and a Chevy Tahoe. His older sister Caroline testified at the original bail hearing that she had no knowledge of these matters and she wondered how Gordon could pay for three cars.

[7] On the bail review Application, Gordon’s mother Patricia Gordon testified. She gave some additional evidence about her son’s antecedents, in particular, that he had lived with Marina Genovese for the past ten years in a condominium complex on Absolute Avenue in Mississauga. She also testified that Gordon supports himself by working as a barber. He had previously worked in a barber shop but after the shop closed he began to work as a “mobile barber”. He was prohibited from driving but Marina “always drives him” to his haircutting appointments. Patricia Gordon had never seen her son driving and he would deny driving when he was charged with various driving offences. As I will explain below, Patricia Gordon was an unreliable witness.

[8] Marina Genovese provided an affidavit on an earlier bail review Application, when she was being proposed as a surety. It was part of a larger exhibit filed before me. She works part time as a personal trainer and is a student enrolled at George Brown College in the practical nursing program. She is Gordon’s “common-law partner”, they have a six year old son, and Gordon provides “financial support” and takes a “large role” in parenting their son. Ms. Genovese began dating Gordon eight years ago and they have “spent time at my residence” but they have “never lived together”, contrary to Patricia Gordon’s and Caroline Gordon’s evidence. Ms. Genovese’s affidavit is silent as to Gordon’s employment history, his source or sources of income, whether he has ever worked as a “mobile barber”, and whether she has ever been his driver. She lives in Unit 406 at 90 Absolute, Mississauga. She did not testify on the present bail review Application.

[9] A third witness who testified on the Application is a new proposed surety, Dawn Drakes-Jones. She is 26 years old and has been a good friend of Gordon’s for five years. She previously worked in the sex trade but now works as a beautician from her home. She confirmed the evidence of Gordon’s mother to the effect that Gordon had been supporting himself by working as a “mobile barber”, prior to his arrest in February 2020. Ms. Drakes-Jones would drive Gordon on occasion to his haircutting appointments.

[10] Gordon’s medical records from the Toronto South Detention Centre were filed on the bail review Application. They indicate that Gordon has been prescribed Percocet for the past seven years. Counsel advised that this prescription was to manage pain resulting from a leg injury. The Detention Centre records also indicate that Gordon receives an inhaler twice daily, although he did not report any history of shortness of breath due to asthma. The affidavits of both his mother and his older sister confirmed that Gordon requires an inhaler for asthma.

[11] The only other source of information in the record concerning Gordon’s antecedents is the material relied on by the Crown. It concerns Gordon’s criminal record and can be summarized as follows:

i. On November 21, 2002, when he was about to turn 16 years old, Gordon was convicted in Youth Court of assault and uttering threats. He was sentenced to one year probation.

ii. On March 16, 2007, at age 20, Gordon was convicted of simple possession of a C.D.S.A. scheduled substance. He was sentenced to an $800 fine.

iii. On February 4, 2013, at age 26, Gordon was convicted of failing to comply with a recognizance. He received a suspended sentence after seven days in pre-trial custody.

iv. On August 22, 2013, at age 26, Gordon was convicted of assault. He served six months in pre-trial custody and received a suspended sentence, one year probation, and a 10 year firearms prohibition. This was a relatively serious offence and there is some evidence in the record concerning the relevant facts, although it is not known exactly which facts were admitted when Gordon pleaded guilty. The victim of the assault, Latrice Williams, is the mother of one of Gordon’s children. They had been living with Gordon’s mother but had recently separated because they were fighting. Ms. Williams had gone to live with her grandfather. Gordon was alleged to have forced his way into her new residence, breaking the door frame. He then grabbed Ms. Williams by the hair and dragged her to his car, causing a clump of her hair to fall out.

v. On January 18, 2017, at age 30, Gordon was convicted of dangerous driving and flight while pursued by a police officer. He received a six month conditional sentence and one year probation. This is the matter that was before Wong J., referred to at para. 3 above, that eventually led to the present breach of probation charge. It was a relatively serious offence and it was the subject of some evidence at the initial bail hearing. The facts alleged were that on September 11, 2014, Gordon was driving a Porsche in downtown Toronto when he was pulled over by an officer in a marked police cruiser, due to certain observations of his driving. At this point, Gordon’s driver’s licence had been suspended since 2008, due to unpaid fines. As the officer began to investigate, Gordon drove away “at a high rate of speed, narrowly missing a cyclist.” He drove north on Bathurst Street from the lakeshore district, “dangerously weaving his vehicle around other vehicles and streetcars, driving into oncoming traffic…then…onto the sidewalk, narrowly missing pedestrians as they scrambled to get out of the way.” The officer lost sight of the car at this point. The police identified the registered owner of the Porsche as Jessica Cassidy and the driver as Gordon. He surrendered to the police on September 23, 2014 and was released on bail with a condition that he not be in the front seat of a motor vehicle.

vi. On February 22, 2017, at age 30, Gordon was convicted of a separate dangerous driving offence before Shamai J. This was one month after the above conviction before Wong J. for a separate but similar offence. Gordon received a suspended sentence and one year probation. Once again, it was a relatively serious offence and it was the subject of some evidence at the original bail hearing. The relevant events took place on November 15, 2015, which was 14 months after the events relating to the September 11, 2014 dangerous driving incident (summarized above). Gordon was still unlicensed and he was now subject to a bail condition prohibiting him from driving. The facts alleged were that he was driving a Porsche eastbound on Lakeshore Blvd. in Toronto, in heavy late afternoon traffic. The licence plate validation sticker on the Porsche was expired. Officers in a marked police cruiser approached Gordon when the cars came to a stop in traffic at a red light. The officers requested Gordon’s licence, ownership, and insurance. Some words were exchanged until “suddenly, without warning, [Gordon] set his vehicle in motion…mounted the centre median and drove eastbound in the westbound lanes of Lakeshore Blvd., almost striking another vehicle…through the intersection against a red light, turning left to go northbound.” The officers “were able to stand clear and avoid being struck” and they did not pursue Gordon. The registered owner of the Porsche was identified and was contacted by the police. A lawyer for Gordon then contacted the police and arrangements were made for him to surrender. He never did surrender. He was eventually arrested some four months later, on March 23, 2016, and was released after a bail hearing.

[12] In addition to the above convictions, Gordon has been on bail for a number of other charges, including an apparently serious drug trafficking matter that was stayed in 2014.

[13] There are also three more recent allegations that have not resulted in convictions (or any charges in two of these cases) but that were the subject of evidence that is in the record on the bail review Application. These three further matters are as follows:

i. On November 14, 2019, it is alleged that Gordon was at a gas station in Etobicoke, driving a Bentley and purchasing gas in the early morning hours. Police on general patrol noticed him acting somewhat suspiciously, as he walked past and got into the Bentley after paying for gas. He then “accelerated at a high rate of speed” away from the gas station. The officers followed and initially lost contact with the Bentley but then saw it again on a nearby side street. The officers followed the Bentley while it “made a lane change…without signaling…then performed a quick right turn on a red light, not stopping on the red.” The Bentley proceeded north on Kipling Avenue, “travelling at high speed”, estimated “in excess of 100 km/hr in a 60 km zone.” The Bentley was then observed “running” four consecutive red lights on Kipling Avenue before turning left at Bloor Street, as the police car followed. At two of these four intersections there were “cars waiting at the lights”, which “could have resulted in a serious collision” when the Bentley went through the red lights. The police abandoned the pursuit at Bloor Street. Investigation revealed that the Bentley was leased at the time to Marina Genovese, the present girlfriend/common-law partner of Gordon. The police obtained a good quality surveillance photograph of the driver, while he was paying for gas at the gas station. The photograph arguably resembles Gordon. A decision is being made as to whether charges will be laid in relation to this incident.

ii. On March 18, 2020, the day before the original bail hearing, the complainant G.L. contacted the police and provided a further statement. She had received information from “her friend Claudia” about two recent incidents. In the first incident, Claudia had been told by “Chelsey” that “a female entered the Brass Rail looking for [G.L.]. The unknown female alluded that she was looking for [G.L.] and that there was a $30,000 hit on her.” In the second incident, Claudia’s brother had attended a party in Toronto “over the weekend”. At the party, he “overheard a group of girls conversing. He overheard one of the girl’s remarks that ‘G.’ got her guy arrested three weeks prior for human trafficking and that they should go to Ottawa to murk [murder] her.” The police proceeded to discuss a “safety plan” with G.L., who believed that Gordon knows the area where she is located. It can be seen that G.L.’s above account is double hearsay, although the two incidents may support each other if they both imply the existence of a threat or effort to kill G.L. There is no information in the record as to whether the police have followed up on this aspect of the investigation, since G.L.’s March 18, 2020 statement, although the investigation is said to be ongoing.

iii. On June 9, 2020, Gordon and his cell-mate at the Toronto South Detention Centre were jointly charged with possession of cannabis for the purpose of selling and with simple possession of illicit cannabis, contrary to ss. 8 and 9 of the Cannabis Act. These charges resulted from a search of their cell on June 1, 2020. Gordon and his cell mate were both present at the time of the search. Correctional officers found a “marijuana slug visible in a shoe inside the door” and found a second “marijuana slug inside a cereal box on the shelf” inside the cell. A third “marijuana slug” was located “inside another cereal box inside the bag” of Gordon’s cell-mate. Gordon has been granted bail on these most recent charges.

D. The Plan of Release

[14] The Applicant’s plan of release has evolved and it is now quite different from the plan of release proposed at the initial bail hearing. As noted previously, the initial bail hearing before Justice of the Peace Agnew took place on March 19, 2020. Gordon was represented by experienced counsel who proposed a plan of release involving one $20,000 surety, namely, the Applicant’s older sister Caroline. The proposal was that the Applicant would reside at Caroline’s home in Brantford under her constant supervision. As noted previously, Caroline is clearly a responsible person who is of good character. She is 48 years old, she has two university degrees, she has a full-time job as a CAS social worker, she has no criminal record, she has never been the Applicant’s surety, she has a young daughter, and she forcefully testified that she would not tolerate any breaches or any hint of a breach by the Applicant as this would put her only asset (her home) at risk.

[15] There were two main weaknesses in this initial proposed plan. First, Caroline was the sole surety and she would have to leave her home, if and when she was no longer working from home, and whenever she needed to take her daughter to appointments or needed to go shopping or to church. If there was to be constant supervision of the Applicant, he would have to accompany Caroline on all of these outings. Second, Caroline had not had a lot of contact with the Applicant in the last few years and did not know a lot about his associates and activities. However, she and counsel both made a virtue of this latter potential weakness in the plan by stressing that the Applicant’s previous sureties (his mother and Ms. Genovese) had not been successful. As counsel put it, “one of the reasons that [Caroline] is being proposed as surety rather his mother is because she [the mother] signed up for him before…And you’re aware that she failed to comply with that bail…And that’s why [Caroline] is being proposed as the main surety…Maybe Mom wasn’t very good. She obviously wasn’t. She didn’t make sure he didn’t [sic] comply.” Caroline agreed with counsel’s above propositions when she testified. Her evidence was that, “My Mom’s situation with him [the Applicant] was challenging. However, I live in the Brantford area. I have a different mind-set and standard, I think, from my Mom…it’s her son…her situation with Dwayne was very different…I would ensure that if he breaches, my number one go-to, safety first, would be to call the police.” Unlike her mother, Caroline also appeared to have no illusions about the Applicant’s apparent failings, noting that she (Caroline) told him to “smarten up” and “take up a course in culinary arts” at George Brown College and “get…a career path like all the other siblings.” She also told him to “pay the unpaid fines” so that he could obtain his licence and drive legally. Her goal was “to help him change his trajectory to a different way of life” by taking him “out of an environment” and putting him “in a new environment” that would be under her control and guidance in Brantford.

[16] After the initial bail hearing, the Applicant changed counsel. His present counsel, Ms. Gadhia, filed a bail review Application dated May 14, 2020 with a new plan of release. The older sister Caroline was no longer the sole surety and was no longer the residential surety. She has, unfortunately, developed a medical condition of some significance and it requires major surgery. She could no longer act as the main surety or as the residential surety. However, she was still willing to assist with supervision, by traveling to the new proposed residence in Mississauga when she can, and by remaining a surety in the reduced amount of $5000. The new proposed plan was that the Applicant’s mother Patricia Gordon would be the residential surety, at her home at 6107 Prairie Circle in Mississauga, and that the Applicant’s girlfriend Marina Genovese would move with her son to the mother’s home and become a joint residential surety. A motion-activated security camera connected to the three sureties’ cell phones would be installed at the mother’s home. The two residential sureties would be in the amounts of $10,000 (Patricia Gordon) and $20,000 (Marina Genovese).

[17] It can be seen that this new or second plan of release increased the number of sureties from one to three and increased the total monetary amount from $20,000 to $35,000. The new plan arguably provided more supervision of the Applicant by more people and, to some extent, by cameras. However, the quality of the supervision was diminished. As will be explained below, Patricia Gordon is unreliable and has proved to be an ineffective surety for her son. In addition, Marina Genovese has repeatedly been implicated as an enabler of her boyfriend’s alleged criminal activities (whether wittingly or unwittingly). Finally, the entire premise of the initial plan of release has been lost, namely, getting the Applicant out of Mississauga and placing him under the direct control and supervision of his older sister who lives in Brantford and who is a responsible individual.

[18] On June 12, 2020, the Applicant’s present counsel filed a new bail review Application, which is the one that proceeded at the hearing before me. It put forward a third plan of release. The Applicant’s mother Patricia Gordon remains the residential surety at her home in Mississauga in the increased amount of $20,000. She would install a GPS ankle bracelet monitoring system. She has become the sole residential surety because Marina Genovese has now withdrawn as a proposed surety. It was explained that Ms. Genovese could no longer move with her son to Ms. Gordon’s home because this would involve changing her son’s school and it would jeopardize a speech therapy program in which the son was enrolled. Ms. Genovese is still willing to help but not as a surety. The older sister Caroline is still willing to continue in the same assisting role that was proposed in the second plan (summarized above). Finally, a new surety, Dawn Drakes-Jones, has now been added in order to further assist Ms. Gordon with supervision of the Applicant. Ms. Drakes-Jones is 26, she has a daughter, she previously worked in the sex trade, and she now works from her home as a beautician. She has known the Applicant Gordon as a close friend for five years. She would be a surety in the amount of $5000 and would make phone calls and visit Ms. Gordon’s home “at least once a week” in order to “ensure that all bail conditions are being followed.”

[19] This third and final proposed plan of release has many of the same advantages and disadvantages of the second plan of release (already described above). Its most significant feature is that Patricia Gordon has now become the sole residential surety. As will be explained, this is a major weakness in the latest plan of release.

E. The Standard of Review

[20] The now well-known standard of review at a s. 520 hearing, post- St. Cloud, is that there must be an error in law, a “clearly inappropriate” decision, or “new evidence” amounting to a material change in circumstance, before this Court can intervene and conduct a fresh bail hearing. See: R. v. St. Cloud (2015), 2015 SCC 27, 321 C.C.C. (3d) 307 at paras. 121 and 138-9 (S.C.C.); R. v. Dang, 2015 ONSC 4254 at paras. 28-37, per. Trotter J. as he then was.

[21] The Applicant’s counsel, Ms. Gadhia, submitted in written argument that Justice of the Peace Agnew made three errors in law. These alleged errors were not pursued during oral argument. In my view, none of them are persuasive. I do not intend to address them because I am satisfied that there is a material change in circumstance. Accordingly, the Applicant is entitled to a fresh assessment in this Court as to whether his detention is justified on any of the three grounds set out in s. 515(10).

[22] The Applicant submitted that there were two material changes in circumstance, based on fresh evidence that was not available at the time of the initial bail hearing. First, the Covid-19 pandemic was in its very early stages on March 19, 2020, when the initial bail hearing was held. After over three months experience with this new virus, both inside the jails and outside the jails, much more is now known about its associated risks and about its relevance to bail decisions. Second, the plan of release has changed significantly. Instead of one surety who works at a full-time job, the plan now involves three sureties, a larger monetary amount, ankle bracelet and camera monitoring, and a residential surety who does not work.

[23] I am satisfied that the above two developments, in combination, meet the St. Cloud test for permitting this Court to review the original bail decision. In terms of the Covid-19 factor, it was undoubtedly raised by both counsel at the initial bail hearing and it was addressed by the Justice of the Peace. However, the March 19, 2020 bail hearing took place during the first week in which courts were beginning to close, due to the pandemic, and there had not yet been any cases of the virus spreading into the jails. Accordingly, the Crown was able to forcefully submit that the Covid-19 pandemic “is not a proper consideration” at a bail hearing. That is no longer the law. In terms of the new plan of release, I have already summarized the evolution of the proposed plan of release in this case. There are real questions as to whether the new plan is better or worse than the original plan, which I will address below, but it is undoubtedly a fundamentally different plan. The Applicant seeks to persuade the Court that it is a better plan, which will depend on my ultimate findings of fact.

[24] It is important to remember that the St. Cloud test for reviewing a bail decision, on the basis of “new evidence” amounting to a “material and relevant change in the circumstances of the case”, is derived from the Palmer test for the admissibility of “fresh evidence” on appeal. The critically important fourth criterion in that test is whether the new evidence “if believed… could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result” [emphasis added]. In St. Cloud, the Court reiterated this aspect of the test stating, “the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)” [emphasis added]. In other words, at this preliminary stage (analogous to an appellate court deciding the admissibility and not the ultimate weight or effect of “fresh evidence”), I am only deciding whether to proceed with a review of the bail decision on the basis of “new evidence”. I am not yet conducting the final weighing and balancing of the new evidence, in the context of all the other evidence, and determining whether the new evidence would or should affect the result. See: R. v. Palmer and Palmer (1979), 50 C.C.C. (2d) 193 at 205 (S.C.C.); R. v. St. Cloud, supra at paras. 129-139; R. v. Reeve (2008), 2008 ONCA 340, 233 C.C.C. (3d) 104 at paras. 66-7 and 71-2 (Ont. C.A.); Reference Re Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 at paras. 99-100 (Ont. C.A.). Taking that threshold approach to the requirement of a “material change in circumstance”, I am satisfied that the “new evidence” is sufficient to entitle the Applicant to a fresh bail hearing.

F. Analysis

i. The primary grounds

[25] As noted previously, the Justice of the Peace detained Gordon on the primary grounds. In this regard, she was particularly troubled by Gordon’s history of flight from the police, his failure to surrender on outstanding warrants after arrangements to surrender had been made by counsel, the gravity of the most recent offences and the related likelihood of a lengthy sentence, his possession of false identification on arrest, and certain weaknesses in the plan of release.

[26] I agree with the Justice of the Peace that the above factors all give rise to concerns on the primary grounds. However, in my view, the above factors or considerations carry greater weight in relation to the secondary grounds, which I will discuss below. It is not unusual at a bail hearing for the same set of circumstances to be relevant to all three grounds for detention. As McLachlin C.J.C. put it in R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 at para. 30 (S.C.C.), speaking for the majority:

The same facts may be relevant to all three heads. For example, an accused’s implication in a terrorist ring or organized drug trafficking might be relevant to whether he is likely to appear at trial, whether he is likely to commit further offences or interfere with the administration of justice, and whether his detention is necessary to maintain confidence in the justice system. But that does not negate the distinctiveness of the three grounds.

[27] In relation to the primary grounds – ensuring attendance in court – the above factors are troubling, but they have to be balanced against a number of other factors that are more favourable to Gordon. In particular, he has strong roots in Canada based on his own history in this country and his connection to family, friends, a relatively long-term girlfriend, and a child. In addition, once arrested and released on bail, he has always attended court in the past. The Justice of the Peace considered these more favourable factors but simply gave them less weight in the ultimate balancing than I would. When all the relevant factors are weighed and balanced, I am satisfied that Gordon has met his onus on the primary grounds.

[28] Before leaving the primary grounds, I should note that my own weighing and balancing of the relevant factors does not mean that the Justice of the Peace’s different weighing and balancing of the relevant factors was “clearly inappropriate.” As the Court repeatedly stressed in R. v. St. Cloud, supra at paras. 114, 116 and 121, the bail decision is “discretionary” because, “In this balancing exercise, the justice must for the most part make findings of fact and assess the weight of those findings to determine whether detention is justified…[by analogy] an appellate court cannot interfere [on a sentence appeal]…simply because it would have weighed the relevant factors differently…The reviewing judge [on a bail review] therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.” Also see R. v. Dang, supra at para. 48, per. Trotter J.

[29] In conclusion on the primary grounds, I have arrived at a different result not because the Justice of the Peace made a “clearly inappropriate” decision, but because I am now conducting a fresh bail hearing after admitting “new evidence”.

ii. The secondary ground

[30] Justice of the Peace Agnew had real concerns on the secondary ground. She stated, “On the secondary grounds, is there a substantial likelihood of re-offence? Yes, there is.” She also stated, “I do have public safety concerns and the public safety concerns I have obviously are for the complainant.” However, she went on to note that “all of the charges are so different…vastly different from each other. So if they were all crimes of violence, then I would be more confident to say here is an individual, who there is a substantial likelihood that he will continue to assault…that he would continue to exercise care and control over women or point a firearm at somebody, if there was a history of that. There is not.” In the result, she concluded “So on the secondary grounds, on a very narrow balance of probabilities, I find that you have met your onus.”

[31] Once again, I would weigh and balance the relevant factors differently than the Justice of the Peace, after taking into account many of the factors that she relied on in relation to the primary grounds. In addition, I am able to take into account the further evidence that is now available relating to the strength of the Crown’s case on the most recent charges. Those charges, relating to G.L., are by far the most serious charges against Gordon. The Justice of the Peace repeatedly took the view that she could not evaluate the strength of the Crown’s case, stating: “On the allegations from July of 2019 through January of 2020, I do not know how strong their case is…and without knowing how strong the Crown’s case against you is…” I am not in the same position as the Justice of the Peace in relation to this important issue, in light of the independent evidence corroborating G.L. that is now in the record.

[32] In my view, the most relevant factors or considerations relating to the secondary ground are the following:

i. First, Gordon’s criminal record and his history when released on bail during the last ten years is cause for concern. In summary, that history began with the relatively serious assault on his girlfriend Latrice Williams which took place on September 30, 2010. Gordon spent six months in pre-trial custody for this offence and then, while on bail, he was convicted of failing to comply with his recognizance on February 4, 2013. He was convicted of the assault on Ms. Williams on August 22, 2013 and was placed on probation for one year. Just over one year later, on September 16, 2014, very serious charges of possession for the purpose of trafficking in heroin, oxycodone, cocaine, opium, ecstasy, and crystal methamphetamine were stayed. It is unclear how long Gordon had been on bail for these drug offences, and whether that bail overlapped with his bail on the assault charge, but the two sets of charges appear to have been proximate in time. On September 11, 2014, five days before the above drug charges were stayed, and therefore while Gordon was still on bail for those charges, he committed serious offences of dangerous driving and flight while pursued by the police, as described above. His driver’s licence was suspended at the time of these offences and had been since 2008. He surrendered to the police on September 23, 2014, one week after the drug trafficking charges were stayed. He was released on bail. Some 14 months later, on November 15, 2015, Gordon was again charged with serious offences of dangerous driving and flight while pursued by the police, as described above. He was in violation of his terms of bail, which prohibited him from driving. In addition, he was still unlicensed. His lawyer arranged for his surrender on these new charges but he failed to surrender. He was arrested four months later, on March 23, 2016. He was held in custody before being released at a bail hearing. These two outstanding sets of dangerous driving charges were resolved with guilty pleas on January 18 and February 22, 2017, resulting in a six month conditional sentence and one year probation. While still serving the conditional sentence, Gordon is alleged to have committed the May 4, 2017 counterfeit and fraud offences at the Nordstrom store. His lawyer arranged for his surrender but he did not surrender. He is then alleged to have committed the breach of probation offence on June 29, August 1, and August 14, 2017. Finally, he is alleged to have committed the very serious offences relating to G.L. between July 1, 2019 and January 18, 2020. He was arrested for all the outstanding charges on February 10, 2020, while in possession of oxycodone. In other words, Gordon has continually been in trouble with the law for the last 10 years, committing a number of serious offences that endanger the public, being released on bail, violating his terms of bail, and serving time either in pre-trial custody or on conditional sentence.

ii. Much of Gordon’s past conduct shows a blatant defiance of the law and infers that he is ungovernable. He has repeatedly fled from the police, failed to surrender pursuant to arrangements made by his lawyer, drove recklessly and dangerously while unlicensed, carried false identification, and failed to report to probation. This pattern of conduct shows a persistent determination to avoid the constraints of the law.

iii. The most recent charges against Gordon are the offences involving G.L. They are undoubtedly the most serious offences that Gordon has ever been charged with and they represent an escalation in Gordon’s pattern of offending. As I will explain below, the Crown’s case in relation to the G.L. charges appears to be strong. The gravity of this kind of offence, when the Crown’s case is strong, gives rise to concern on the secondary ground because of its callous, brutal, and professional nature. See: R. v. Gulyas 2013 ONCA 68, [2013] O.J. No. 417 at paras. 7-11, per. MacPherson J.A. (C.A.); R. v. Rondeau (1996), 108 C.C.C. (3d) 474 at 478-80, per. Proulx J.A. (Que. C.A.); R. v. R.H. 2006 ONCJ 116, [2006] O.J. No. 1447 at para. 29, per. Trotter J. (O.C.J.). In his leading text, The Law of Bail in Canada, 3rd Ed. 2017 [Thomson Reuters], at p. 3-21, Justice Trotter explained the logic of the above line of authority, as follows:

Rondeau links the nature of the offence and the strength of the prosecution’s case to the secondary ground. The allegations respecting the index offence(s) are relevant to the accused person’s future dangerousness. The strength of the Crown’s case determines the weight that may be attributed to the index offence in this assessment. Although the accused person is presumed innocent, this cannot prevent a court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability. [Italics in the original].

iv. Gordon has no recent work history and no lawful source of income that could explain driving a Porsche, a Bentley, a Mercedes, and a Jeep Grand Cherokee over the last few years. In this regard, I accept the evidence of his older sister Caroline, to the effect that he has been unemployed. She was a reliable witness and her evidence on this point emerged without leading during examination in chief, it was confirmed in cross-examination and by the facts read in by the Crown, and it was unchallenged at the bail hearing. The evidence on this bail review Application about Gordon working recently as a “mobile barber” is not reliable and, in any event, it could not explain Gordon’s repeated and apparently continuous access to luxury vehicles. The recent offences relating to G.L. infer that Gordon depends on a particularly predatory form of crime for his livelihood. His decision not to provide an affidavit and not testify, at both the initial bail hearing and on the bail review Application, means that there is no evidence from him about his employment or his sources of income.

v. There is real concern for the safety of the complainant G.L. The offences against her involve violence, intimidation, and domination and she is in fear for her life. She is a critical Crown witness, she has recently reported two incidents that suggest efforts to kill her, and she has reason to believe that Gordon knows where she is presently located and knows where her family lives. In addition, she has given a detailed account of Gordon’s access to a loaded firearm.

vi. Finally, as I will explain below in greater detail, there are real concerns about the adequacy of the present release plan. In short, Patricia Gordon was an unreliable witness and I am far from confident that she can be an effective residential surety. She has not succeeded in the past, it is realistically conceded by the Applicant’s counsel that she needs help, and the two additional proposed sureties are unlikely to be able to provide the kind of help that is needed.

[33] The above six circumstances, when combined, make out a strong basis for detention on the secondary ground, even if the onus was on the Crown. In this case, the onus is on the Applicant.

iii. The tertiary ground

[34] The Supreme Court’s decision in St. Cloud has had a significant impact on the tertiary ground by getting rid of a number of misconceptions that had emerged from the earlier case law. Trotter J. summarized the effect of St. Cloud, in this regard, in R. v. Dang, supra at paras. 45-7, and I simply adopt his analysis:

Prior to St-Cloud, appellate courts had interpreted the tertiary ground very narrowly. This approach can be traced to some of the language in Hall, in which the majority held that detention on the tertiary ground should only occur in “relatively rare” cases. Some courts took this to mean that “rareness” should operate as an independent threshold under s. 515(10)(c). Expanding on this theme, other courts held that detention should only be ordered on this basis when the offence is “inexplicable”, “unexplainable” or unusually “heinous.”

The St-Cloud Court held that this is the wrong approach. As Wagner J. said at paras. 50 and 87:

Furthermore, I agree with the appellant that detention may be justified only in rare cases, but this is simply a consequence of the application of s. 515(10)(c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision.

Section 515(10)(c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

The four circumstances listed in s. 515(10)(c) Cr. C. are not exhaustive.

Justice Wagner also addressed an issue concerning the combined effect of the four factors listed in s. 515(10)(c). The Crown argued that, based on R. v. Mordue (2006), 223 C.C.C. (3d) 407 (Ont. C.A.), at pp. 415-416, when all four factors are present, a detention order must be made. The Supreme Court rejected this proposition at para. 69:

The argument that detention must automatically be ordered if review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.

Wagner J. identified other factors that might be important in this context. Adverting to s. 515(10)(c)(iii) (“circumstances surrounding the commission of the offence”), he said at para. 71:

I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might take account of the fact that the trial of the accused will be held at a much later date.

Still, at the end of this part of the judgment, Wagner J. said at para. 88:

In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. [Emphasis of Trotter J.]

[35] Beginning with the statutory factors set out in s. 515(10)(c), Ms. Gadhia realistically conceded that the most recent charges relating to G.L. are “exceptionally serious” and they will attract a “potentially lengthy term of imprisonment” upon conviction. In addition, “the circumstances surrounding the commission of the offence” involve the violent domination and exploitation of a small, vulnerable, young woman and the use of a loaded handgun. These characteristics of the offence were stressed in R. v. St. Cloud, supra at paras. 60-5 and 161-4, as strongly supporting detention.

[36] The above three statutory factors, however, depend heavily on the fourth statutory factor – “the apparent strength of the prosecution’s case.” It is the indispensable linchpin to the four statutory factors, as Trotter J. explained in R. v. Dang, supra at para. 55:

It is true that the Court in St-Cloud did not rank the importance of the statutory criteria in s. 515(10)(c). This is because the four factors are not independent factors that are singularly capable of justifying detention. They merely feed into the essence of s. 515(10)(c), which is whether detention is necessary to maintain confidence in the administration of justice. However, it stands to reason that the strength of the case in s. 515(10)(c)(i) enjoys some prominence in the mix. No matter how serious the allegations, and notwithstanding the potential penalty that an accused may face, detention based on a weak or doubtful case may tend to undermine confidence in the administration of justice, not maintain it. [Italics of Trotter J.]

[37] As a result of its “prominence” in s. 515(10)(c), a great deal of evidence and argument on the bail review Application was devoted to the issue of whether the Crown’s case does or does not have “apparent strength”. At the initial bail hearing, as noted above, the Justice of the Peace was unable to evaluate this critically important factor stating, “I do not know how strong their case is…without knowing how strong the Crown’s case against you is”. As a result, she found that the Applicant had met his onus in relation to the tertiary ground.

[38] It can be seen from the summary of the Crown’s evidence set out above (at para. 3) that a great deal of “new evidence” was filed by the Crown on the bail review Application, in particular, the independent corroborating evidence that supports G.L.’s account of the January 18, 2020 events. As a result, I am now in a much better position to evaluate the “apparent strength” of the Crown’s case.

[39] Ms. Gadhia effectively conceded that this body of evidence proves the following beyond any doubt: that G.L. got into a dark car waiting in the valet area of the Shangri-La Hotel in the early morning hours of January 18, 2020; that she was accompanied by a taller woman with long blonde hair; that G.L. initially opened the back door on the passenger side and the taller blonde woman opened the front passenger door, that they paused before getting in the car and there appeared to have been an exchange of words, and that they proceeded to switch places and G.L. got into the front passenger seat while the taller blonde woman got into the back passenger seat; that G.L. fled from this dark car shortly afterwards with relatively serious injuries to her head and nose; that the police seized a black Jeep Grand Cherokee at a repair shop about three weeks later, on February 11, 2020; that the seized Jeep had damage to the rear driver’s side and had G.L.’s blood on the armrest; that the Jeep had recently been transferred into Marina Genovese’s name, on February 6, 2020; and that the Jeep can be connected to Gordon, both through his girlfriend/common law partner Ms. Genovese and through the repair shop operator who stated that Gordon instructed him to repair the car.

[40] In other words, the Crown’s independent evidence provides strong proof that someone violently and suddenly assaulted G.L. in a dark car that was waiting for her that night at the Shangri-La Hotel. Where the Crown’s evidence is weaker, in Ms. Gadhia’s submission, is in proving that this dark car was the damaged black Jeep with G.L.’s blood on the armrest (seized by the police three weeks later) and that Gordon was driving it that night. In my view, the evidence is strong that Gordon was driving a black Jeep at this time. Both G.L. and a second completely independent witness (Ms. Perkins-Petris) gave sworn statements to this effect and their evidence is supported by the fact that Gordon is connected to a black Jeep seized by the police at the repair shop on February 11, 2020 (by its registration in his girlfriend Ms. Genovese’s name and by the statement from the operator of the repair shop). When these various bodies of evidence are all viewed together, they provide persuasive proof that Gordon was driving a damaged black Jeep with G.L.’s blood in it at the relevant time. This evidence independently corroborates G.L.’s sworn statement that it was Gordon who picked her up and assaulted her while driving in his black Jeep on January 18, 2020 (after telling her to sit in the front seat). It must be remembered, in this regard, that the issue is the “apparent strength” of the Crown’s case, that the judge at the bail hearing is not the trial judge, and that the Crown “is not required to prove beyond a reasonable doubt that the accused committed the offence”, as the Court put it in R. v. St. Cloud, supra at para. 58.

[41] The only other issue raised by the Applicant, concerning the “apparent strength” of the Crown’s case, involves an attack on G.L.’s general character and credibility. Once again, the admonition of the Court in R. v. St. Cloud, supra at para. 58, must be remembered, namely that “matters such as the credibility of witnesses…must be analyzed at trial, not at the release hearing.” In addition, the strong body of independent corroborating evidence summarized above (such as the medical evidence, the photographs of her injuries, the video surveillance at the Shangri-La Hotel, the subsequent seizure of the black Jeep, its connection to Gordon, and her blood found on the armrest of the Jeep) all bolster the credibility of G.L.’s account, thus diminishing the significance of any attack on her general character and credibility.

[42] Nevertheless, I will briefly address this attack on G.L.’s credibility, in light of the amount of time and effort that was devoted to it. It turned on her alleged false identification of the tall blonde woman who accompanied her that night and who was sitting in the back seat at the time of the alleged assault. The evidentiary record in relation to this issue is complex. In summary, G.L.’s statements and the related evidence concerning this woman’s identity, is as follows:

i. In her first statement to the police in the early morning hours of January 18, 2020, G.L. referred to the second woman as “newer” and new to the “team”, she was from Sweden and she had only been here two or three weeks, and she worked in Mississauga; when asked by the police to describe this woman, G.L. said that she was maybe 23 years old and was 6’ tall with a really long blonde ponytail; most importantly, at some point in the interview, G.L. provided the police with a photograph and a short video that G.L. had taken that evening of herself and this other woman, as they were preparing to go out; this photograph and video were filed as exhibits on the bail review Application and the other woman depicted matches G.L.’s description (she is tall with very long blonde hair in a ponytail) and she also matches the second woman seen in the Shangri-La Hotel video surveillance.

ii. After receiving medical treatment, G.L. gave a second statement to the police at mid-day on January 18, 2020 in which she again stated that this second woman was new, having arrived about a month ago, and G.L. had seen her “maybe three times”; last night was the first time that “it was just me and her hanging out”; most importantly, when asked her name G.L. stated, “I don’t know…something Swedish…like Que…starts with a Q…I don’t know her last name”.

iii. When D.C. Medeiros summarized the above January 18, 2020 statement, he wrote down the name of the second woman as “Quanna(ph)”. This summary prepared by D.C. Medeiros does not include actual quotes from G.L.’s statement. Two weeks later, when seeking an arrest warrant for Gordon on February 5, 2020, the synopsis described the second woman as “unidentified female known as Quanna(ph)”.

iv. The next development was on February 10, 2020 when Gordon was arrested. As noted previously (at para. 3 above), he was driving a Mercedes with two women in the car. The two women were Akilah Campbell and Quiana Perkins-Petris. The police took a cautioned and sworn KGB statement from Ms. Perkins-Petris. She stated that she worked as a model and had recently arrived from Vancouver. She was staying with Ms. Campbell, who worked as an exotic dancer and who Ms. Perkins-Petris had recently met and befriended through social media. Ms. Perkins-Petris had also worked briefly as an exotic dancer in Vancouver. Gordon picked up the two women and drove them to various places, initially in a black Jeep and recently in a Mercedes. Ms. Perkins-Petris knew Gordon by the name “L.A.”, which is the name that G.L. also used for the man in question. Towards the end of the interview, D.C. Medeiros stated the following to Ms. Perkins-Petris: “it’s interesting that your name, as unique as it is, actually came up in this investigation.” D.C. Medeiros went on to suggest that at the time of a “vicious assault by L.A. there was a girl in the car at the time whose name was Qiana”. Ms. Perkins-Petris replied, “it’s not possible”. D.C. Medeiros continued, as follows: “she [G.L.] described her as a white blonde female of somewhat Swedish descent.” Ms. Perkins-Petris stated, “well it’s not me”. D.C. Medeiros stated, “I don’t think it is you.” I was advised by counsel at the present hearing that Ms. Perkins-Petris is not 6’ tall, not Swedish, and does not have long blonde hair. In short, she is clearly not the woman described by G.L. and seen in the photograph and video that G.L. provided to the police on January 18, 2020. D.C. Medeiros went on to explain to Ms. Perkins-Petris that he was “a little bit perplexed at how a very unique name, and it was told Qiana, and then lo and behold, when we arrested L.A. and both you and Rose [Ms. Campbell] are there, and I see your name as Qiana, it just automatically raised some flags for me” [Emphasis added]. Ms. Perkins-Petris showed D.C. Medeiros her airline tickets, arriving in Toronto from Vancouver on February 5 and returning on February 10, 2020. He concluded, “I don’t feel that you are” the person in the backseat of Gordon’s car on January 18, 2020, “that you were in B.C. during that time frame.”

v. At the initial bail hearing on March 19, 2020, the assigned Crown (Ms. Gharabaway) was not able to attend and another Crown took her place. When the Justice of the Peace finished reading her Reasons, detaining Gordon, the substituted Crown who had conducted the bail hearing asked that the order prohibiting contact with G.L. pursuant to s. 515(12) be extended to “two Crown witnesses, Akila Campbell and Quiana Perkins-Petris.” The Crown advised the Justice of the Peace that they were the two women in the Mercedes with Gordon when he was arrested on February 10, 2020 and that “they are both mentioned by the complainant.” The Justice of the Peace asked whether Ms. Perkins-Petris is “alleged to be the person that was in the vehicle on the January 18th allegations”? The Crown replied, “She is. That’s the Crown’s belief, although she hasn’t said that to the police at this time.”

vi. On April 3 and May 6, 2020, a photo line-up and further interview was held with G.L., to try to identify the second woman from 12 photographs of women known to the police. Ms. Perkins-Petris’ photo was not in the line-up. G.L. picked out only one photograph (of Roberta Marshall), who she identified as a woman she had worked with at “For Your Eyes Only”. D.C. Medeiros asked, “Was this the female that you had identified as Quanna, the girl in the back seat on the day that L.A. assaulted you”? G.L. replied, “No, that’s not her.” G.L. stated that she was “pretty sure she [the second woman] wasn’t in any of the pictures.” D.C. Medeiros stated, “That’s fine and I know that you provided me with a photo of the girl that you thought was…that you identified as Quanna…the girl in the back seat. And that was taken the same night prior to the assault”? G.L. replied, “Yes.”

vii. Ms. Perkins-Petris provided an affidavit that was filed on the bail review Application. It sets out in considerable detail, and with independent corroboration, exactly where she was in Vancouver on the night of January 18, 2020.

[43] Based on the above somewhat complicated record, the Applicant asks the Court to infer the following: first, that G.L. must have given a further (as yet undisclosed) statement to D.C. Medeiros at some point between January 18 and February 5, 2020 in which she identified the second woman as “Quanna”; second, that G.L. must have been referring to Quiana Perkins-Petris in this further (as yet undisclosed) statement; and third, that this course of conduct illustrates G.L.’s willingness to implicate an entirely innocent person in order to bolster her own credibility.

[44] In my view, the above argument involves an extravagant series of inferences that are not supported by the factual record. In addition, it is illogical. The known facts are that G.L. immediately and accurately described the second woman as 6’ tall with distinctively long blonde hair worn in a ponytail. She further described the woman as being from Sweden. She gave the police a contemporaneous photograph and video of this woman and herself, taken that same night. She did not know the woman’s name but it was Swedish and it started with the letter Q. The woman had recently arrived and this occasion on January 18, 2020 was the first night that they had gone out together. The woman was clearly not Quiana Perkins-Petris who is a Canadian from Vancouver and who does not match either the description or the photo or the video. In addition, there is no evidence that G.L. even knows Ms. Perkins-Petris. It is unclear how or why D.C. Medeiros wrote down the words “Quanna(ph)” in his summary of G.L.’s statement and it is unclear how or why the Crown at the bail hearing came to believe that Ms. Perkins-Petris may have been the second woman. The Crown’s mistake is likely due to the fact that she had recently taken on the bail hearing and did not know the file as well as the assigned Crown, Ms. Gharabaway. D.C. Medeiros may simply have been recalling the phonetic sound made by G.L. during the interview, instead of replaying the tape recording to refresh his memory as to exactly what G.L. said and then including actual quotes in the summary. In any event, the errors made by D.C. Medeiros and the Crown cannot be attributed to G.L., given that what she said was clear, consistent and corroborated. In addition, it could hardly bolster G.L.’s credibility to falsely implicate someone who did not fit the description that she had given, who did not match the photograph and video that she had given, who was entirely innocent of any involvement, and who was in Vancouver at the relevant time.

[45] For all these reasons, I cannot accept the Applicant’s attempt to attack G.L.’s general character and credibility on the basis of the record filed on this bail review Application.

[46] In conclusion, I am satisfied that the Crown’s case is particularly strong in relation to the events of January 18, 2020, because G.L.’s sworn account is corroborated by a large body of independent evidence. These culminating events on January 18, 2020 are also logically consistent with G.L.’s description of the prior violent, abusive and controlling relationship between her and Gordon. Indeed, her account of her attempts to end the prior relationship provides an explanation for how and why the culminating events on January 18, 2020 came about. There would be no reason for the sudden and brutal attack in the front seat of the Jeep without the earlier developments in the ongoing relationship between G.L. and Gordon. In addition, there is some corroboration of the prior events because G.L. took photographs of her injuries at the time of the two earlier assaults in September 2019 and because of her account concerning the e-transfers of funds to Marina Genovese’s email address (assuming there is some record of these e-transfers).

[47] I am therefore satisfied that the Crown’s case appears to be strong in relation to the most recent charges (those relating to G.L.). It is only those charges that could justify detention on the tertiary ground. In the result, all four statutory factors in s. 515(10)(c) argue in favour of detention.

[48] As Trotter J. explained in R. v. Dang, supra at para. 58, the strength of the release plan is another factor that must be considered in relation to the tertiary ground. A reasonable and knowledgeable member of the public may still have confidence in the administration of justice when bail is granted, even in a case where the four statutory factors carry significant weight in favour of detention, if there is a strong plan of release.

[49] In my view, the plan of release in the present case is weak for a number of reasons. As summarized above at paras. 14-19, the plan of release has evolved. In its present form, the Applicant’s mother Patricia Gordon is the sole residential surety. She was not a reliable witness. She insisted that her son had never breached his bail and she testified that she had never known him to drive. These assertions are contradicted by her own affidavit (where she acknowledged two breaches of bail terms while she was the surety) and by known facts (including Gordon’s two separate guilty pleas to dangerous driving in 2017). Her account of her son’s current employment (as a “mobile barber”) is contradicted by Caroline Gordon and her account of her son’s residence for the last ten years (at Ms. Genovese’s condominium) is contradicted by Ms. Genovese. Her testimony was inconsistent and defensive throughout. Finally, Caroline Gordon’s evidence at the original bail hearing made it clear that her mother had struggled when she acted as a surety for her son. Patricia Gordon is now 67 years old and there is no evidence of any change or of some new development that would allow her to now succeed in supervising her 33 year old son. Once again, it is significant in relation to this issue that the Applicant chose not to file an affidavit or testify on the bail review Application. As a result, I have no evidence from him concerning his present willingness and ability to change his past pattern of conduct or to be supervised by his mother.

[50] Ms. Gadhia, counsel for the Applicant, realistically conceded that Patricia Gordon needs help as the sole residential surety. This is why two additional sureties are part of the plan of release. The most suitable of these two additional sureties is Caroline Gordon but she lives in Brantford, she has a full time job, she has responsibilities to her six year old daughter, and she is soon to undergo a very significant liver transplant operation. Her plan is to drive to Toronto “once a week” in order to “check on Dwayne and ensure that all bail conditions are being followed”. Assuming Caroline Gordon is able to carry out this commitment, it is simply not the level of support and assistance that her mother requires and it is not the level or kind of supervision that the Applicant requires. I am satisfied that Caroline Gordon is a responsible individual but her main form of supervision and assistance would only be by telephone.

[51] That leaves the third surety, Dawn Drakes-Jones. She is 26 years old and has been a close friend of Gordon’s for the past five years. She lives in Toronto, works from home as a beautician, and has a seven year old daughter. In spite of asserting that she is close to Gordon, she was unaware of any violence in his past, she was unaware that he was wanted by the police on outstanding arrest warrants, she had never seen him drive a car, and she believed he supported himself by working as a “mobile barber”. She is young and she appears to know little about the Applicant. Like Caroline Gordon, her plan is to travel to Mississauga “at least once a week” in order to “check on Dwayne and ensure that all bail conditions are being followed.” In my view, Ms. Drakes-Jones is not the kind of person who could effectively supervise the Applicant nor is she able to provide the level of support and assistance that Patricia Gordon requires.

[52] The plan of release includes camera monitoring at the doors to Patricia Gordon’s residence in Mississauga and GPS ankle bracelet monitoring. These are useful tools that would likely assist, to some degree, in controlling Gordon’s movements. However, they would not control his communications and his activities. Those kinds of controls would depend on the one residential surety, Patricia Gordon, who does not inspire confidence. Particularly in this case, where the secondary ground concerns are focused on Gordon’s apparently unlawful sources of employment income, and on his threat to the safety of G.L. and to the proper administration of justice, it is effective supervision of his activities and his communications that is required. I am not satisfied that the plan of release can provide this kind of supervision. In this regard, see R. v. Bahman [2007] O.J. No. 4976 at para. 22-3, per. Nordheimer J. as he then was (S.C.J.); R. v. Williams, 2020 ONSC 2237 at paras. 117-122, per Stribopoulos J.

[53] For all the above reasons, there is a strong basis to detain on the tertiary ground, even if the onus was on the Crown. In this case, the onus is on the Applicant.

iv. The Covid-19 pandemic factor

[54] In R. v. Ibrahim, 2020 ONSC 3024 at paras. 34-6, I recently set out my understanding of the impact that the current Covid-19 pandemic has had on bail decisions in this Court, as follows:

It can be seen that I did not find it necessary to refer to the Covid-19 pandemic as a factor in the above analysis. I should briefly comment on this issue as it was the subject of considerable written argument and evidence in the materials filed on this bail hearing, as well as some oral argument at the video hearing. Indeed, there is now a substantial “Covid-19 jurisprudence” in this Court relating to bail. I was referred to the following cases: R. v. Ibrahim, 2020 ONSC 2241; R. v. Williams, 2020 ONSC 2237; R. v. T.K., 2020 ONSC 1935; R. v. J.S., 2020 ONSC 1710; R. v. Cain, 2020 ONSC 2018; R. v. Rajan, 2020 ONSC 2118; R. v. Jeyakanthan, 2020 ONSC 1984; R. v. Nelson, 2020 ONSC 1728; R. v. Glover, 2020 ONSC 2037; R. v. C.J., 2020 ONSC 1933; R. v. Budlakoti [2020] O.J. No. 1352; R. v. T.L., 2020 ONSC 1885; R. v. J.R., 2020 ONSC 1938; R. v. Kazman, 2020 ONCA 251. In addition, I have read Molloy J.’s helpful recent decision in R. v. D.D., 2020 ONSC 2791, which cites a number of other related decisions of the Court.

As I read the above decisions of many judges of this Court, and one judge of the Court of Appeal, there is broad consensus on the following: first, that the Covid-19 pandemic is “a factor” to be considered in relation to both the secondary and tertiary grounds, although it has less impact on the secondary grounds; second, that the inevitable delays resulting from the backlog of cases awaiting trial due to the recent closure of the trial courts, is also “a factor” to be considered; and third, that there is heightened risk of contracting the virus in jail due to the important preventive role of social distancing (the degree of this generalized risk, in any particular case, will vary depending on other factors such as whether the accused is particularly vulnerable, due to a pre-existing medical condition, and whether there have been any confirmed cases in the particular jail where the accused is detained).

Bail decisions involve the balancing of many relevant factors that relate to the three statutory tests set out in s. 515(10). In any balancing test, where some relevant factors are strong and determinative, other factors may recede in importance. On the other hand, if some normally important factors are weak or equivocal, other factors may become determinative. See, e.g. R. v. Debot (1989), 52 C.C.C. (3d) 193 at 215 per Wilson J. (S.C.C.); Smith v. Jones (1999), 132 C.C.C. (3d) 225 at paras. 78 and 94 per Cory J. (S.C.C.) As I read the above bail decisions, this is how the “Covid-19 factor” is being approached by the judges of this Court. In some cases it carries little weight, where the other relevant factors are strong and determinative. However, in cases where the other factors are weak, the “Covid-19 factor” may become much more important. In the present case, as explained above, the numerous other factors were determinative, and so the “Covid-19 factor” was considered but it carried little weight.

[55] Applying the above analysis to the present case, there are strong justifications for detention on the secondary and tertiary grounds in this case, based on a consideration of many important factors that are relevant to those grounds. In addition, there is no evidence before the Court of any current outbreak of the virus at the Toronto South Detention Centre where the Applicant is presently being detained. Finally, there is no evidence that the Applicant has had any difficulty obtaining the medication he requires for his asthma. Indeed, the evidence is to the contrary.

[56] For all these reasons, the Covid-19 factor was considered but it carried little weight in the ultimate balancing of all relevant factors under the tertiary ground. It carried even less weight in relation to the secondary ground where its relevance is much more limited. In relation to this latter point, see: R. v. D.D., 2020 ONSC 2791 at para. 27, per. Molloy J.

G. Conclusion

[57] In terms of the secondary ground, I am satisfied that Gordon’s detention is necessary “for the protection or safety of the public,” including the safety of G.L., on the basis of the six considerations set out above at para. 32, when weighed together in their totality. In terms of the tertiary ground, I am also satisfied that Gordon’s detention is necessary “to maintain confidence in the administration of justice”, given the strength of the four statutory factors set out in s. 515(10)(c), the weakness of the plan of release, and the minimal weight of the Covid-19 factor in the ultimate balancing of the relevant factors.

[58] In the result, the Application is dismissed. I would like to thank both counsel for their thorough and helpful submissions.

M.A. Code J.

Released: June 30, 2020