Court File and Parties

Court File No.: CR-20-00000226-00BR Date: 2020-07-02 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Cheddi Itwaroo, Applicant

Counsel: Maureen Pecknold and Alex Penny, for the Crown John Kaldas, for the Applicant

Heard: June 17 and June 29, 2020

Before: B.A. Allen J.

Reasons for Decision on a Bail Review Application

Temporary Suspension of the Court

[1] This application was heard and decided in the midst of the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference.

[2] The parties agreed that this bail review proceed by way of tele-conference. A registrar and court monitor were present in a courtroom to maintain the court record. An order excluding witnesses and a publication ban were made.

[3] The applicant filed affidavits of the proposed sureties and his own affidavit. The parties provided written materials electronically by email and made oral submissions. Viva voce evidence was given by four proposed sureties, by a support person who provided a support letter and by the proprietor of a company that offers electronic monitoring services. The accused also testified. The witnesses were cross-examined and not examined-in-chief. The officer in charge attended by teleconference but did not testify. A support worker with the Victim Witness Assistance Program also attended with two members of the deceased’s family.

The Charge and the Incident

[4] The applicant, Cheddi Itwaroo, age 19 at the time, was charged with a co-accused, Emmett Carew, on a single count of murder. This, needless to say, is a very serious charge. This is a defence onus case on bail.

[5] This hearing is the second bail review brought by Mr. Itwaroo. The first bail review was presided over by Bawden, J. on February 3, 2020. Bawden, J. considered facts that were agreed upon by the parties. The details of the incident are as follows.

[6] On May 5, 2019, Brendon Bowler and friend, Xavier, drove to a high school in Scarborough to pick up their friend, Isaiah. They saw Emmett Carew at the school and Mr. Bowler indicated he wanted to purchase marijuana from Mr. Carew. Mr. Carew passed a bag of marijuana to Mr. Bowler who was sitting in a car. There was a discussion concerning the price of the marijuana. After discussing price Mr. Carew felt Mr. Bowler would not pay him and attempted to take back the marijuana. Mr. Bowler resisted. The two men exchanged punches through the car window. Xavier drove away. Mr. Carew received a black eye. Through Snapchat Mr. Carew contacted some of Mr. Bowler’s friends and demanded $80.00 for the marijuana and threatened there would be problems.

[7] Mr. Itwaroo called one of Mr. Bowler’s friends. He inquired about Mr. Bowler. Later that evening an acquaintance of both Mr. Itwaroo and Mr. Bowler, Malachi, learned of the incident at the school earlier that day. Malachi contacted Mr. Itwaroo ostensibly to act as peacemaker. The conversation turned angry with Mr. Itwaroo demanding Mr. Bowler’s phone number and threatening Malachi about Malachi’s people threatening his people.

[8] Since the first bail review the Crown obtained cellphone records from the police of three phone calls made on May 5th, the day before the incident, from a phone believed to be used by Mr. Itwaroo. The calls were between Mr. Itawaroo and his co-accused Mr. Carew. The Crown also filed cellphone records from a cellphone believed to be used by Malachi, a cellphone believed to be used by Mr. Itwaroo. Mr. Itwaroo is requesting from Malachi Mr. Bowler’s contact and residence information. Mr. Itwaroo expresses anger that Mr. Malachi’s people robbed his people. In answer to Malachi’s question about whether Mr. Itwaroo was making a threat Mr. Itwaroo responded, “Yeah”.

[9] On May 6th, Mr. Bowler went to school where nearby he sadly met his death at lunchtime. Mr. Bowler and several friends went to a bench near the school. At this time Mr. Itwaroo was at a nearby plaza with his girlfriend. At about 12 noon Mr. Itwaroo and his girlfriend left the plaza and began walking towards where Mr. Bowler and his friends were congregated. Mr. Itwaroo began yelling and Malachi approached and tried to get Mr. Itwaroo to move away. Mr. Itwaroo resisted and a fight ensued between the two men. There were video surveillance cameras in the area that captured that struggle and other developments in the incident.

[10] Malachi saw Mr. Itwaroo and reached for a backpack Mr. Itwaroo was carrying. Malachi thought the backpack contained a weapon and he struggled to take control of it. Mr. Bowler then joined the struggle for the backpack. Mr. Itwaroo resisted but Mr. Bowler finally got hold of the backpack. Malachi retrieved the backpack from Mr. Bowler and threw it to the ground. Mr. Carew arrived at the scene during the struggle over the backpack. And in answer to Malachi’s inquiry about what the issue was, Mr. Carew pointed to his black eye.

[11] Malachi walked away. When he looked back, he saw Mr. Itwaroo holding a machete. He looked back again and saw Mr. Carew holding the machete and Mr. Itwaroo holding a smaller knife. The evidence diverges as to who was holding which of the knives and when. Several of the persons at the scene made videotaped statements to the police.

[12] Malachi gave internally inconsistent evidence to the police saying he did not see where the knife came from and also that he saw Mr. Carew reveal something black in his waistband. The girlfriend said she saw Mr. Carew with three knives in his waistband. It appears that Mr. Carew gave Mr. Itwaroo a machete and kept a small knife. In his police statement, Mr. Itwaroo admitted Mr. Carew had handed him a machete. He said that he had only held it for a short time and then handed it back to Mr. Carew. Construction workers from a nearby site stated they saw a man fitting Mr. Itwaroo’s description holding a large knife but did not see him stab anyone with it.

[13] Malachi and Mr. Bowler ran from the scene. As they were running, Mr. Bowler said to Malachi, “He stabbed me.” Mr. Bowler then collapsed. An autopsy disclosed that Mr. Bowler died from a single stab wound to the chest. Mr. Carew, Mr. Itwaroo and Mr. Itwaroo’s girlfriend also ran from the scene. Video footage shows Mr. Itwaroo running behind Mr. Carew carrying the backpack and Mr. Carew with a large black object in his hand. The three were arrested a short distance away. Police found a machete and a small knife in the backpack. Both knives were covered with Mr. Bowler’s blood.

[14] Mr. Carew sustained a swollen right eye, marks on his face, bruising to both of his hands and a fresh cut on his fingers and had blood on his clothing. In his police statement Mr. Carew admitted to being in a fight with Mr. Bowler, but not to stabbing him. This is the only evidence that he and Mr. Bowler were fighting that day. Mr. Itwaroo also had fresh injuries, a swollen right eye, marks on his chest, a fresh cut on his left thumb and blood on his clothing that did not match Mr. Bowler’s blood. In his statement to the police Mr. Itwaroo denied stabbing Mr. Bowler.

[15] Autopsy results suggest Mr. Bowler was stabbed with the shorter of the two knives which were retrieved from the backpack. The only knife that was ever seen in Mr. Itwaroo’s possession was the larger machete-type knife. The Crown concedes the possibility that Mr. Carew inflicted the fatal stab as the evidence at this stage is most consistent with that view. The defence’s position is that Mr. Itwaroo did not bring a knife to the scene.

Decision on First Bail Review

[16] Mr. Itwaroo’s aunt and grandmother offered themselves as sureties. Bawden, J. concluded that Mr. Itwaroo was releasable on the secondary ground. The grandmother was proposed as the primary surety. However, Bawden, J. had misgivings but also sympathy, in spite of her good intentions, in regard to the grandmother’s ability to supervise Mr. Itwaroo in view of the fact she was 79 years of age and caring for her husband suffering from dementia. In turning down the plan of supervision as inadequate, Bawden, J. considered the closeness of the sureties to Mr. Itwaroo, the proximity of the grandmother’s home to the school where the incident occurred and the proposed use of a GPS ankle monitor.

[17] Bawden, J. recognized to Mr. Itwaroo’s favour that he was a young man of 20 years of age who lacked a criminal record and outstanding charges. He had the support of a loving family and several letters of support from various persons who have known Mr. Itwaroo for different lengths of time and in a variety of capacities.

[18] On the tertiary ground, Bawden, J. looked at the factors under s. 515(10)(c) of the Criminal Code where the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the offence and the possibility of a lengthy sentence are considered: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 72-87. Bawden J. concluded that the Crown has a very strong case for manslaughter; that this is one of the gravest offences; that the circumstances reveal a vulnerable witness who was defenseless at the moment that he was stabbed; and that even if Mr. Itwaroo were convicted on the lesser charge of manslaughter, he would face a lengthy penitentiary sentence.

[19] At the current bail review, the Crown submitted that there is evidence to show a strong case for murder. The Crown points to the cellphone calls on May 5th between Mr. Itwaroo and Mr. Carew and those between Mr. Itwaroo and Malachi.

[20] The Crown submits that the anger Mr Itwaroo expressed during the calls over the stolen drugs and his inquiries on how to contact Mr. Bowler suggest a plan behind his actions and those of Mr. Carew. The Crown also points to Mr. Itwaroo’s movements on May 6th during the period before the incident to support the idea of a plan to attack Mr. Bowler. As referred to above, Mr. Itwaroo and his girlfriend went to a plaza near the school and as his girlfriend describes, he was “wilding” while on his cellphone, and according to a witness, yelling as he crossed the street towards the bench where Mr. Bowler was with friends.

[21] Whichever view one takes of the offence, it is serious and has exacted the most grave of consequences, the death of an unsuspecting young man in front of his high school. Brendon’s family lost him forever. The facts agreed upon by the parties support the Crown’s view, which I accept, that the confidence of a reasonable, well-informed member of the public in the administration of justice would likely be undermined were Mr. Itwaroo released. It is the strength of the plan of release that is critical to whether it has the capacity to assuage any public loss of confidence if the accused is released.

[22] On the release plan before him Bawden, J. observed:

I also consider that the proposed plan would release Mr. Itwaroo directly into the community where the offence took place. Given the gravity of this offence and the circumstances in which it occurred, this release plan would not maintain confidence in the administration of justice.

One must simply stand back and look at this case as a whole. A knowledgeable and reasonable person would be perplexed that an accused could be released directly back into the community, only eight months after having stalked a 17-year-old boy to his school, taken a knife in hand to confront that boy just off school property, and then become involved in a confrontation which led to a fatal stabbing of that boy. A release on these terms would undermine a reasonable person’s confidence in the justice system.

[Transcript, Bail Review before Bawden, J., February 3, 2020, at p. 27]

[23] The totality of the circumstances surrounding the case must be examined when considering the tertiary ground which includes considering the sufficiency of the plan of supervision. Clearly, I am not bound by Bawden, J.’s view on what additional evidence is required for Mr. Itwaroo to succeed in obtaining release. However, having reviewed the facts and considered the s. 515(10)(c) factors together with the original sureties’ evidence and the original plan of supervision, I agree with Bawden, J.’s observation:

In my view, there would be a material change in circumstances if Mr. Itwaroo were able to present a different plan for release. Such a plan might include removing him from the location of the offence, providing capable sureties who are familiar with his past history and the allegations in this case, and the same electronic monitoring system which has been proposed here.

[Transcript, Bail Review before Bawden, J., February 3, 2020, at p. 29]

[24] It is from the perspective of taking up Bawden, J.’s suggestions that I approach my review of the new evidence put forward by the defence and Crown, evaluating whether the defence has met the burden to prove, on a balance of probabilities, that Mr. Itwaroo is entitled to release.

Decision on the Second Bail Review

Plan of Supervision

[25] A court on a bail review can vary an order on three bases: (a) where the justice has erred in law; (b) where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor. But not on the basis that the justice would have weighed the factors differently or; (c) where there is a material change in circumstances: R. v. St-Cloud, at para. 121.

[26] Whether the defence has adduced new evidence that constitutes a material change of circumstance sufficient to satisfy the tertiary ground concerns is the question before me. For the following reasons, I find there are critical changes of circumstances on several bases.

[27] Mr. Itwaroo’s parents are the two new proposed sureties. While the inclusion of two new sureties in itself may not be a material change in circumstance, I find the context created by the new sureties has provided an entirely different setting for supervising Mr. Itwaroo.

[28] That is, the parents, Susan Wickham-Johnson and Raul Itwaroo, have committed themselves in a way few others could do or would be willing to do. The parents have a home in Scarborough which they intend to rent out once the pandemic emergency lifts. Notably, they have moved from their home and rented a home in Oshawa. As will be seen below, friends have offered to furnish that home to support the family if Mr. Itwaroo is released. This is to respond to the concern cited by Bawden, J. that the grandmother’s home is in too close proximity to the school at the scene of the killing. I find that new arrangement amply answers the geographic concern.

[29] Both parents have been in their son’s life since his birth. The father has been a stay-at-home dad and continues in that role. The mother has been employed as an administrative accounting assistance for about 20 years earning approximately $75,000.00 annually. She largely works from home on this job during the pandemic. To supplement household income, the mother also has jobs at two grocery stores. The proposed plan would allow the parents to offer 24/7 supervision with an exception that Mr. Itwaroo be able to leave the home only in the continuous company of a surety.

[30] The Crown takes the position, given Mr. Itwaroo’s conduct as a youth and the seriousness of the crime, that the new plan of supervision is inadequate on the secondary ground to prevent the substantial likelihood of Mr. Itwaroo committing a further crime or interfering with the administration of justice.

[31] The Crown filed at both the first and present bail reviews Mr. Itwaroo’s secondary school records. The Crown’s intention in doing this is to uncover other problematic areas of Mr. Itwaroo’s life such his discipline and academic issues and his deception of his parents about his school problems. The records contain circumstanes he faced when he was ages 14 to 17 which ultimately resulted in him leaving school in 2017. Mr. Itwaroo is currently age 20.

[32] As noted above, Mr. Itwaroo does not have a criminal record and no outstanding charges. I agree with the submission by Mr. Kaldas that the Crown has resorted to Mr. Itwaroo’s school record as a means to impugn his character and paint him as ungovernable even if under a strict plan of supervision. I note that the records were created in a school context when Mr. Itwaroo was going through the challenges many children go through in puberty. I attribute limited weight to the records in considering the secondary ground. I adopt Bawden, J.’s observation:

Mr. Itwaroo’s release or detention will not turn on his rebellious and truant behaviour as a high school student. There is no suggestion that his misbehaviour ever constituted a criminal offence. The records do not disclose evidence of violence towards others. There is no evidence of threats. The only sign of actual violence was Mr. Itwaroo punching school lockers to express his frustration. None of the conduct disclosed by the school records gives me any direct concern on the secondary grounds.

[Transcript, Bail Review before Bawden, J, February 3, 2020, at p. 13]

[33] The Crown takes the position that Mr. Itwaroo’s involvement with the criminal justice system on a murder charge represents a continuation of his poor conduct at school. The Crown alleges the parents were not able to control or influence their son’s conduct at school and will not be able to do so as sureties. The Crown submits that even with an ankle bracelet, which it points out does not prevent a crime, there is a substantial likelihood Mr. Itwaroo will re-offend.

[34] What I heard from the parents, and accept, is that they have taken active roles in their son’s life and, unlike the grandmother and aunt, were aware of his issues at school. The father stressed that whenever there was an issue at the school or a parent/teacher meeting, they made sure they were there. Both sureties have expressed their appreciation of the severity of the charge Mr. Itwaroo faces and their obligation as sureties to ensure their son complies with the terms of release. They are aware of their obligations to call the police and are prepared to withdraw their pledges if their son breaches the terms of bail.

[35] Overall, the parents have greater familiarity and closeness with Mr. Itwaroo’s life and a greater capacity to supervise him than the previous sureties. The father made a distinction between the climate for his son under bail conditions and that in other circumstances. He was emphatic about compliance saying:

This is a different animal, different waters that will suck you down. There are no excuses like an accident. No room for misunderstanding. It’s not messing around time. It’s letter of the law time.

[36] The father testified that he would scrupulously ensure his son would never have the opportunity to put his hands on a landline or a cellphone to contact associates and the co-accused.

[37] Looking at Mr. Itwaroo’s life at school and after he departed, it is clear the parents did not always know what their son was up to. But I do not think this was due to lack of care or love for him. This unfortunately is not an uncommon experience for many parents of pubescent children. Before his arrest the son was not forced to be under his parents’ constant supervision in their home. He was not fettered by electronic monitoring. He did not have to worry about his parents and grandparents losing their homes. Those factors distinguish Mr. Itwaroo’s earlier life with his parents from the circumstances of his existence were he to be released. But it is important that I believe the parents are capable of exercising strict 24/7 control of their son if he is released. I believe the evidence shows they can.

[38] The sureties for the first bail review, Mr. Itwaroo’s grandmother, Doreen Itwaru and his aunt, June Itwaru, have offered themselves as non-residential sureties. Their families reside together in a home in Scarborough. However, they were adamant in saying they will regularly be in touch with Mr. Itwaroo by phone and through personal visits to apprise themselves of his progress and offer their guidance and love.

[39] The Crown made an important submission on behalf of Mr. Bowler’s family, some members of which attended the hearing. Mr. Bowler’s mother, Renee Ritchie and grandmother, Flo Wiseman, attended with the Victim Witness Assistance Program worker, Jean Clark-Gillespie.

[40] Mr. Itwaroo’s grandmother’s home is within very close proximity of Mr. Bowler’s family’s home. Mr. Bowler’s family members frequently see members of the Itwaroo family drive by their home. I respect and understand their concern and will address it as regards Mr. Itwaroo. I will impose a restriction that Mr. Itwaroo not be taken to the grandmother’s home for a visit during the period of his bail release. The grandmother and aunt shall restrict their home visits with Mr. Itwaroo to the parents’ home in Oshawa.

[41] The mother offers the sizable pledge of $350,000.00 from the equity on her home in Scarborough and her husband pledges $1,000.00. They indicate they are fully aware of the implications to their finances if their son violates the terms of bail.

[42] The grandmother and aunt offer to pledge monetary security. The grandmother offers an even more substantial $1,100,000.00, part of the equity on her Scarborough home. The aunt also pledges a not so paltry sum of $20,000.00. Both of these sureties are aware of the serious risk to their finances with non-compliance by Mr. Itwaroo.

[43] I find the total pledges, amounting to $1,471,000.00, represent an incredible commitment to assuring compliance and exemplifies a degree of confidence in the sureties’ ability to prevent against a substantial likelihood that Mr. Itwaroo will re-offend or interfere with the administration of justice. The financial jeopardy that would result is obvious. Mr. Itwaroo testified he is aware of the devastating financial consequences to his parents, grandmother and aunt if he breaches the terms of his bail.

[44] The defence filed the support letters presented at the first bail hearing as well as an additional letter from family friends, Mr. Itwaroo’s godparents, Lisa Rochon and John Terry. Mr. Terry is a senior partner in a prominent Toronto law firm and Ms. Rochon, an architect specializing in the area of urban design.

[45] In her professional capacity Ms. Rochon has been involved in projects to re-design vulnerable neighbourhoods like Regent Park to build equitable space in those areas. Ms. Rochon also spoke on personal and social levels about her involvement at Regent Park in programs supporting Indigenous and other marginalized women and mentoring children in the community. This involvement fuels her desire to help Mr. Itwaroo.

[46] Ms. Wickham-Johnson was employed by Ms. Rochon as a nanny for several years in the 1990s. The godparents have known Ms. Wickham-Johnson and Mr. Itwaroo over many years although before recently there had been a 20-year gap in contact as their careers and lives with their own families took them in different directions. Ms. Rochon attested to knowing Ms. Wickham-Johnson as a loving, hardworking and upstanding member of the community.

[47] Ms. Rochon indicated she is quite aware of the details of Mr. Itwaroo’s school issues and the charges against him. This has not deterred her and her husband’s commitment to Mr. Itwaroo and his family. Ms. Rochon testified she is prepared to do anything she can to help. She and her husband have generously offered to subsidize the mother’s income by providing her the amount of income the mother earns at the two grocery stores to allow the mother to spend more time at home. They have offered to help furnish the family’s Oshawa apartment.

[48] The godparents have also offered to provide mentoring and to assist Mr. Itwaroo’s continued education, to fund psychological sessions, to have their son offer him guitar lessons and when the pandemic lifts, if he is interested, to involve Mr. Itwaroo in the rehabilitative youth canoeing program, Outward Bound. Video conferencing can make the godparent’s offers possible during the pandemic.

[49] Ms. Rochon’s and Mr. Terry’s commitment demonstrate a strong dedication by people outside the family to assist Mr. Itwaroo’s parents to get their son on a productive path in his life. That is nothing short of commendable. This is a positive contributing factor on the secondary ground. Not unexpectedly, Mr. Itwaroo and his parents have expressed whole-hearted appreciation for the godparents’ generosity and willingness to sacrifice their time and resources in support. They understandably are open to accepting the help the godparents are prepared to offer.

GPS Monitoring

[50] Regarding GPS monitoring, I agree with Bawden, J. that the use of an ankle monitor is an important added layer of security. The defence proposes monitoring services by a company different than that proposed at the first bail review. The proposal is that Recovery Science Corporation (“RSC”) provide the service. This is not a material change of circumstances, just a change in service.

[51] Stephen Tan, the proprietor of RSC, testified about the technology of its GPS monitoring system. His evidence is that the GPS monitoring system is not a preventative measure. But rather is a tool that can be used to collect information to determine and respond to possible violations by an accused. His evidence was that there is a 15-minute delay after a non-communication alert and a 60-minute delay after a no GPS contact alert. The Crown expressed concerns that those periods of delay offer opportunities for violation before police can be contacted and are able to respond.

[52] Mr. Tan testified, and it stands to reason, that the success of the GPS system to monitor an accused depends largely on the sureties’ honesty and their capacity to supervise and control the accused. There is a voice recognition system designed to ensure the surety is accompanying the accused when they leave the home. The Crown posed a number of scenarios for what could happen, for instance, if a surety is deceitful with the voice recognition system when the accused leaves the residence by the surety speaking into the system and indicating they are with accused when they are not.

[53] In response to that concern, Mr. Tan spoke of an upgrade to the system that requires the surety to download an App to their cellphone that permits the surety to take a real-time photo containing date and time, to be sent to RSC, that shows the accused in the company of the surety after leaving the residence. RSC randomly requests sureties do this.

[54] Be that as it may, I have no concerns that the parents will have any inclination to deceive the system to help their son with a violation. They are upstanding citizens that I am confident will take their roles seriously. Moreover, they have a great deal at stake. The sureties have undertaken to pay the cost of the service.

COVID-19

[55] Mr. Itwaroo is detained at Toronto East Detention Centre. I find a further change in circumstance that emerged after the bail review hearing on February 3, 2020. The COVID-19 pandemic was declared in March 2020. This must be considered as a relevant factor in looking at the circumstances that surround Mr. Itwaroo and whether he should be released. The defence filed an affidavit by Dr. Aaron Orkin, dated May 20, 2020, an epidemiologist with expertise in congregant settings. He has provided expert evidence for many bail hearings in relation to the pandemic.

[56] Dr. Orkin attests to the impact of COVID-19 and, in particular, to the jeopardy to persons living in congregant settings. Judicial notice can be taken of the well-documented fact that infected persons in congregant settings can be factors in the spread of the virus to the general public. The court can also take judicial notice of the information generally available from government officials, government websites and publications and the media from which Dr. Orkin draws some of his data.

[57] I take judicial notice of the fact that, as of data released by the Ontario Government on April 28, 2020 and May 26, 2020, there were no reported cases of COVID-19 among staff or inmates at Toronto East Detention Centre: [Response to COVID-19 Information Note, April 28, 2020 and Response to COVID-19 Information Note, May 26, 2020]. This is not evidence of no risk of the virus having entered Toronto East Detention Centre since May 26th or of whether it will enter in the future. There are new inmates constantly being admitted and staff leaving the facility and returning daily. In spite of PPE being utilized, temperatures being taken and other remedial and preventative measures being implemented, as with other facilities, it is possible that COVID-19 could enter Toronto East Detention Centre.

[58] I find the change of circumstance brought about by COVID-19 not only affects the general circumstances of inmates in detention centres but importantly in the case of Mr. Itwaroo, the virus could have a particular adverse effect on his health. Dr. Orkin’s affidavit notes that persons with respiratory conditions are particularly susceptible to the virus. There is evidence from Mr. Itwaroo and his sureties of a health condition that could impact his wellbeing as an inmate.

[59] Mr. Itwaroo was born with the umbilical cord wrapped around his neck. As a result, he has suffered from asthma and bronchitis from childhood. He has been prescribed medications and Flovent and Ventolin puffers for his breathing problems. The defence filed a letter from Mr. Itwaroo’s physician dated May 25, 2020 in which his doctor, who has cared for him his entire life, states that he is concerned about Mr. Itwaroo’s continued exposure to COVID-19 under circumstances where social distancing is impossible.

[60] Mr. Itwaroo testified that he has been prescribed Ventolin and Flovent puffers since he has been in detention. He indicated that he uses them when he is exercising in the yard. He stated that he has not used the puffers on a regular basis since age 14. He said he is reluctant to use the puffers regularly because of their steroid content. The parents confirmed Ms. Itwaroo’s evidence about his asthma condition.

[61] I find I have sufficient evidence to accept that Mr. Itwaroo is particularly vulnerable to the virus while in detention.

Conclusion

[62] Mr. Itwaroo is a young man without a criminal record or outstanding charges. Not to minimize the fact of Mr. Itwaroo’s proximity to the crime, there is evidence that suggests he was not the principal actor.

[63] The sureties have put nearly their entire financial worth in jeopardy on faith in themselves that they will ensure their son’s compliance. This is a powerful motivator. It gives me a substantial measure of confidence that they will not allow Mr. Itwaroo to breach and that if he does, they will call the police.

[64] There is a rehabilitative element to the plan. Mr. Itwaroo’s godparents have so generously offered to fund counselling, recreational activities and music lessons and assist a return to school to put Mr. Itwaroo on the path of adopting a pro-social lifestyle. Mr. Itwaroo must be willing to accept this help for the offer not to be forfeited. He has been given a chance during release of which few others could boast. With the added security of electronic monitoring, I find the defence has satisfied its burden to establish a plan of supervision capable of maintaining public confidence in the administration of justice in the face of the serious crime Mr. Itwaroo faces at trial.

Disposition

[65] Cheddi Itwaroo shall be released from the Toronto East Detention Centre on the following terms:

a. Cheddi Itwaroo shall reside at the home of his parents and sureties, Susan Wickham-Johnson and Raul Itwaroo, at 650 Simcoe St. North, Unit #5, in Oshawa, Ontario;

b. He shall be under 24-hour, 7-day per week house arrest only being allowed outside the residence if accompanied by one of his sureties;

c. He shall not have access to a cellphone, computer, Ipad or other electronic device unless under the direct and continuous supervision of a surety;

d. His residential sureties shall be his parents, Susan Wickham-Johnson and Raul Itwaroo, and his additional sureties shall be his grandmother, Doreen Itwaru and his aunt, June Itwaru, the latter two sureties residing at 15 Leverhume Crescent in Scarborough, Ontario;

e. Susan Wickham-Johnson shall post security for bail in the amount of $350,000.00;

f. Raul Itwaroo shall post security for bail in the amount of $1,000.00;

e. Doreen Itwaru shall post security for bail in the amount of $1,100,000.00;

g. June Itwaru shall post security for bail in the amount of $20,000.00;

h. A GPS ankle monitor shall be installed by a representative of Recovery Science Corporation at the Toronto East Detention Centre before Cheddi Itwaroo is released from Toronto East Detention Centre;

i. The parent sureties shall within seven days after release satisfy Recovery Science Corporation that they have a cellphone capable of downloading the App that allows the sureties to take photos of themselves with Mr. Itwaroo when they have left the sureties’ residence;

j. Susan Wickham-Johnson shall pay the initiation and monthly fees for the GPS ankle monitor system;

k. Cheddi Itwaroo shall not be within 500 metres of Sir Wilfrid Laurier Collegiate Institute, at 145 Guildwood Parkway in Scarborough, Ontario;

l. The sureties shall not allow Mr. Itwaroo to visit his grandmother’s home at 21 Leverhume Crescent in Scarborough, Ontario during his period of release;

m. Cheddi Itwaroo is prohibited from contacting the following persons by telephone, emails, text messages, computer, written mail or through third party contact:

n. i. Summer Phillips-Domankos ii. Emmett Carew iii. Xavier Griffiths iv. Isaiah Beckford v. Tyrell Baxter vi. Marcus Khan vii. Julian Gill viii. Malachi Herrera ix. Nathalia Armstrong x. Mariah Evans xi. Breanna James xii. Nicholas Hunks xiii. Mohammed Eghbal-Aklaghi

o. Cheddi Itwaroo is prohibited from having possession of a weapon as defined in the Criminal Code which includes any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance; and

p. He shall abstain from the consumption of alcohol or other intoxicating substances.

B.A. Allen J. Released: July 2, 2020