R. v. J.A.
Ontario Reports
Court of Appeal for Ontario
Miller, Nordheimer and Thorburn JJ.A.
October 21, 2020
153 O.R. (3d) 593 | 2020 ONCA 660
Case Summary
Criminal law — Bail — Review — Accused's first bail application denied on primary and secondary grounds — Accused's application for s. 680 review dismissed — Application for s. 522 review allowed as second judge concluded that was material change in circumstances namely new evidence weakening Crown's case and because of COVID-19 pandemic — Crown's application for panel review of accused's release on bail allowed — Second bail judge erred in finding material change in strength of Crown's case — Second bail judge also erred by accepting that pandemic itself was a material change without considering it in the context of findings of first bail judge — Accused healthy 28 year old, detained in single occupancy cell in facility with no COVID-19 cases and precautions in place - Criminal Code, R.S.C. 1985, c. C-46, ss. 522, 680.
The accused was charged with two counts of first degree murder, one count of attempted murder, and one count of conspiracy to commit murder arising from two separate shootings. The accused was not alleged to be present at the shootings. The Crown's theory was that the accused was involved in procuring GPS tracking devices and conducting surveillance of the victims and their families, and provided the vehicles used by the shooters. He was automatically detained and applied for bail. The bail judge denied the application on the primary ground of ensuring attendance in court and the secondary ground of protection of the public. The accused's application for review under s. 680 of the Criminal Code was dismissed. He sought a review under s. 522 from a second bail judge on the basis of material change in circumstances in the form of new evidence that materially weakened the Crown's case, the COVID-19 pandemic, and a new plan of release. The second bail judge held that there was new evidence that was not tendered at the original bail hearing that weakened the Crown's case; namely evidence from the shopkeeper who sold two of the GPS trackers that the purchaser of the trackers was white, while the accused was half Filipino and half Black. The second bail judge also held that the existence of the COVID-19 pandemic constituted a material change in circumstances warranting a new hearing. The accused was released on bail. The Crown applied for a panel review of the second bail judge's decision.
Held, the application should be allowed.
Per Thorburn and Miller JJ.A.: The second bail judge made a palpable and overriding error in finding a material change in respect of the strength of the Crown's case. The evidence at the first bail hearing was that the shopkeeper told police he believed the purchasers were white. The evidence at the second bail hearing was from the shopkeeper directly, stating that he was clear the purchasers were white. The new evidence was not a material change as it was only one small piece of the evidentiary puzzle. The first bail judge was clear that the strength of the Crown's case lay in the evidence as a whole.
The second bail judge made an error of law in failing to consider the new evidence regarding the COVID-19 pandemic in the context of the existing findings of the first bail judge. Instead, he accepted that the pandemic in and of itself was a material change justifying a new bail hearing. In doing so, he failed to consider how the pandemic was relevantly material before deciding to hear the bail application afresh. The evidence relating to the accused's health and conditions in the detention institution could not reasonably be expected to have affected the first bail judge's concerns on the primary or secondary grounds, whether taken alone or in combination with the revised plan of release. The accused's youth and good health and the safety steps taken by the institution were such that the risk of contracting COVID-19 there was low.
The respondent was to be detained pending trial.
Per Nordheimer J.A. (dissenting): The effect of the shopkeeper's direct evidence was characterized by the second bail judge as "some diminution to the strength of the prosecution's case". That was an entirely fair characterization and could not be said to be a palpable and overriding error of fact. It represented a change that was relevant and material as understood in the context of bail reviews. There was no proper basis for second-guessing the second bail judge's conclusion that the change was material. With respect to COVID-19, it constituted a material change in circumstances with respect to every detention order made prior to the advent of the pandemic. There could be no serious issue taken with the proposition that detention facilities are, by their nature, places where persons would be at greater risk of contracting the virus should it manage to get into such a facility. The result was that the second bail judge was entitled to conduct a fresh review of the circumstances, which he did, and there was no error in his conclusion that there were insufficient facts to establish a proper basis for detention. The proposed plan of release was sufficient to address any concerns.
Cases referred to
R. v. Abdullahi (2020), 150 O.R. (3d) 790, [2020] O.J. No. 2458, 2020 ONCA 350; R. v. Boyle, [2006] O.J. No. 5094, 72 W.C.B. (2d) 54, 2006 CanLII 42662; R. v. C. (A.A.), [2015] O.J. No. 3450, 2015 ONCA 483; R. v. Cahill, [2020] O.J. No. 1692, 2020 ONSC 2171 (S.C.J.); R. v. Dempsey, [2001] B.C.J. No. 561, 2001 BCCA 122, 153 C.C.C. (3d) 311, 151 B.C.A.C. 272 (C.A.); R. v. Dyce, [2016] O.J. No. 2702, 2016 ONCA 397; R. v. Elliot, [2020] O.J. No. 2116, 2020 ONSC 2976 (S.C.J.); R. v. Grant, [2020] O.J. No. 2109, 2020 ONSC 2957 (S.C.J.); R. v. Hastings, [2020] O.J. No. 1427, 2020 ONSC 2083 (S.C.J.); R. v. A. (J.), [2020] O.J. No. 1659, 2020 ONSC 2312 (S.C.J.); R. v. Kazman, [2020] O.J. No. 1495, 2020 ONCA 251, 386 C.C.C. (3d) 424 (C.A.); R. v. M. (S.), [2020] O.J. No. 2840, 2020 ONCA 427; R. v. Morris, [2020] O.J. No. 2548, 2020 ONSC 3526 (S.C.J.); R. v. Myers, [2019] 2 S.C.R. 105, [2019] S.C.J. No. 18, 2019 SCC 18, 375 C.C.C. (3d) 293, 53 C.R. (7th) 1, 438 D.L.R. (4th) 60; R. v. Oland, [2017] 1 S.C.R. 250, [2017] S.C.J. No. 17, 2017 SCC 17, 136 W.C.B. (2d) 189, 36 C.R. (7th) 1, 347 C.C.C. (3d) 257, 409 D.L.R. (4th) 457, 379 C.R.R. (2d) 63, 2017EXP-919, EYB 2017-277513; R. v. Robinson (2009), 95 O.R. (3d) 309, [2009] O.J. No. 1284, 2009 ONCA 205, 265 O.A.C. 69; R. v. St-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, 471 N.R. 256, 121 W.C.B. (2d) 281, 336 C.R.R. (2d) 80, 321 C.C.C. (3d) 307, 384 D.L.R. (4th) 676, 19 C.R. (7th) 223, 2015EXP-1532, J.E. 2015-847, EYB 2015-252132; R. v. Whyte (2014), 119 O.R. (3d) 305, [2014] O.J. No. 1633, 2014 ONCA 268, 10 C.R. (7th) 88, 318 O.A.C. 221, 310 C.C.C. (3d) 335, 114 W.C.B. (2d) 333
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 11(e)
Criminal Code, R.S.C. 1985, c. C-46, ss. 469 [as am.], 515(10) [as am.], (c) [as am.], (11), 522 [as am.], (2), 680 [as am.]
Authorities referred to
The Honourable Justice Trotter, Gary T., The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010)
Watt, David and Fuerst, Michelle, 2021 Annotated Tremeear's Criminal Code (Toronto: Carswell, 2020)
APPLICATION by Crown for review of a bail decision.
David Friesen, E. Nicole Rivers and Eric W. Taylor, for applicant.
Leora Shemesh and Gary Grill, for respondent.
Christine Mainville and Eric Neubauer, for intervener, Criminal Lawyers' Association.
THORBURN J.A. (MILLER J.A., concurring): —
A. Overview
[1] This is a s. 680 Criminal Code, R.S.C. 1985, c. C-46 review of an order granting the respondent, J.A., bail pending trial.
[2] The respondent is charged with two counts of first degree murder, one count of attempted murder, and one count of conspiracy to commit murder. The circumstances of the murders are as follows:
[3] On March 14, 2017, the first victim, M.B., was murdered in the parking lot of a business owned by S.S. in Woodbridge, Ontario. The first victim was S.S.'s girlfriend. The murder was depicted on video showing a masked gunman alleged to be one of the respondent's co-accused, M.C., exit a black Jeep Cherokee and shoot at the first victim and S.S. while they were near their motor vehicle.
[4] On May 2, 2017, the second victim, A.M., was murdered while in his motor vehicle outside his residence in Waterdown, Ontario. A masked gunman ran up to his vehicle and shot into the driver's side window and then fled in a burgundy Ford Fusion. His murder was also captured on video.
[5] The murders appear to be related to organized crime, as the victims were associated with organized crime families.
[6] The Crown does not allege that the respondent was present at the shootings. The Crown theory is that he conspired with the co-accused to murder the two victims, was involved in procuring GPS tracking devices and conducting surveillance of the victims and their families, and provided the vehicles used in the commission of the offences.
[7] Because the respondent is charged with s. 469 Criminal Code offences, he was automatically detained pursuant to s. 515(11) of the Criminal Code. The respondent had the onus to demonstrate why he should be released on bail, pursuant to s. 522(2) of the Criminal Code.
[8] The first bail judge denied the respondent bail pending trial on the basis that he did not meet his onus on the primary or secondary grounds articulated in s. 515(10) of the Criminal Code: the primary ground, being that detention is necessary to ensure his attendance in court; and the secondary ground, that detention is necessary for the protection of the public.
[9] With respect to the primary ground, the first bail judge considered the seriousness of the charges, the strength of the Crown's case, the respondent's limited ties to the community, the fact that both of the co-accused had fled to Mexico, the respondent's connection to drug trafficking, and his history of lying to his surety in a previous matter. He found that the respondent was a flight risk, and that the proposed plan did not effectively mitigate that risk. With respect to the secondary ground, the first bail judge's primary concern was the ineffectiveness of the proposed plan for release, given the respondent's history of lying and relationship with the proposed sureties.
[10] The first bail judge also found that all four factors under the tertiary ground of public confidence in the administration of justice were triggered but held that he would not have detained the respondent solely on those grounds.
[11] The respondent sought a s. 680 review of the first bail judge's decision. The matter was referred to a panel. In short reasons for decision, this court upheld the first bail judge's decision and concluded that, "[The judge] reached reasonable conclusions about the strength of the case for the Crown and the fragility of the proposed plan of release, especially the adequacy of the supervision proposed."
[12] Thereafter, the respondent sought a review under s. 522 from a second bail judge, claiming a right to a new bail hearing because there was a material change in circumstances including:
(a) new evidence that the respondent claimed materially weakened the Crown's case;
(b) the COVID-19 pandemic; and
(c) a new plan of release.
[13] The second bail judge held that the strength of the Crown's case had materially weakened and COVID-19 represented a material change in circumstances. He therefore concluded that a new hearing was warranted, he conducted a new hearing and, although he found it was a "close call", he released the respondent on bail.
[14] The applicant Crown sought a panel review of the second bail judge's decision [reported at R. v. A. (J.), [2020] O.J. No. 1659, 2020 ONSC 2312 (S.C.J.)] to release the respondent on bail pursuant to s. 680 of the Criminal Code, on two grounds:
(a) the second bail judge made a palpable and overriding error of fact in concluding that the Crown's case had materially weakened since the first bail hearing; and/or
(b) the second bail judge made an error of law in determining that COVID-19 per se constituted a material change in circumstances warranting a new bail hearing.
[15] A panel review was ordered by Fairburn J.A. on July 2, 2020.
[16] The preliminary inquiry has since concluded and the respondent concedes there is sufficient evidence to proceed to trial.
[17] For the reasons that follow, I would set aside the order granting the respondent bail pending trial and substitute a detention order pending trial.
B. Issues
[18] The issues to be determined on this review are whether the second bail judge erred in concluding that:
(a) there was a material change in the strength of the Crown's case;
(b) the COVID-19 pandemic is a material change that warrants a new hearing in all cases; and
(c) a new bail hearing was warranted without the need to consider the existing findings of the first bail judge.
C. The Law in Respect of Bail and Bail Review
The Bail Process for a Person Charged with a s. 469 Offence
Detention
[19] A person charged with s. 469 Criminal Code offences is subject to a detention order as provided for in s. 515(11). Thereafter, the accused may bring an application to show why detention is not justified pursuant to s. 522.
[20] The detention of an accused can only be justified on one or more of the following grounds, set out in s. 515(10) of the Criminal Code:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution's case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
Bringing a Bail Review Application
[21] An application to vary can be brought pursuant to s. 522 in three circumstances:
(a) where the decision reflects an error of law;
(b) where the decision was clearly inappropriate, such that "the justice . . . gave excessive weight to one relevant factor or insufficient weight to another"; or
(c) where there is a material change in circumstances: R. v. St-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, at para. 121; and R. v. Dempsey, [2001] B.C.J. No. 561, 2001 BCCA 122, 153 C.C.C. (3d) 311 (C.A.).
[22] Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, it is customary to bring a second bail application in Superior Court: R. v. Whyte (2014), 119 O.R. (3d) 305, [2014] O.J. No. 1633, 2014 ONCA 268, at para. 21; R. v. Robinson (2009), 95 O.R. (3d) 309, [2009] O.J. No. 1284, 2009 ONCA 205, at para. 5.
[23] In such cases, a court of first instance will review the effect of the new information on the issue of interim release: Whyte, at para. 21 and R. v. Boyle, [2006] O.J. No. 5094, 2006 CanLII 42662(C.A.), at para. 3.
[24] Where an applicant challenges the s. 515(11) denial of bail on the basis of the correctness of a bail decision, the proper course is to seek review by a court of appeal under s. 680 of the Code. This second procedure does not however, foreclose consideration of a change in circumstances on a s. 680 application. In such cases, the Superior Court of Justice and the Court of Appeal have concurrent jurisdiction to decide whether there has been a material change in circumstances warranting judicial interim release: Whyte, at para. 22.
[25] Where new evidence is submitted to demonstrate a material change in circumstances, that evidence should be considered together with the considerations that underpinned the first bail judge's refusal of bail to determine whether the alleged change in circumstance is both material and relevant to the case at hand such that a hearing de novo is warranted: Whyte, at para. 26; R. v. C. (A.A.), [2015] O.J. No. 3450, 2015 ONCA 483, at para. 56; and St-Cloud, at para. 121.
[26] If the alleged change in circumstance is one that could reasonably be expected to have affected the result in this case, the reviewing judge is authorized to conduct a new hearing and conduct a fresh analysis on the bail application as if he or she were the initial decision-maker: St-Cloud, at para. 138.
Bail Review by a Panel of the Court of Appeal
[27] Section 680 of the Criminal Code provides that a bail review is to be conducted by a panel of this court where directed by the Chief Justice or Acting Chief Justice. A review is warranted where it is arguable that the judge committed material errors of fact or an error of law in arriving at the decision, or that the decision was clearly unwarranted in the circumstances: R. v. Oland, [2017] 1 S.C.R. 250, [2017] S.C.J. No. 17, 2017 SCC 17,at paras. 61 and 64.
[28] The panel conducting the review must show deference to the judge's findings of fact but may substitute its decision for that of the judge below where the panel is satisfied that the judge erred in law or principle and the error was material to the outcome or, where it concludes that the decision was clearly unwarranted: R. v. Oland, supra, at paras. 61, 64.
D. Analysis
(1) The First Issue: Did the Second Bail Judge make a Palpable and Overriding Error in Finding there was a "Material Change" in the Strength of the Crown's Case?
Evidence of the Offences Adduced at the First Bail Hearing
[29] The respondent and his two co-accused were charged with two counts of murder and conspiracy to commit murder. Both co-accused fled to Mexico.
[30] The Crown claims the respondent assisted in obtaining and installing GPS trackers to monitor the victims and their families for weeks prior to the shootings, had ongoing communication with the co-accused, provided vehicles used in the commission of the crimes, and his cellphone could be traced to locations associated with the commission of these crimes at the relevant times.
(a) The Purchase of GPS Tracking Devices
[31] The evidence relied on by the Crown to support its theory that the respondent was involved in the purchase of two GPS trackers on March 10, 2017 to monitor the victims and their families, includes the following:
(a) the respondent's cellphone contained many calls and text messages to and from both co-accused, M.C. and D.T., during the period the tracker devices were purchased, installed and used, and the commission of these crimes;
(b) according to the shopkeeper who sold the GPS tracking devices, the devices were purchased by someone using the account name "Mike Uppercut666". The phone number associated with the "Mike Uppercut666" account was linked to the co-accused, M.C.;
(c) the name, Uppercut666 is listed among the contacts in the respondent's cellphone;
(d) on March 10, 2017, the day that two of the tracking devices were purchased, the respondent sent a text message to his co-accused D.T., at 1:16 p.m.;
(e) a text message from the respondent's phone to the co-accused D.T., at 2:19 p.m. on the day of the purchase said "350 each always been dude said";
(f) the shopkeeper of the GPS devices said he made a deal with the customers using the "Mike Uppercut666" account to sell the first tracker at $400 and additional ones for $350;
(g) between 2:11 and 3:51 p.m. on the day of the purchase, the respondent and D.T. exchanged 13 calls or text messages near the shop were the devices were purchased;
(h) the two trackers were purchased at 3:52 p.m.; and
(i) two minutes after the tracking devices arrived at D.T.'s travel agency where the respondent worked, a call came from the respondent's cellphone less than one kilometre away.
(b) Communications with the Co-Accused and Cellphone Searches re Installation and Use of the Tracking Devices
[32] The Crown alleges that the respondent and the two co-accused installed the tracking devices purchased on March 10, 2017 to monitor the activities of the victims' families. The following evidence was adduced in support of that theory:
(a) the respondent's cellphone contained Google Maps image search for the victim A.M.'s mother's residence taken on March 7, 2017;
(b) on April 16, 2017 a GPS tracker was reactivated in the area of P.M.'s residence. P.M. is the victim A.M.'s brother;
(c) at 3:03 p.m., also on April 16, the respondent's cellphone contained Google Maps image search for P.M.'s residence; and
(d) three days before A.M. was murdered, the respondent's cellphone activated a cell site less than one kilometre from A.M.'s residence. Five minutes later, the GPS device was activated approximately 700 metres from the victim A.M.'s residence.
(c) The Respondent's Alleged Involvement with Vehicles Used in the Commission of Crimes
[33] The following evidence was relied on by the Crown in respect of the vehicles used in the commission of these offences:
(a) The respondent lent two cars (a black Honda Civic and blue Infinity) to the co-accused;
(b) There was a text message exchange with the respondent's co-accused, D.T. telling the respondent the "boss" asked him to register the Honda in the respondent's name. The respondent did so. That vehicle was used several times in conducting surveillance of the victims before the murders;
(c) The respondent told police that he had sold the Honda in January 2017, but a witness told police that the respondent asked him to store the vehicle and gave him the car and a pre-filled bill of sale in July 2017. In December 2017, the respondent's co-accused, D.T. brought someone to the witness' residence and sold him the vehicle using the pre-filled bill of sale;
(d) There was a text message to the respondent from the other co-accused M.C. about the need to repair the bumper of the Infinity and a Highway 407 bill for the Infinity was found in the respondent's home at the time police searched his residence;
(e) On April 4, 2017 the respondent's cellphone travelled to a cell site near D.T.'s residence. Less than half an hour later, the co-accused D.T. texted "Les boogie" to the respondent's cellphone;
(f) Thereafter, both the co-accused D.T. and the respondent's cellphones used a cell site en route to Eastern Ontario to obtain the Ford Fusion. The respondent's cellphone also contained a Google Maps search for the Gas Bar, where the Ford Fusion was picked up. The Ford Fusion was later used as the getaway car after one of the murders.
Testimony of the Police Officer at the First Hearing
[34] In addition to the above evidence, during cross-examination of a police officer before the first bail judge, the officer testified that:
He [the shopkeeper] says the customer came to the store once and introduced himself and used a name Uppercut666.
According to the notes that he [the shopkeeper] has, this individual [the purchaser] was a white male.
[35] The following exchange took place between the respondent's counsel and a Staff Sergeant who was cross-examined about whether the respondent had "purchased" trackers in March 2017:
Q. Okay. Let me be more clear. Do you have any evidence that he walked inside of DoBuyDirect?
A. There is no video evidence of that.
Q. Do you. . ..
A. And there's no witnesses to that.
Q. Okay. So the owner was interviewed.
A. Yes.
Q. And what you haven't told His Honour is that the owner described the people who bought the trackers.
R. Okay. I wasn't asked that, but we had interviewed the owner.
Q. Yeah.
A. And we had asked him if he could -- as he said, he runs a shop, he deals with a lot of people, he couldn't -- if he saw a picture of them again, he couldn't recognize who they were, he didn't think.
Q. At 20:26:55 of [the shopkeeper], is that the owner?
A. Yes.
Q. Okay. At 20:36:55, he says that he keeps notes on the activation date, the expiry date, plus the description of the person. Isn't that what he said?
A. Okay. That's what. . .
Q. Okay.
A. . . . he said, yeah.
Q. Yeah, and he said some people pay by cash so there's no record.
A. Yeah.
Q. Okay. He says the customer came to the store once and introduced himself and used a name Uppercut666.
A. Yes.
Q. After that, other people used the name to make purchases?
A. Yes.
Q. According to the notes that he has, this individual was a white male.
A. Yes.
Q. Maybe his height.
A. Yes.
Q. Cannot recall his hair, but wasn't a lot taller than him, maybe an inch or two, had brownish or light brown hair, didn't think glasses.
A. Yes.
Q. Okay. He went on to re -- to recall what he was wearing, correct, doesn't -- probably wearing jeans. It was winter.
A. Yes.
Q. And doesn't remember anything about his voice.
A. Correct.
Q. All right. He's asked later on whether or not anyone who came to purchase it was something other than white, and he said no.
A. Okay.
Q. [The respondent J.A.] is not white.
A. Correct.
Q. All right. So you do not have a description from anyone from DoBuyDirect that [the respondent] went into the store and purchased anything.
R. Well, as I said, there was nothing on video. [The shopkeeper] didn't describe anything like that. But I do recall talking to [the shopkeeper] and he just -- he said other people did come in and purchase them, again, couldn't describe -- couldn't recall them, and there's nothing we could -- we couldn't force him to, to make something up. We just asked him what he knew and what he could recall, and that was the best he did.
[36] The Staff Sergeant acknowledged there was no direct evidence that the purchaser who physically went into the store and picked up and paid for the GPS devices was the respondent.
[37] The Crown's position therefore did not materially change in terms of whether the respondent actually purchased the GPS trackers. What is important in any event, is not the position taken by the parties at first instance, but the evidence before the first bail judge, what conclusions he drew, and what he based those conclusions on.
The First Bail Judge's Decision Regarding the Strength of the Crown's Case
[38] The first bail judge held that the strength of the Crown's case consisted in "the combined effect of all of the evidence". In assessing the strength of the Crown's case, he concluded at paras. 15 and 16 that:
The Crown's case for murder against [the respondent] is neither flawless or as utterly devoid of merit as is argued by his counsel. The evidence against [the respondent] is almost all circumstantial, but, as we tell juries every day, such evidence is of equal value as direct evidence. The inferences which the Crown will ask the jury to make are not far-fetched or illogical. A large part of the Crown's evidence comes from the careful analysis of data extracted from the accused's cell phone. The seizure of that evidence will undoubtedly be the subject of a Charter challenge. I am not deciding that issue here. Some Charter challenges are successful and the evidence is excluded as a result of the breach; some are not.
The Crown does not suggest that [the respondent] was the person who actually shot both of the victims. Of course, that does not preclude his being convicted of being a party to the murders. There is evidence, however contested, of his providing assistance to his co-accused in the form of supplying automobiles, purchasing or negotiating for tracking devices used to locate the victims and their families, and conducting surveillance.
I agree with the submission of the Crown that much of defence counsel's attack on the strength of the prosecution's case consists of the minute examination of points in isolation, while overlooking the combined effect of all of the evidence.
(Emphasis in original)
[39] Based on his review of all of the evidence as set out above, the first bail judge held that he would detain the respondent on each of the primary and secondary grounds.
[40] That decision was upheld by this court, which found the first bail judge's reasons about the strength of the case to be "reasonable conclusions".
The Second Bail Judge's Decision Regarding the Strength of the Crown's Case
[41] In April 2020, the respondent sought a bail variation on the basis that there was a material change in circumstances. The respondent acknowledged that there was no error of law made by the first bail judge.
[42] The second bail judge held that there was new evidence that was not tendered at the original bail hearing that weakened the Crown's case; namely evidence from the store owner who sold two of the GPS trackers that the purchaser of the trackers was white, while the respondent is half Filipino and half Black.
[43] The second bail judge mistakenly held at para. 53 of his reasons that, "[T]here was no evidence at the original bail hearing from or in respect of [the shopkeeper], the store owner where the trackers were purchased."
Analysis and Conclusion on the First Issue
[44] The second bail judge's conclusion that the first bail judge had not been provided with any evidence with respect to the shopkeeper's observations is incorrect. It is clear from the testimony of the police officer before the first bail judge that the shopkeeper had told police in his police statement that he believed the purchasers of the trackers were white. Nor was there any evidence to the contrary.
[45] The second bail judge therefore erred in concluding at para. 51 of his decision that "I am persuaded that there is a material change in the circumstances due to a change in the strength of the Crown's case."
[46] He went on to say, at paras. 58 and 59, that as a consequence of the material change, he was entitled to conduct a hearing de novo:
I am satisfied that the "door is opened" for a review by virtue of the two aforementioned material changes in circumstances, namely, the COVID-19 pandemic and the modification (or potential diminution) to the strength of the Crown's case.
[47] I disagree that the Crown's case was materially weakened. The evidence at the first bail hearing was that the shopkeeper told police he believed the purchasers were white. The evidence at the second bail hearing was from the shopkeeper directly, stating that he was clear the purchasers were white. The second bail judge referred to this change as a "potential diminution to the strength of the Crown's case" and held that:
While reasonable inferences can be drawn, the circumstantial evidence adduced by the Crown at first instance is now supplemented by direct evidence that may tend to affect the strength of the Crown's case as to the identity of the purchaser of the trackers on the day in question.
(Emphasis added)
[48] The new evidence is not a material change.
[49] The first bail judge was clear that the strength of the Crown's case lay in the evidence as a whole. It was not a material change in circumstance that the respondent was not the physical purchaser of the tracker. This new evidence was only one small piece of the evidentiary puzzle. Other findings accepted by the first bail judge demonstrate that his decision was based on the Crown's wide range of circumstantial evidence linking the respondent to the murders. These other findings include:
-- the police officer testified that at the time the shopkeeper gave his statement to police, the shopkeeper said he believed the GPS tracking devices were sold to white men;
-- the respondent's cellphone contained many calls and text messages to and from both co-accused, M.C. and D.T., during the period the tracker devices were purchased;
-- a text message from the respondent's cellphone made reference to "350", the amount the tracking device was sold for;
-- the respondent's cellphone contained Google searches of the victims' and their families' homes;
-- the respondent's vehicles were used in the commission of the crimes; and
-- the respondent had ongoing communications with the co-accused around the time the crimes were committed.
[50] In light of the evidence that was before the first bail judge, I find the second bail judge made a palpable and overriding error in finding that there was a material change in respect of the strength of the Crown's case warranting a new bail hearing.
(2) The Second Issue: Does the Existence of COVID-19 Constitute a Material Change in Circumstances Warranting a New Hearing?
The Positions of the Parties
[51] The second bail judge also held that there was a material change in circumstances by virtue of the existence of the COVID-19 pandemic such that a new hearing was warranted (The effect of COVID-19 was not canvassed by the first bail judge as that hearing predated the COVID-19 pandemic.). After conducting a new hearing, although he said it was a "close call", the second bail judge concluded that the respondent should be released on bail pending trial.
[52] While the Crown concedes that COVID-19 can constitute a relevant material change, the Crown submits that in this case, it does not because: (a) the respondent was detained on the primary and secondary grounds not the tertiary ground; and (b) the respondent's youth, health and the current conditions in the Stratford jail where the respondent would be housed are such that the COVID-19 pandemic is not "relevantly material": Whyte, at para. 26.
[53] The respondent argues that in the case of all bail decisions rendered before the COVID-19 pandemic struck Ontario, the onset of the COVID-19 pandemic constitutes a material change in circumstances for all grounds for detention. As such, reviewing judges are permitted, as a matter of course, to conduct fresh bail hearings de novo. Therefore, there is no legal error in how the second bail judge approached the matter.
[54] The respondent also argues that the Crown's suggestion of proving a medical history that would make one more susceptible to COVID-19 is impractical and, for many bail applicants, impossible to meet as many are marginalized individuals for whom access to medical records would present a significant, perhaps insurmountable hurdle.
Does the COVID-19 Pandemic Alone Constitute a Material Change?
[55] The COVID-19 pandemic constitutes a material change warranting a new bail hearing where the circumstances of the pandemic are "relevantly material" to this respondent in these circumstances. The effect of COVID-19 must be "significant" in the sense that when considered along with the other evidence on the bail proceeding, it could reasonably be expected to have affected the result: St-Cloud, at para. 137 and Whyte, at para. 26.
[56] As noted by the intervenor, "Aside from factoring into the overall balancing that must occur in all cases, [the pandemic] also has the potential to directly impact the analysis on the primary and secondary grounds for detention depending on the circumstances of the case" (emphasis added). Moreover, proportionality is an overarching consideration that can affect the grounds for detention by virtue of the s. 11(e) Canadian Charter of Rights and Freedoms right to reasonable bail: R. v. Myers, [2019] 2 S.C.R. 105, [2019] S.C.J. No. 18, 2019 SCC 18, at paras. 25, 50-51; R. v. Elliot, [2020] O.J. No. 2116, 2020 ONSC 2976 (S.C.J.), at paras. 23-24.
(3) What Factors are to be Considered before Deciding to Conduct a New Hearing?
[57] On a s. 522 application such as this, the respondent has the onus to establish on a balance of probabilities that he should be released: Criminal Code, s. 522(2).
[58] Any "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 [first bail judge]. The new evidence must therefore be significant": St-Cloud, at para. 137. This means the second judge must consider the new evidence in the context of the findings of the first bail judge to see if the new evidence would have affected the balancing exercise engaged in by the first bail judge.
[59] New evidence must therefore be examined having regard to the first bail judge's findings on the factors relevant to the ground of detention in question. In the context of the primary ground, for example, these factors include: the nature of the offence and the potential penalty; the strength of the Crown's case; the respondent's ties to the community; criminal record and history of compliance with court orders; the respondent's behaviour prior to arrest; and the plan of release: The Honourable Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010), at 3.2.
[60] The second bail judge was therefore required to examine the new evidence in respect of the effect of the COVID-19 pandemic on this respondent in these circumstances in light of the first bail judge's findings, in order to decide whether COVID-19 constitutes a change that is "relevantly material" such that it could reasonably be expected to have affected the result.
[61] The second bail judge failed to consider the new evidence in the context of the existing findings of the first bail judge. Instead, he accepted that the COVID-19 pandemic in and of itself is a material change justifying a new bail hearing. He did so without regard for the findings of the first bail judge, and as a result, he failed to consider how COVID-19 was "relevantly material" before deciding to hear the bail application afresh. In so doing he made an error of law.
Can the COVID-19 Pandemic Constitute a Material Change in Respect of the Primary or Secondary Ground for Detention?
[62] The first bail judge detained the respondent only on the primary and secondary grounds and would not have detained the respondent on the tertiary ground alone.
[63] The jurisprudence to date is clear that the pandemic is a factor to be considered when assessing the tertiary ground: public confidence in the justice system: R. v. Morris, [2020] O.J. No. 2548, 2020 ONSC 3526 (S.C.J.), at para. 22; R. v. Kazman, [2020] O.J. No. 1495, 2020 ONCA 251, leave to appeal to S.C.C. requested, file no. 39077; R. v. M. (S.), [2020] O.J. No. 2840, 2020 ONCA 427; and R. v. Abdullahi (2020), 150 O.R. (3d) 790, [2020] O.J. No. 2458, 2020 ONCA 350, at para. 49.
[64] I accept that, depending on the circumstances, the COVID-19 pandemic may also be a factor to be considered when considering the primary ground: that is, whether detention is necessary to ensure this accused''s attendance in court. The pandemic may give rise to new considerations respecting an accused's health and safety and his flight risk and thereby constitute a material change in circumstances in respect of the primary ground: see, e.g., R. v. Grant, 2020] O.J. No. 2109, 2020 ONSC 2957 (S.C.J.); R. v. Hastings, [2020] O.J. No. 1427, 2020 ONSC 2083 (S.C.J.); R. v. Morris, supra; and R. v. Cahill, [2020] O.J. No. 1692, 2020 ONSC 2171 (S.C.J.).
[65] I also accept that, depending on the circumstances, the COVID-19 pandemic may be a factor to consider on the secondary ground, that is, whether the accused's detention is necessary for the protection and safety of the public, including any substantial likelihood that if released, the accused will commit a criminal offence or interfere with the administration of justice: See, e.g., Cahill, at paras. 27-30; Elliott, at para. 19.
Is the COVID-19 Pandemic Relevant and Material in this Case such that it Warrants a New Hearing?
[66] The relevance and materiality of the COVID-19 pandemic requires a review of:
(a) the respondent's age and health;
(b) the conditions at the institution in which the respondent would be detained;
(c) the effect of COVID-19, if any, on whether the respondent will attend court as required; and
(d) the effect of COVID-19, if any, on the threat posed to public safety by the respondent's release.
[67] As noted above, that evidence must be considered along with the findings of the first bail judge to determine whether the new evidence could reasonably be expected to affect the conclusion reached by the first bail judge. Only then is a new bail hearing conducted.
[68] The first bail judge's main concerns on the primary ground were the nature and seriousness of the offences and potential penalty, the strength of the Crown's case, the respondent's limited ties to the community, his behaviour prior to arrest, and the inadequacy of the proposed release plan, given his history of lying to his surety in a previous matter. On the secondary ground, the first bail judge's main concern was similarly the inadequacy of the proposed release plan.
[69] The respondent claims there is an increased risk to his life and health if he is detained in custody given the COVID-19 pandemic and the altered conditions in a detention facility, such as frequent lockdowns, administrative segregation, cancellation of visits from family and friends, or cancellation of programming which call into question any continued justification to detain. He also claims that under his new plan for release, supervision is enhanced with the addition of two new sureties and he is less of a flight risk given the pandemic.
[70] On the primary ground, the respondent points to the revised release plan, the surrender of his passport and COVID-related travel restrictions to argue that the second bail judge correctly held that his flight is unlikely. On the secondary ground, he argues that the first bail judge's concerns about the inadequacy of the release plan were addressed by the proposed plan, which involves additional sureties who have no family connection to him and restrictive conditions. He therefore claims the second bail judge made no error in finding that these were material changes that removed any lingering concerns on the primary or secondary grounds.
[71] In my view, the evidence relating to the respondent's health and conditions in the institution could not reasonably be expected to have affected the first bail judge's concerns on the primary or secondary grounds, whether taken alone or in combination with the proposed plan of release.
[72] The respondent was 28 years old at the time of the second bail hearing with no pre-existing health conditions.
[73] According to Ms. Julie Ireland, Superintendent of the Stratford Jail where the respondent was and would be detained, the Stratford Jail has never had a confirmed case of COVID-19. The institution has only half of the inmate population it usually does, and most, including the respondent (while he was at the institution), are housed in single cells. Where new inmates are brought in, the institution follows a 14-day quarantine protocol in an intake unit before an inmate is put in the living unit.
[74] While this situation is not ideal, the respondent's youth and good health and the many steps taken by the Stratford Jail to maintain the safety of those in the Stratford Jail, are such that at present, the risk of contracting COVID-19 in the institution is low.
[75] I accept that the COVID-19 pandemic represents a serious risk to health. Persons who are members of vulnerable communities such as those incarcerated are often exposed to greater risk of infection as they do not have the ability to move freely and self isolate. I also note that even those who are young and healthy are not immune from the risks associated with contracting the virus.
[76] I do not suggest that for COVID-19-related health concerns to have a bearing on whether an accused's detention is justified under s. 515(10), the accused must present evidence of particular risk. However, the absence of particular risk is relevant in assessing whether the evidence relating to the pandemic is "relevantly material" in this case.
[77] Nor do I take lightly the respondent's fears of contracting COVID-19. However, the present risk is low in the Stratford institution compared to the risk in the general community. If that situation changes, there may be a "relevantly material" change in circumstances.
[78] Moreover, although the supervision plan was modified to include not only the respondent's father but also the respondent's former babysitter and her daughter as sureties, the second bail judge himself noted that they "came across as somewhat naïve in their understanding of the applicant's entire situation" and neither had had extensive contact with the respondent in the period leading up to his arrest for these offences.
[79] Nor does the new plan of supervision address the honesty issues of concern to the first bail judge.
[80] The first bail judge noted that, while the respondent was on bail on other charges (later withdrawn), he failed to tell his parents of those drug charges, and afterwards, when his father agreed to be his surety, he allegedly told his father he was working late although his cell phone was located near a cell tower close to Hamilton's downtown. In addition, there is a recording that appears to have him telling his girlfriend he would lie to his father about where he would be. The first bail judge concluded that "All of this suggests a willingness to disobey bail terms."
[81] The first bail judge also considered the fact that electronic bracelets only advise the authorities once there is a breach; they do nothing to prevent the breach.
[82] Lastly, the first bail judge held that "While a term could be crafted requiring the surrendering of a passport or other travel documents, it would be naïve to consider that someone with some connection to drug trafficking and perhaps to organized crime could not circumvent the same." While the second bail judge held that travel restrictions resulting from COVID-19 made it "unlikely that flight from eventual prosecution will reasonably come to fruition", he did not address the first bail judge's concern about the respondent's opportunities for illegal flight.
[83] In sum, the risks to this respondent's health and safety in the Stratford Jail pending trial and or the change to the strength of the Crown's case are not relevantly material to the primary or secondary grounds of detention such that they could reasonably be expected to have affected the result to detain the respondent, when considered in light of the totality of the first bail judge's findings including the following:
(a) the respondent is charged with very serious offences;
(b) the strength of the Crown's case was such that the respondent should be detained on the primary ground (which decision was upheld by this court);
(c) the respondent has few links to the community; and
(d) the respondent has a history of misleading a surety.
[84] The new evidence in respect of COVID-19 and its effect on this respondent, when viewed in the context of all of the other evidence respecting the primary and secondary grounds, does not constitute a material change in the respondent's circumstances that could reasonably be expected to affect the decision to detain the respondent.
E. Conclusion
[85] I do not agree that the existence of the COVID-19 pandemic necessarily constitutes a material change in circumstance for every bail decision rendered before the pandemic struck Ontario. I accept however, that in a proper case, circumstances arising from the COVID-19 pandemic may amount to a material change in circumstance in respect of any of the grounds for detention such that a new hearing should be conducted. For that to be the case, however, the pandemic must reasonably be expected to have affected the result, bearing in mind the reasons given by the first bail judge for denying bail.
[86] For the above reasons I find:
(a) there is no material change in the strength of the Crown's case;
(b) the existence of the pandemic alone creates no automatic right to a new hearing;
(c) the COVID-19 pandemic does not constitute a relevant and material change in the respondent's circumstances that warrants a new hearing because, when looking at the new evidence in conjunction with the reasons of the first bail judge, it could not reasonably be expected to have affected the result in this case; and
(d) the second bail judge therefore erred in law in conducting a new bail hearing, wherein he decided to release the respondent.
[87] I would therefore grant the application and detain the respondent pending trial.
Application allowed.
NORDHEIMER J.A.: (dissenting): --
[88] I have reviewed my colleague's reasons in which she would allow this review and grant a detention order. I disagree with her analysis and her conclusion. In my view, the application should be dismissed.
I. The Decisions Below
[89] My colleague has set out the background facts and has reviewed the decisions of the first and second bail judges. I take issue with at least one aspect of her review.
[90] My colleague is critical of the second bail judge for making what she asserts is a factual error when he said that "there was no evidence at the original bail hearing from or in respect of A.K., the shop owner where the trackers were purchased". My colleague then extrapolates this asserted factual error into a palpable and overriding error respecting the second bail judge's conclusion that "there is a material change in the circumstances due to a change in the strength of the Crown's case".
[91] In my view, my colleague places an unfair interpretation on what the second bail judge said. Read fairly, the second bail judge was saying that there was no direct evidence from the shop owner at the first bail hearing. All that the first bail judge had was a police officer's recitation of what the shop owner had told the police. And I will add that the police officer's recitation was clearly couched in terms that allowed for a conclusion that the purchaser of the tracking device was not necessarily a white male. As quoted by my colleague, the officer pushed back against the suggestion that it was clear from the shop owner that the purchaser was a white male. Indeed, my colleague quotes the officer's evidence where he said, in response to that direct suggestion:
A. Well, as I said, there was nothing on video. [The shopkeeper] didn't describe anything like that. But I do recall talking to [the shopkeeper] and he just -- he said other people did come in and purchase them, again, couldn't describe -- couldn't recall them, and there's nothing we could -- we couldn't force him to, to make something up. We just asked him what he knew and what he could recall, and that was the best he did.
(Emphasis added)
[92] This point is of some importance because, as put before the first bail judge, there were three parts to the Crown's case against the respondent: (i) he supplied automobiles; (ii) he purchased or negotiated for the tracking devices; and (iii) he assisted in conducting surveillance. The shop owner's evidence at the preliminary hearing essentially negated the second of those three parts. Notwithstanding that reality, the Crown maintains its position that a trier of fact could find that the respondent purchased one or more of the trackers.
II. The Threshold: Was There a Material Change in Circumstances?
[93] The Crown asserts, and my colleague agrees, that neither of the alleged material changes in circumstances were properly characterized as such and that the second bail judge erred in so finding. I do not agree. I will deal with each of the asserted material changes.
(i) The strength of the Crown's case
[94] I have already pointed out the impact on the Crown's case of the direct evidence of the shop owner at the preliminary inquiry. The second bail judge characterized the effect as "some diminution to the strength of the prosecution's case". I consider that to be an entirely fair characterization of what has taken place.
[95] The small window, through which the Crown was attempting to advance its case, i.e., that the shop owner's evidence was sufficiently vague as to allow a trier of fact to conclude that the respondent was involved in the negotiation and purchase of any of the trackers, was essentially closed by the owner's direct evidence at the preliminary inquiry. While the Crown points to the fact that, for other reasons, the preliminary inquiry judge found the owner to be of dubious credibility, that does not really serve to rehabilitate the Crown's case on this point. At most, it leaves the Crown arguing to the trier of fact that the direct evidence of the owner, that would preclude the respondent from being one of the purchasers, should be ignored. Indeed, the Crown goes farther by suggesting that not only should the owner's evidence be ignored, the trier of fact should reach the opposite conclusion, that is, that the respondent did purchase one or more of the tracking devices. The only foundation upon which a trier of fact could rely for that conclusion is the evidence that respondent's cell phone was in the vicinity of the business when some of the trackers were purchased along with a text message from the respondent, to one of the other alleged co-conspirators, that referred, correctly, to the price for the tracker being $350.
[96] In my view, while one can quibble over how much effect this will have on the strength of the Crown's case, one cannot criticize the second bail judge for concluding that it represented "some diminution to the strength of the prosecution's case". Certainly, that conclusion cannot be said to be a palpable and overriding error of fact, as my colleague concludes. Rather, it simply represents a judgment call by the second bail judge. And it represents a change that was relevant and material as that term is understood in the context of bail reviews: R. v. Whyte (2014), 119 O.R. (3d) 305, [2014] O.J. No. 1633, 2014 ONCA 268.
[97] On this point, I would also note that the second bail judge's view of the change to the Crown's case was shared by the preliminary inquiry judge. In a separate ruling during the course of the inquiry, the preliminary inquiry judge said:
Knowledge of the purchase is not the same as actually making the purchase. If there was evidence that he actually made the purchase, it would strengthen the Crown's case as it would put the defendant in personal possession of some of the trackers used to track the murder victim and his family.
(Emphasis added)
[98] There is another aspect to this question, to which my colleague does not make reference, and that is that the first bail judge actually never made any finding regarding the strength of the Crown's case. He recited what the allegations were, but he never actually evaluated the strength of the Crown's case, notwithstanding that, insofar as the first bail judge considered the tertiary ground for detention, he was required to do so: R. v. St-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, at para. 58.
[99] On the point respecting the tertiary ground, the first bail judge did say in his reasons that he found that "all of the four factors under the tertiary ground are triggered": at para. 33. However, the first bail judge then went on to conclude that the tertiary ground, by itself, would not give rise to a detention order. It is not, therefore, clear what the first bail judge's views were respecting the strength of the Crown's case. If the first bail judge thought that the Crown had a strong case, given the nature of the offences charged and the penalty they would give rise to (life imprisonment), it would be difficult to reconcile that fact with the first bail judge's conclusion that detention would not be warranted on the tertiary ground.
[100] Given that reality, it seems to me that there is no proper basis for second-guessing the second bail judge's conclusion that this change was, in fact, material. To a large degree, the second bail judge had to consider this issue very much in a vacuum as it related to the first bail judge's reasons. He was, therefore, entitled to reach his own conclusion on this point.
(ii) COVID-19
[101] The other material change in circumstances that was accepted by the trial judge was the current pandemic. The Crown takes issue with that conclusion by submitting that, while COVID-19 can be a relevant material change in circumstances in some cases, it was not in this case because (i) COVID-19 only properly affects the tertiary ground for detention; and (ii) there was no evidence that the respondent had special susceptibility to, or risk for contracting, the virus.
[102] In my view, the Crown's submission conflates two different questions and, unfortunately, my colleague does the same. Approached correctly, the first question in the analysis is whether the COVID-19 pandemic is a material change in circumstances. Assuming an affirmative answer to that first question, the second question is then whether all of the circumstances of the case, including the pandemic, directs the release of the accused person. Put another way, the answer to the first question "opens the door" to a review. The answer to the second question then goes to whether the detention order ought to be vacated.
[103] In some situations, the impact of the pandemic might, by itself, alter the foundation for a detention order. To borrow the example used by the respondent's counsel, a chronic shoplifter, who might properly be detained on the secondary ground, might nonetheless be released if she was, because of age or other physical conditions, especially at risk for serious harm if she contracted the virus. All of the circumstances would have to be taken into account and a balance made between the risk of the person re-offending and the harm that might befall the person while incarcerated.
[104] That point leads me to say that I do not accept the Crown's position that COVID-19 relates solely to the tertiary ground because only that ground goes to the public's confidence in the administration of justice. The tertiary ground provides a route to a detention order where both the primary and secondary grounds are not engaged. For the tertiary ground to be engaged as a basis for a detention order, s. 515(10)(c) directs that detention order must be necessary "to maintain confidence in the administration of justice".
[105] However, confidence in the administration of justice is not only engaged in situations that fall under s. 515(10)(c). Similarly, confidence in the administration of justice does not relate solely to situations which require the remedy of a detention order. Confidence in the administration of justice underlies the entire bail system. It is an overarching principle that is engaged both in the making of detention orders and in the granting of release orders. Either way, the result must be one that instills confidence in the administration of justice: see, e.g., R. v. Myers, [2019] 2 S.C.R. 105, [2019] S.C.J. No. 18, 2019 SCC 18, at para. 53.
[106] I would observe that concluding that release orders also engage public confidence in the bail system is consistent with the right to bail provided for in s. 11(e) of the Canadian Charter of Rights and Freedoms. While I accept that maintaining confidence may be engaged by requiring a detention order where the requirements of s. 515(10) (c) are met, it may equally be engaged by requiring that a release order be made where "the continued detention of the accused person could erode public confidence in the administration of justice": Myers, at para. 50.
[107] In my view, there can be no reasonable debate that COVID-19 impacts directly on the incarceration of individuals. At the same time, the public's confidence in the administration of justice will be impacted by the manner in which both correctional officials and the courts address that impact. And that engagement on this issue is not confined only to detention orders that were given based on the tertiary ground. It is engaged anytime a person is detained in circumstances where a release order is justified.
[108] I find support for this conclusion in Whyte itself, as the court there accepted that trial delay was a material change in circumstance justifying a release order, despite the fact that, viewed strictly, the consideration that underpinned the first refusal of bail was the lack of a surety and the concern that the accused would interfere with the administration of justice. I find further support in R. v. Dyce, [2016] O.J. No. 2702, 2016 ONCA 397, at para. 2, where Watt J.A. wrote that "[a] material change in the circumstances requires information that could alter the assessment of one or more of the statutory factors governing release pending appeal".
[109] In that regard, I am of the view that COVID-19 constitutes a material change in circumstances with respect to every detention order that was made prior to the advent of the pandemic. COVID-19 changed the lives of every person in this country. Indeed, it has changed the lives of almost everyone on this planet. The appearance of the pandemic necessitated a review of every person who was being held in custody pending their trial, just as it necessitated a review of, and change to, the manner in which detention facilities dealt with incarcerated individuals, including the release of individuals who might not otherwise have strictly merited release in the traditional sense.
[110] The impact of the pandemic does not mean that detention orders will not still be warranted. What it does mean is that the detention of every person needs to be reviewed, in light of the extraordinary situation that the pandemic poses, to ensure that the continued incarceration of a person pending trial will not result in a disproportionate impact. It also means that, going forward, the impact of the pandemic must properly be considered in every bail hearing when determining whether a detention order is warranted.
[111] In my view, there can be no serious issue taken with the proposition that detention facilities are, by their very nature, places where persons will be at greater risk of contracting the virus, should it manage to get into such a facility. While the correctional officials have taken many steps to reduce that risk, the risk still exists. For example, correctional officers routinely move back and forth between public spaces and the detention facility. That reality means that there is an ever-present route for the virus to enter any detention facility. Further, the officers often cannot maintain physical distancing and still properly undertake their tasks. Consequently, the risk of a correctional officer contracting the virus and bringing it into the facility is a very real one.
[112] And that is not the only route for the virus to enter a facility. The reality is that there is a consistent influx of new inmates into detention facilities. That reality provides another avenue for the virus to gain access to a detention facility, notwithstanding precautions that may be taken.
[113] There are also obvious problems with maintaining physical distancing in such a facility among the inmates. While reducing occupancy to one inmate per cell is one necessary and effective step, that step does not alter the realities of inmates being in close proximity to each other at other times, such as for meals or when getting exercise (or at least movement) outside their cells. I note that this was the case in the Stratford detention facility where the respondent was housed.
[114] I would also note, on this point, that, to the degree that some facilities have considered solving these concerns by requiring inmates to eat meals in their cells and exercise on an individual basis, those steps, while militating the risk of transmission of the virus, only increase the negative psychological impact of being incarcerated. Indeed, that general approach to incarceration comes perilously close to a state of facility-wide solitary confinement.
[115] On this point, I reject the applicant's submission that in order for COVID-19 to constitute a material change, the respondent has to demonstrate a special susceptibility to, or risk for contracting, the virus. I also disagree with my colleague's position that "the absence of particular risk is relevant in assessing whether the evidence relating to the pandemic is 'relevantly material' in this case". To place such a burden on an accused person seeking release is unfair for at least three reasons.
[116] One is that bail hearings are often conducted directly after charges have been laid and, of necessity, on a rushed basis. There is little time to obtain and present evidence of the type that would be required to address the many issues that the pandemic presents.
[117] Another is that it is impractical, as well as prejudicial, to impose an evidentiary burden on an accused person regarding a subject like COVID-19, given its medical complexity and its ever-evolving nature, especially recognizing that the vast majority of accused persons will not have access to the necessary resources to comply with that burden.
[118] Yet another is that, as recent developments have proven, it is unrealistic to expect that any accused person will be able to lead evidence of a special susceptibility when the existing medical and scientific evidence cannot explain why some persons have a more serious reaction to COVID-19 than do others. While we know that the elderly, and persons with underlying conditions, may have a more serious reaction, we also know that some younger people (including persons as young as six and seven years old) have died from the virus. There is a great deal that we still do not know about this virus, so to require an accused person to provide evidence of the type suggested by the applicant is to impose on him or her an unrealistic, and unachievable, burden.
[119] The other aspect of COVID-19 as a material change in circumstances comes from the reality that it brings with it an inevitable increase in the delay for cases proceeding to trial. This case is an example of that consequence. The preliminary hearing commenced in November 2019 but was only completed very recently. As of the date of this hearing, it had been two years since the respondent was arrested, leaving only six months remaining on the "Jordan clock". On that point, I note that the Supreme Court of Canada has found that delay in getting a case to trial can, by itself, dictate a review of a detention order and the substitution of a release order: Myers, at paras. 50-54.
[120] In the end result, I cannot find any error in the second bail judge's conclusion that there were two material changes in circumstances in this case: a change to the strength of the Crown's case and COVID-19.
III. The Nature of the Second Hearing
[121] Given my conclusion that the second bail judge was correct in finding two material changes in circumstances, the issue then becomes how that finding impacts on the second bail judge's approach to a "review" of the detention order.
[122] The Crown contends, in essence, that even if a material change in circumstances could be shown, the second bail judge was not entitled to grant a release to the respondent, unless the material change in circumstances itself drove that result. In other words, the Crown contends that the second bail judge should have restricted his consideration of whether the respondent's detention should be altered to only the consequences, if any, that arose from the material change in circumstances. The Crown goes on to say that since the respondent is not specially impacted by COVID-19, that material change in circumstances did not direct that he should be released. Indeed, the Crown appears to go further and suggest that, because there was no evidence that COVID-19 had any special or unique impact on the respondent, the second bail judge was not entitled to consider that material change in reaching his decision. Additionally, the Crown says that any weakening of the Crown's case would not warrant a release.
[123] My colleague seems to agree with that limited scope for the authority of the second bail judge. I do not. More specifically, I do not agree that the function of the second bail judge is so circumscribed. In my view, that narrow approach conflicts with what the Supreme Court of Canada has had to say regarding the proper process to be followed in bail reviews. It is also inconsistent with the general principle, often enunciated but too often not respected, that "release -- at the earliest opportunity and in the least onerous manner -- is the default presumption in Canadian criminal law": Myers, at para. 1.
[124] Once it is established that there has been a material change in circumstances, the second bail judge was entitled to conduct a fresh bail hearing, in other words, a de novo hearing. He was entitled, indeed I would say that he was obliged, to canvass all of the factors under s. 515(10) and make his own determination whether those factors, properly evaluated, including consideration of the changed circumstances, directed that the detention order should be continued. That does not mean that the second bail judge was entitled to ignore what the first bail judge had said nor the conclusions that he reached. But the second bail judge was not bound by those conclusions nor was he "reviewing" those conclusions in the appellate sense of that word. Rather, he was entitled to reach his own conclusions on the central issue, taking into account all of the evidence, including, for example, the revised plan of release. It is also of some moment, on this point, that we do not know if, or how, the pandemic would have affected the first bail judge's view of the matter since his decision pre-dated the arrival of COVID-19.
[125] I find support for my conclusion as to the proper approach in the views expressed in St-Cloud, where Wagner J. said, at para. 138:
If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision maker.
(Emphasis added)
[126] This language does not allow for any ambiguity. It makes clear that the reviewing judge conducts a fresh hearing to "repeat" the analysis. It is also clear that the reviewing judge is not bound by the first bail judge's view of the factors under s. 515(10) nor is he or she constrained to only considering the fresh evidence, i.e., the material change. This is made even clearer by the observation made by Wagner J. in the same paragraph that the reviewing judge "must therefore consider all of the circumstances of the case" (emphasis added).
[127] I would note that the conduct of a review as a fresh hearing appears to have been accepted as the proper approach in this court's decision in R. v. C. (A.A.), [2015] O.J. No. 3450, 2015 ONCA 483, at para. 4.
[128] Finally, on this point, I will say that any other interpretation of the review process would tend to undermine the constitutional right to bail and the overarching principle, to which I referred earlier, that "the release of accused persons is the cardinal rule and detention, the exception": St-Cloud, at para. 70.
[129] The second bail judge conducted a fresh review of all of the circumstances, as I say he was entitled to do. He concluded that neither the primary ground nor the secondary ground required the continued detention of the respondent. He gave detailed reasons for those conclusions. No error has been shown in those reasons. I note that the Crown, once again, did not rely on the tertiary ground for a detention order.
[130] The situation is different when it falls to this court to conduct a further "review" under s. 680. We, unlike the second bail judge, are not entitled to conduct our own analysis and reach our own conclusions. Rather, we conduct an appellate form of review. Consequently, we are not entitled to weigh the factors differently or to substitute our view of those factors for those of the bail judge. Rather, we must find an error of law; a palpable and overriding error of fact; or that the decision under review is unwarranted, before we are entitled to intervene: R. v. Oland, [2017] 1 S.C.R. 250, [2017] S.C.J. No. 17, 2017 SCC 17, at para. 61. None of those tests are made out in this case.
[131] I do not find any error in the second bail judge's conclusion that there were insufficient facts to establish a proper basis for a detention order under the primary ground or the secondary ground. The case involves a young man, with no prior criminal record, who is a Canadian citizen, and who has clear ties to his community, including having a young daughter here. He has lived here most of his life, and he was gainfully employed.
[132] On that point, the factual foundation for my colleague's conclusion that the respondent "has few links to the community" escapes me. I do not see how the respondent has any fewer links to his community that the majority of citizens do, as I have just set out above. I would also observe that the first bail judge's conclusion, as cited and relied upon by my colleague, that the respondent has "some connection to drug trafficking and perhaps to organized crime" is a dubious one. The offences with which the respondent was charged, as they related to alleged drug trafficking, were withdrawn. The reference to the respondent's connection to organized crime assumes the validity of the Crown's assertions for which there is currently little evidence, direct or circumstantial. It could be fairly characterized as conjecture. Neither of these factors provides a sufficient basis for a detention order.
[133] Further, to the degree that there were any concerns respecting the respondent, the second bail judge found that the proposed sureties were reliable, and the proposed plan of release (including electronic monitoring) was sufficient to address such concerns. It does not lie with us to substitute our views on those matters for the views of the second bail judge.
[134] I would add to that the further reality that it does not advance any societal interest to unnecessarily add to the population of incarcerated individuals who are awaiting trial, given the pressures under which our detention facilities operate generally, but especially during the COVID-19 pandemic.1
IV. Conclusion
[135] I would dismiss the Crown's application.
Notes
1 As the Supreme Court of Canada observed in Myers, at para. 26, "Nonetheless, on any given day in Canada, nearly half of the individuals in provincial jails are accused persons in pre-trial custody."
End of Document