WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD

(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) FAILURE TO COMPLY — Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in sub-paragraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:

486.4(3) CHILD PORNOGRAPHY

(1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: April 14, 2020

Between:

Her Majesty the Queen

— and —

Kenneth Arsenault-Lewis

Ruling: Judicial Interim Release

[THIS DECISION HAS BEEN EDITED TO COMPLY WITH THE PUBLICATION ORDERS. THE DECISION MAY BE PUBLISHED OR USED BY COUNSEL IN OTHER COURT PROCEEDINGS]

Counsel for the Crown: E. Evans

Counsel for the Defendant: D. Reeve

Judge: Felix J.

Table of Contents

• I. Introduction
• II. Procedural Considerations
• III. The Allegations
• IV. The Decision
  • A. Judicial Interim Release – The Framework
  • B. The Plan
    • 1. Mother
    • 2. Stepfather
    • 3. Father
  • C. Primary Grounds
  • D. Secondary Grounds
  • E. Tertiary Grounds
    • 1. Apparent Strength of the Prosecution's Case
    • 2. Gravity of the Offence
    • 3. Circumstances of the Offence
    • 4. The potential for lengthy imprisonment
    • 5. COVID-19 Pandemic
    • 6. Evidentiary Record in support of the COVID-19 Pandemic
    • 7. Conclusion – Tertiary Grounds

I. Introduction

[1] The defendant is charged with the following criminal allegations:

1. Luring for the purpose of invitation to sexual touching (s.172.1(1)(b));
2. Luring for the purpose of make child pornography (s.172.2(1)(a));
3. Extortion (s.346(1));
4. Possession of child pornography (s.163.1(4));
5. Access child pornography (s.163.1(4.1));
6. Possession of child pornography (s.163.1(4)); and
7. Access child pornography (s. 163.1(4.1)).

[2] The matter proceeded before me on April 9, 2020 by way of audio teleconference for the purpose of a full-day judicial interim release hearing. At the conclusion of the day, I provided an oral ruling indicating that the Crown had not met the onus for detention on either secondary or tertiary grounds. I ordered the defendant released on terms. Given the time of day (approximately 4:30 PM), the logistics around producing relevant court documents, and the steps needed to facilitate the release of the defendant, I provided only brief oral reasons. I indicated that written supplementary reasons would be provided as soon as possible to the parties. These written reasons, produced over the Easter weekend, explain why the Crown did not meet the onus concerning detention.

[3] The parties litigated the circumstances surrounding the COVID-19 pandemic. For the reasons that follow, I find that I may take judicial notice of the general circumstances surrounding the unprecedented pandemic. Further, during this hearing, the defendant provided testimony concerning conditions in the jail. I find that I may consider the evidence of the defendant, the supplementary information filed by the defence (e.g., news reports), and the information filed by the Crown sourced directly from the authorities responsible for the jail.

[4] I find that the defendant is not particularly susceptible to COVID-19 due to his age or medical circumstances. I find, on the record placed before me, that there is no ability to practise "social distancing" in the detention centre as it pertains to housing or lining up for meals, telephones, or showering.

[5] Notwithstanding these circumstances, I want to make it clear that I did not (and would not) release the defendant simply because of the COVID-19 pandemic. Further, I did not release the defendant because of an overemphasis on COVID-19. The current pandemic is simply one factor to consider in all of the circumstances.

[6] I considered the secondary and tertiary grounds and determined that the Crown had not met the onus for detention. Had I concluded that the Crown had demonstrated a basis for detention on either ground – I would have detained the defendant because of his demonstrated risk to the public, notwithstanding the circumstances of a pandemic.

II. Procedural Considerations

[7] This proceeding occurred during the COVID-19 pandemic. The Regional Senior Justice of the Ontario Court of Justice assigned judges to assist with "special bail hearings" -- bail hearings scheduled to take several hours or more -- as a direct response to the pressures caused by limited court availability.

[8] Defence counsel in the Crown communicated with the trial coordinator and the trial coordinator secured time for the bail hearing. Defence counsel received instructions from his client seeking an audio conference bail hearing.

[9] In advance it was understood that witnesses would be called. Both the Crown and defence consented to conducting the bail hearing by way of audio conference per s.515(2.3) of the Criminal Code. I was satisfied with the arrangements made by the trial coordinator: ss. 502.1(1) and 515(2.2.) of the Criminal Code.

[10] Defence counsel sent a comprehensive electronical brief including surety declarations, the defendant's affidavit, documentary evidence, and caselaw. In a practise that should be emulated, the PDF caselaw was bookmarked with the appropriate passages. The Crown Attorney also sent a comprehensive electronical brief. Thanks to the professionalism of counsel, all documentary evidence was admitted without the need for cross-examination. Further, I had the opportunity to consume the filed material, several hundred pages, in advance of the hearing.

[11] On April 9, 2020, I found that the Crown had not shown that the defendant's detention was required on secondary or tertiary grounds. I ordered the defendant's release on a Release Order with three named sureties and a number of restrictive conditions. The defendant is essentially on total house arrest with no unsupervised access to connect to the internet.

[12] These brief reasons are being provided electronically to counsel and the clerk of the court on April 14, 2020. There will be no appearance in court so that there is no impact on precious audioconference and videoconference time at the institution. These written reasons may easily facilitate any review of this decision in the Superior Court given such reviews are likely being conducted in writing and a reviewing court might encounter difficulties obtaining transcripts at this time.

[13] The entire electronical record filed by both parties is filed as an exhibit on this proceeding. Counsel took care to identify any portion of the electronical record filed but it was understood that counsel was relying on the entire record. To eliminate the need to file a paper record of approximately 400 pages I undertook to the parties that the Ontario Court of Justice would maintain the record and provide it to the Superior Court if required.

III. The Allegations

[14] The allegations are comprehensively detailed in the synopsis for a show cause hearing. By way of high-level summary, it is alleged that in 2017 the defendant communicated with a 13-year-old girl in the United States and coerced her into sending nude intimate images to him. It is also alleged that the complainant masturbated for the defendant over a video chat on approximately four or five occasions. On January 29, 2020, the police executed a search warrant and found the defendant inside a residence. The police also seized evidence during the search warrant including a USB drive with over 9000 images of child exploitation. The defendant's phone was forensically examined, and the name used by the person communicating with the child in the United States in 2017 was discovered. The phone number used by the person communicating with the child was linked to the defendant via production order results. The name used by the person communicating with the child was found in the child's email notifications and the person had joined the same Google+ circle. This information was found on a phone seized from the defendant during his arrest. The defendant's phone showed evidence of searching for child exploitation material. The investigation into the contents of the material seized from the defendant is ongoing.

IV. The Decision

A. Judicial Interim Release – The Framework

[15] The parties did not litigate the framework applicable to judicial interim release hearings. As such, I will only briefly address four, central, harmonizing, considerations. First, the defendant is presumed innocent unless his guilt is established beyond a reasonable doubt: Charter of Rights and Freedoms, s. 11(d). Second, the defendant is entitled to reasonable bail: Charter, s. 11(e). Third, the Supreme Court of Canada has recently emphasized the "ladder principle" approach to bail in R. v. Antic, 2017 SCC 27 [Antic] and R. v. Myers, 2019 SCC 18. The Court in Antic set out the important applicable principles at paragraph 67:

67 Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

(a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b) Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis, at para. 23. This principle must be adhered to strictly.

(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

(f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.

(i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case.

(j) Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person's behaviour or to punish an accused person.

[16] Fourth, the approach of the Court in Antic has been codified through the C-75 amendments to the Criminal Code. The default approach to the latter of release is to order a release without conditions: s.515(1) of the Criminal Code. Thereafter, the least onerous and reasonable bail conditions must be imposed in accordance with the ladder principle described in Antic: ss.493.1 and 515(2.01) of the Criminal Code. The Court should carefully evaluate the need for a cash deposit and should exercise restraint in requiring sureties: s.515(2.03) of the Criminal Code.

[17] The tenor of these four considerations is to re-emphasize that judicial interim release on reasonable conditions is the norm.

B. The Plan

[18] The plan presented by the defence involved a release order with three supervisory sureties – the defendant's mother, father, and stepfather. The mother of the defendant was proposed as a surety in the amount of $1000.00. The stepfather of the defendant was proposed as a surety with no monetary amount. He gained employment seven days prior to the bail hearing and he did not have any savings or assets. The father of the defendant was proposed as a surety in the amount of $1000-$1500.00.

[19] The plan involved the defendant living with his mother and stepfather under house arrest. All devices in the residence capable of connecting with the Internet were specifically identified by the sureties and these devices would be password-protected.

[20] I did not find the initial plan presented by the defence to be sufficient to address the secondary or tertiary grounds. However, during the preceding, the plan evolved. The central issue concerned a gap of unsupervised time where the defendant's mother and stepfather would be at work and he would be home alone. This gap was addressed by the additional supervision proposed by the defendant's father, grandmother, and other family members who live nearby. These relatives would be available to supervise the defendant for the few hours when his mother and stepfather were at work. I ultimately found that these sureties understood their obligations and would honour the conditions of a release order.

1. Mother

[21] The defendant's mother is currently employed. She strikes me as a hard-working individual. She takes the TTC back and forth to work. Her work involves a higher risk group of individuals given the pandemic. I did not find that it was necessary for her to give up her employment for the purpose of supervising her son.

[22] This witness struck me as blunt and straightforward. I am convinced that she will uphold the release conditions. I am satisfied that she will perform as a surety.

[23] The defendant's family is not of great monetary means. The amount of money pledged by his mother is the total amount of her savings to date. It is a significant amount of money for her.

[24] This witness explained the number of items in the residence capable of accessing the Internet and the fact that they would be password protected and the defendant would not have access to these items.

[25] The cross-examination theme around the lack of discussion in the family as it pertains to the defendant's conviction in the United States did not cause me to find the defendant's mother to be unable to supervise. The defendant's conviction in the United States is something that common-sense straightforward people should be ashamed of. It is not surprising to me that family members did not probe the circumstances in great detail. This would not be unusual for many families. I've also considered that the defendant was presenting as someone who had moved on with his life. He was living with a family friend and both going to school and working.

[26] The most impressive feature of this witness's testimony was revealed during the hearing when it came out that she had presented herself as a surety in February 2020. During that proceeding, having heard the allegations for the first time, this witness withdrew her support as a surety and the bail hearing was "struck" by the presiding Justice of the Peace. The defendant remained in detention from February until this hearing.

[27] This witness explained that she was shocked by the allegations, she had a mental breakdown, and she needed time to process everything. Thereafter she went and secured further support from the defendant's father and stepfather and had discussions with his cousins and his grandmother before deciding that she had the support necessary to present herself as a surety once again. I was impressed by this witness. It was plainly apparent that she took her obligations as a surety very seriously.

2. Stepfather

[28] The defendant's stepfather was not an impressive witness. He held a vague recollection of the circumstances of the defendant in 2010. He lacked attention to detail. I find that he lacked a significant connection to the defendant. It is quite apparent that he has not held any serious discussions with the defendant about his conviction in the United States and has not been instrumental in the defendant's life. Finally, it was difficult for this witness to answer simple questions posed to him by the Crown Attorney. He was mildly evasive, and I suspect untruthful to a degree.

[29] But in the end, I balanced these negative observations against the fact that he is the defendant's stepfather and perhaps his closer relationship is with the defendant's mother. Further, the defendant is not a child requiring the daily guidance of this witness as a stepfather. At the time of arrest, he was living with a family friend on his own. Finally, I am satisfied that this witness will support the defendant's mother, his partner, in supervising the defendant.

[30] This witness was not clear about his criminal record. His surety declaration appears to minimize his criminal record. During the preceding he expanded and acknowledged his greater criminal record. I would not automatically bar a surety based on the simple fact of a criminal record. The circumstances have to be assessed and suitability of the surety considered. I accept that to some degree there might have been some confusion about the surety declaration particularly given these times of remote contact. I further find that the record is old and not relevant to this witness's ability to supervise as a surety. Finally, I have disabused my mind of any evidence related to un-charged conduct or conduct for which no criminal conviction resulted.

[31] The simple fact is this witness is going to assist his spouse with supervising the defendant because he's living in his residence. I'm satisfied that his loyalty to his spouse is sufficient to give me confidence in his ability.

3. Father

[32] At the outset, I asked defence counsel if he was seriously proposing this witness as a surety given the criminal record filed by the Crown in advance of the hearing. It is fortunate for the defendant that his lawyer ignored my concern and persisted in calling this witness because he was an impressive and convincing surety.

[33] This witness had a two-page criminal record going back to 1987. Of immediate concern for the court was a conviction for obstruction in 2010, a conviction for failed to comply with the recognizance in 2002, and a trafficking conviction in 1991. I am satisfied that this witness is suitable to be a surety notwithstanding my initial concerns based on his criminal record. The obstruction conviction involves providing a false name to the police while driving to obscure other culpability. The breach of recognizance speaks for itself as does the trafficking conviction. But the reality is the last conviction for this gentleman was in 2010. This witness explained his societal circumstances and the challenges he faced during this time. I'm satisfied with this explanation.

[34] Most impressive was the fact that this witness made it crystal clear that he viewed the defendant as guilty and as someone who needs serious help. He agreed with the proposed plan involving the defendant residing with his mother primarily because he has a 16-year-old daughter who lives with him and he told the court that it would be inappropriate for the defendant to be in the same household.

[35] This witness spoke with the defendant in the aftermath of his conviction and sentence in the United States and demonstrated interest in trying to help the defendant.

[36] This witness explained that the defendant needs mental health treatment and the family has made recent efforts by contacting medical facilities but is unable to get an appointment at this time given the current pandemic.

[37] This witness openly acknowledged that the defendant led him to believe that he was doing better. It is clear that this witness perceived the defendant as making some gains and "turning the corner" so to speak on his past. He had no inkling that these allegations would surface. Now that they have, he is committed to getting the defendant assistance.

[38] Notwithstanding my initial concerns, this witness was a powerful and persuasive surety. His eyes are wide open. He was clear and deliberate in his answers to the court. And I am absolutely convinced that he will do everything he can to make sure the defendant abides by the release conditions.

[39] This witness has a car and will escort the defendant wherever he needs to go, and he is also part of the plan to be supervising the defendant while his mother and stepfather are at work. It is fortunate that the defendant's mother, stepfather, and father all appear to get along. The defendant stepfather took pains to make it very clear that there was no bar to them working together cooperatively.

C. Primary Grounds

[40] The primary grounds were not litigated by the parties in this judicial interim release hearing. I agree that there are no primary grounds concerns given the plan present by the defence.

D. Secondary Grounds

[41] Secondary ground considerations were untouched by Parliament in the recent amendments. The secondary ground concern is focused on the substantial likelihood that the defendant will commit another criminal defence or interfere with the administration of justice. In addition, I must consider whether detention is necessary for the protection or safety of the public including any victim, witness to the offence, or persons under the age of 18.

[42] The prosecution has not established that detention is necessary based on the criteria in s.515(10)(b) of the Criminal Code. In particular, given the plan presented by the Defence, the prosecution has not established that it is "significantly likely" that the defendant will commit a criminal offence – a probability, rather than a possibility: R. v. Manasseri, 2017 ONCA 226, at para. 87.

[43] The allegations involve the defendant communicating for a sexual purpose with a child. In 2012 the defendant was charged with "Travelling into the United States for Purposes of Engaging in Illicit Sexual Conduct with Another Person". He pled guilty. He was sentenced to 24 months of incarceration and five years of supervised release with conditions. In December 2013 the defendant was released from prison and deported back to Canada.

[44] The full facts surrounding the defendant's arrest and imprisonment are contained in Exhibit 1 – Synopsis for Show Cause Hearing. That record discloses that the defendant was detained at the US border by American border officials. He was in possession of a laptop computer and the computer had images of a female child engaged in sexually explicit conduct. The defendant identified the female child as his girlfriend who he knew to be under the age of 16. The defendant explained that he was having a cyber sexual relationship with his girlfriend which involved penetration digitally and with foreign objects via Skype. The defendant also admitted that he and his girlfriend made the arrangements via Skype to have him attend United States for the purpose of engaging in sexual intercourse with her. The defendant admitted that he had previously crossed the border and engaged in sexual intercourse with her.

[45] This conduct is extremely serious on its own but is particularly serious given that in January 2010 the Toronto police cautioned the defendant about engaging in a relationship with a child – the same child described has his girlfriend in 2012. In 2010, the defendant admitted that he had been chatting with this child but denied receiving any images of child exploitation. Images of child exploitation were found on the child's video camera by US investigators no images were found on the defendant's computer which had been reformatted three times during the preceding week deleting everything from his computer.

[46] The facts in support of the defendant's plea of guilt in 2012 make it clear that he continued to have contact with the child notwithstanding the caution by the Toronto police.

[47] In my view, the plan ultimately presented by the defence is adequately directed at the secondary ground concerns. Pursuant to my Order, the defendant will not leave Ontario and his travel documents will be deposited with the officer in charge of the case. He does not currently have a passport and pursuant to my order will not apply for a new one. This mitigates the risk associated with the defendant travelling to the United States to have contact with the complainant or her family when and if the current order restrictions are relaxed.

[48] The allegations are three years old. There is no evidence that the defendant has contacted the complainant since the timeframe of the effects. Pursuant to my Order the defendant will not use any Internet-capable electronic device except pursuant to admittedly very strict conditions including the direct supervision of a surety. In such circumstances it is extremely unlikely that he will have contact with the complainant in the United States. Further, I have placed strict conditions on his contact with any child under the age of 16 period.

[49] The defendant's criminal conviction in the United States dates back to 2012 and involves travelling for illicit purposes. There will be no unsupervised or unescorted travelling by the defendant.

E. Tertiary Grounds

[50] In R. v. A.A.C., 2015 ONCA 483, at paragraphs 46 to 52 the Court of Appeal concisely summarized the proper approach to the tertiary ground:

46 In my view, four important considerations concerning the application of s. 515(10)(c) emerge from St-Cloud.

47 First, St-Cloud clarifies the ambit of s. 515(10)(c). In St-Cloud, the Supreme Court rejects an unduly restrictive interpretation of the section's scope and holds that the tertiary ground for detention is not to be interpreted narrowly or applied sparingly. As the court puts it, the section is not necessarily limited to exceptional circumstances, to unexplainable crimes, to the most heinous of crimes involving circumstances similar to those in Hall, or to certain classes of crimes: at paras. 5, 47, 50, 53 -- 54, and 87.

48 Rather, the Crown may rely on s. 515(10)(c) to support detention for any type of crime, so long as the Crown proves -- except in the cases provided for in s. 515(6) of the Criminal Code, of which this is not one -- "that the detention of the accused is justified to maintain confidence in the administration of justice": at para. 54. In this context, the fact that detention may be justified on the tertiary ground only in rare cases is but a consequence of the application of s. 515(10)(c); it is neither a precondition to its application nor a criterion the court must consider or the purpose of the section: at para. 50.

49 Second, St-Cloud reiterates the holding in Hall that each of the four listed factors in s. 515(10)(c) and their combined effect must be considered, together with all other relevant circumstances, when detention is sought to be justified under the tertiary ground: at para. 68.

50 Consequently, "[a] court must not order detention automatically, even where the four listed circumstances [in s. 515(10)(c)] support such a result": at para. 87. The s. 515(10)(c) inquiry requires a balancing of the listed factors, together with any other relevant factors, in order to answer the ultimate question: whether detention of the accused is necessary to achieve the purpose of maintaining confidence in the administration of justice: at paras. 69 and 87.

51 Third, St-Cloud addresses the bail review authority under ss. 520 and 521 of the Criminal Code. With respect to those sections, St-Cloud instructs that it will be appropriate for a bail review judge to interfere with a bail justice's decision in one of three circumstances: i) if the bail justice erred in law; ii) if the impugned decision was "clearly inappropriate"; or iii) where new evidence submitted by the accused or the prosecutor shows a material and relevant change in the circumstances of the case: at paras. 121 and 139.

52 Fourth, where bail is sought on a review under ss. 520 or 521 of the Criminal Code based on new evidence that is said to constitute a material change in circumstances, the admissibility of that new evidence is to be evaluated in accordance with a modified version of the four-part test for the admission of fresh evidence set out in Palmer v. The Queen, [1980] 1 S.C.R. 759: St-Cloud, at paras. 128 -- 29. However, "[g]iven the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end", and in view of the relaxed approach to the rules of evidence at bail hearings mandated by s. 518 of the Criminal Code, the four Palmer criteria are to be applied in a flexible fashion: at para. 129.

[51] The analysis required under the tertiary ground involves consideration of the four factors outlined in s.515(10)(c) along with all of the circumstances and relevant factors in order to determine whether detention is required in order to maintain confidence in the administration of justice.

1. Apparent Strength of the Prosecution's Case

[52] The apparent strength of the prosecution's case is relatively strong. It would appear based on the record produced on this hearing that identification issues will dissolve if the circumstantial record produced on this hearing is admitted.

[53] While I recognize that a search warrant signed by a judicial officer is presumptively valid, I also recognize that based on the record produced on this hearing there is a significant gap of time between the investigation and the United States in the search warrant and arrest here in Canada.

[54] Notwithstanding the investigation dates back to 2017, the ITO remains sealed so neither party is able to opine on Charter issues. The prosecution was not able to advise whether or not the search warrant was augmented by the provision of NCMEC information by the American authorities.

2. Gravity of the Offence

[55] The specter of adult persons engaging in child abuse and child exploitation activities is of obvious concern. This is of particular concern where someone who has been previously convicted of such conduct is before the court on new allegations.

3. Circumstances of the Offence

[56] The allegations involve coercive child exploitation behaviour on the part of the defendant. This is a very serious allegation and frankly exhibits a predatory element not always present in cases of luring.

4. The potential for lengthy imprisonment

[57] There is no question that if this defendant is found guilty, he will serve a lengthy prison sentence.

5. COVID-19 Pandemic

[58] A focus of the bail hearing involved the parties litigating the impact of COVID-19 on the court's assessment of secondary and tertiary grounds. The parties filed all the relevant bail reviews from the Superior Court dealing with these issues. I have read all of the court decisions filed and a few additional decisions including: R. v. J.S., 2020 ONSC 1710, at paras 10, 18-19; R. v. T.L., 2020 ONSC 1885, at paras 34-36; R. v. C.J., 2020 ONSC 1933, at para. 9; R. v. King, 2020 ONSC 1935, at paras. 58-59; R. v. Cain, 2020 ONSC 2018, at paras. 6-9, 11, 25; R. v. Hastings, 2020 ONSC 2083, at paras. 49-54; R. v. Rajan, 2020 ONSC 2118, at paras 68-70; R. v. Cahill, 2020 ONSC 2171, at paras. 27-30; R. v. Kazman, 2020 ONCA 251.

[59] The Defence submits that the circumstances surrounding the COVID-19 pandemic are relevant to both secondary and tertiary grounds. I found the circumstances to be relevant to tertiary grounds only.

6. Evidentiary Record in support of the COVID-19 Pandemic

[60] The defendant presented an affidavit and through that affidavit testified to the following:

1. He has been in the Toronto South detention Centre from January 30, 2020 to April 9, 2020.
2. He suffers from PTSD, anxiety, and depression and is currently taking Clozapine and Prozac to manage symptoms. He was only permitted to obtain a prescription from a doctor to receive the medications on March 10, 2020.
3. He has been subject to lockdown on several days during his time in remand.
4. Between March 20 and March 25, 2020, he was not permitted to leave his cell at all and therefore did not shower or use the telephone.
5. Jail guards are wearing gloves and masks but not consistently.
6. There was no noticeable immediate action taken in response to the COVID-19 pandemic inside the institution.
7. He is unable to engage in social distancing isolation as he is within two metres of his cellmate.
8. He has heard hearsay information that both inmates and guards have come down with COVID-19 including news reports.
9. There has been no attempt to address social distancing measures on the range, in cells, during recreation, when lining up for meals, when lining up for telephones, or when lining up for showers.
10. There are only two showers provided on the range for approximately 35 inmates. There is only one shower currently working. Showers appear to be cleaned in the morning but there does not appear to be any sanitization of the shower area in between inmates.
11. Given his very large stature he was not provided with a change of clothes for approximately the first month of his time in remand. Since then he has received clean shirts and underwear but often the outer garments are unavailable once again due to his large stature.
12. He used the same bedding from January 30, 2020 until the end of March 2020.
13. He has contracted a rash on his back and shoulders and has been provided with the cream to treat it but unfortunately cannot reach the area given his large stature.
14. Incarceration has negatively impacted his mental health circumstances.
15. He will abide by any release conditions ordered by the court.

[61] The Defence also filed numerous media reports, information from the provincial government, and an open letter from medical professionals titled "Release Prisoners to Protect Public Health: Open Letter from Medical Professionals to Canadian Federal, Provincial and Territorial Governments" dated April 6, 2020.

[62] The Crown filed a document titled "Response to COVID-19 INFORMATION NOTE" authored by the Assistant Deputy Minister's Office of the Ministry of the Solicitor General dated April 7, 2020.

[63] I find that there is credible or trustworthy evidence (s.518(1)(e) of the Criminal Code) that a serious pandemic is occurring. As a Judge of the Ontario Court of Justice I am not required to live like a hermit on the top of some distant mountain descending each day to adjudicate. Each day the Prime Minister of Canada, the premier of Ontario, and a number of other authorities present updates on the progression of the pandemic and the measures that must be taken to mitigate serious consequences.

[64] I find that there is credible or trustworthy evidence that the health-related safety measures are difficult to practice within the confines of a jail. I am aware that jails are locations where prisoners are in close proximately. I am also aware of the findings of P. A. Schreck J.'s in R. v. Persad, 2020 ONSC 188. That there is a risk to the defendant in Metro South is within the realm of judicial notice and experience in the criminal justice system. In addition, I have the unchallenged affidavit evidence of the defendant in this bail hearing documenting the current situation.

[65] Finally, notwithstanding the evidentiary record presented by the defence I am not convinced that the circumstances surrounding COVID-19 present any greater risk to the defendant because of his peculiar medical circumstances.

[66] This is not a release premised on the COVID-19 pandemic. It is a release premised on the statutory obligation to consider the relevant secondary and tertiary ground factors. The current pandemic is simply one relevant factor. It should not, and was not, over weighted in my decision.

[67] In my view, aligning the evidence for and against the risks of COVID-19 should not become the core focus function of a bail hearing. To be explicit, if the defendant was not releasable on the secondary and tertiary grounds, I would not have treated the current pandemic as a lynchpin promoting release.

7. Conclusion – Tertiary Grounds

[68] I am cognizant that the tertiary grounds are not reserved for stark horror criminal allegations or any particular category of offence (e.g. murder). That being said, the prosecution has not demonstrated the basis for detention on the tertiary ground.

[69] Put another way, while reasonably informed members of the public should have some cause to be concerned about the defendant's behaviour, the circumstances of the allegations in the background of the offender simply do not meet the test for detention on the tertiary grounds.

[70] The allegations involve serious criminal conduct committed by way of an electronic means. While I accept that the harm allegedly done by this accused to a child is not yet fully ascertainable, allowing him to remain under the supervision of his parents under strict house arrest terms would not do violence to the public's perception of the criminal justice system.

Released: April 14, 2020

Signed: "Justice M.S. Felix"