Court Information

Court: Ontario Court of Justice

Date: 2020-04-20

Court File No.: Brampton 3111 998 20 3389

Between:

Her Majesty the Queen

— AND —

A.I.

Before: Justice G.P. Renwick

Heard on: 15 and 17 April 2020

Reasons for Judgment released on: 20 April 2020

Counsel

E. Norman — counsel for the Crown

M. Sciarra — counsel for the defendant A.I.

Reasons for Judgment on Show Cause Hearing

RENWICK J.:

Introduction

[1] The Defendant is charged with numerous firearms offences arising out of an incident alleged on 15 April 2019. The parties agree that this is a reverse onus situation, where the Defendant must justify his release on bail, as required by s. 515(6)(a)(viii) of the Criminal Code.

[2] Currently, there is a global pandemic. As is the case around the world, the national response to the COVID-19 crisis has required most Canadians to stay within their homes. In response, the Chief Justice of the Ontario Court of Justice has appropriately suspended the operation of most courts. With the consent of the parties, materials were submitted to the court before the show cause hearing, which was held by teleconference. To conduct the bail hearing, all parties, including myself, called into a pre-arranged teleconference line from separate remote locations. For the most part, this worked well, and there were no complaints by either party with the process or its operation.

[3] The prosecution filed with the court police photographs, video recordings and still images taken from surveillance cameras in the area of the alleged crimes, in addition to videos of the Defendant at his residence. As well, the prosecution relied upon other reports relating to the weapons recovered, the Defendant's weapons prohibitions, the Defendant's criminal record, a DNA "hit" report, and statistics for firearms crimes in Peel Region from 2014-2019. Lastly, in response to the medical evidence filed by the Defendant, the prosecutor submitted a document entitled, "Response to COVID-19 Information Note." Caselaw was also submitted to the Defendant and the court electronically.

[4] The Defendant filed with the court the affidavit of Dr. Aaron Orkin (and related appendices), the affidavits and viva voce testimony of four proposed sureties, an open letter from 150 medical professionals and community members, and a 27-page factum outlining the allegations, the plan for release, the arguments for release, and the cases relied upon.

[5] The Defendant proposes a very strict release with either a 24-hour curfew to remain in his residence, unless he is in the direct presence of one of his sureties, or he is absent from the home for medical purposes. It is also proposed that the Defendant would be out of the house to occasionally work with and be under the direct supervision of one of his sureties, his mother, for a few hours each week.

[6] The prosecutor expressed that all three grounds for detention are in issue, however, there is very little argument to be made that if released there is any real concern that the Defendant would not appear for trial. The Defendant is a Canadian citizen, he has roots in this province, and besides having a passport, there is no suggestion that he has either the means or the inclination to leave the jurisdiction. Moreover, in light of a global pandemic and the closure of international borders to all but essential travel, it is highly unlikely that the Defendant could leave the country, even if he wanted to.

[7] I find that on the primary ground, the Defendant has met his onus to demonstrate that if he is released on bail he would not fail to appear for his trial. The only real issue for my determination is a consideration of the secondary and tertiary grounds for detention contained within s. 515(10)(b) and (c).

The Allegations and Evidence

[8] I have read and considered all materials (well in excess of 300 pages) submitted to the court for this hearing. Given the short turnaround time for this judgment, I do not propose to reference all of the material. Suffice it to say (as may have been evident during my questions and comments during the hearing of the submissions of the parties), I have thoroughly reviewed the materials and I have come to no conclusions about the allegations and evidence or the issues raised until completion of the arguments and my subsequent review of the materials.

[9] The allegations are serious. The Defendant is alleged to have fled from police responding to a shooting, while carrying three loaded handguns, which were abandoned in places to which the public had access.

[10] The Defendant and two other males are allegedly recorded on store/building security footage leaving a Dodge Durango motor vehicle they had just approached and begun to enter, upon arrival of police. One male, A.W., appears to lay an object on the ground as he walks away from the vehicle. Moments later, he is returned to the area of the vehicle by Police Constable Corona. A Heckler & Koch 9mm firearm is recovered by police from A.W.

[11] As the flashing emergency lights of Constable Corona's police vehicle appear in the video footage, the Defendant allegedly ran away and is apparently recorded by no less than four additional security cameras in the area. He appeared to throw a shiny object in some bushes and another pointed object in a dumpster. Police recovered two handguns from the bushes where the man believed to be the Defendant had apparently thrown something as well as a handgun in the dumpster, with an over-capacity ammunition clip. All three handguns are firearms, and all three were loaded with many rounds of ammunition. Security videos also reveal that several pedestrians were also in the area at that time, shortly after 11:00 pm.

[12] In December 2019, police learn that DNA allegedly taken from one of the Glock handguns (the brown firearm found in the bushes) triggered a Convicted Offender Hit Notification relating to the Defendant.

[13] Police prepared a slide deck of the photographs and video recordings in this case. A still image, of very good quality, from one of the videos of the male running away from the Durango provides an excellent image to compare to the apparent likeness of the Defendant taken from other surveillance cameras at the Defendant's apartment building.

[14] I do not know the Defendant. I have never seen the Defendant. The Defendant only appeared remotely by teleconference (audio only) during this bail hearing and I have no idea what he looks like in person today, nor how he appeared on 15 April 2019.

[15] Nonetheless, on the basis of the photographic evidence and the DNA "hit," there is overwhelming evidence that the Defendant is the male who ran through the streets of Mississauga after 11:00 pm, past or near several pedestrians, while fleeing from the police following a shooting, and after throwing away three loaded handguns. The male in the videos appears to match the physical likeness of the Defendant (assuming he is the male purported by the police to be in the building surveillance images) in the following respects: age, gender, skin colour, hair colour, hair length, hairstyle, hairline, facial hair, face shape, body type, clothing worn and recovered from the Defendant's home, and footwear style and dark colour.

[16] On the basis of propensity reasoning and the Defendant's criminal record, it is obvious that if it is proven that the Defendant is involved in these allegations, he is a criminal who has led a criminal lifestyle since 2014, involving loaded handguns. On this basis, if it is proven that the Defendant committed these offences, he is a dangerous man who is brazen and willing to run from the police with loaded firearms, all while endangering the public, and contrary to two court orders prohibiting him from possessing firearms.

[17] The Defendant was arrested on 26 March 2020 in the home he shares with his parents (two of the four proposed sureties). Police found clothing matching the generic clothes worn by the man alleged to be the Defendant in the surveillance photographs and videos. As well, in the bedroom usually occupied by the Defendant, police found an empty ammunition magazine for a firearm (no calibre of type of firearm is known) and approximately $10,000 cash. Also, concealed in a vent above the laundry area was an empty firearm box.

[18] The firearms statistics adduced reveal an unfortunate reality for Peel Region. Gun crimes, like those alleged here, are serious, significant, and soaring. That said, these concerns can never predominate the decision of a reasonable bail for those who qualify.

[19] There is no suggestion that since the time of these alleged offences (April 2019), the Defendant has committed other offences or otherwise interfered with the administration of justice leading up to the date of his arrest.

[20] S.G. is the Defendant's mother. She is a Canadian citizen in her 50's with no criminal record. Ms. G. owns a cleaning franchise and is the sole supporter of the family. Ms. G. testified that she has been a successful surety for the Defendant in the past and she believes the Defendant would follow her direction if released on bail.

[21] Part of her evidence revealed that Ms. G. had rescinded her bail supervision of the Defendant's brother in November 2018. She testified that she not only revoked the bail, but she also reported the matter to the police. Ms. G. testified that items found in the apartment and thought to be offence-related property by the police (a debt ledger and approximately $10,000 in cash) related to her former grocery and clothing business and her husband's share of the proceeds of a property, recently received on a trip to Kenya.

[22] I had difficulty accepting the truth of some of Ms. G.'s testimony. Among other areas, Ms. G.'s evidence respecting the police entry and the arrest of her son, her evidence respecting her husband's relative, M.A.A., and her testimony concerning her assets left the court with some doubt about her credibility and overall suitability as a surety. Some examples from her evidence will make this more obvious.

[23] First, Ms. G. testified that when the police entered her apartment, both by the 17th floor balcony and by her front door, she did not initially realise that they were police officers. She used the word "invade(d)" to describe their entry. Ms. G. testified that she had to ask who they were before they actually identified themselves. Moreover, when the police were taking control of the Defendant, Ms. G. testified that they tasered him three times, they were standing with their boots on his head, and they were kicking and punching him.

[24] I fully appreciate that it must have been somewhat jarring when the police executed a dynamic entry into the Defendant's residence on the night of his arrest. I accept Ms. G.'s evidence that many officers came suddenly into the apartment, by at least two points of entry, and they used a distraction device (commonly called a "flash-bang" for the amount of light and noise it produces), which Ms. G. described as an "explosion." I also accept that the police used force to take control of the Defendant.

[25] All of this, while significant and surprising to the occupants of a home, is understandable. The police were about to execute a search warrant at the residence of someone with a known history of loaded firearm possession and someone about whom police believed had possessed three loaded firearms when he fled from police in April 2019. The level of potential danger facing the police officers about to enter the Defendant's home was incalculable and should not be minimized.

[26] That said, police are not entitled to use force gratuitously upon arrestees. While the Supreme Court has held that it is not the place of courts to second-guess the minutiae of police tactics, a trial court will certainly have to consider whether the overall force used to enter the home and arrest the Defendant was appropriate in all of the circumstances. The point here, is that I do not accept that it was not immediately obvious that the uniformed police officers were readily recognizable as such.

[27] Second, there would be little reason to taser, punch, and kick a defenceless person who was cooperating with police. There is no suggestion that any force was used against the Defendant's parents by these same officers. For this reason, I do not accept Ms. G.'s descriptions of the force used by the police during the apprehension of her son. It stands to reason that a parent may perceive such a disturbing event, as the arrest of a son, in an exaggerated way.

[28] As well, the photographs produced by Ms. G. depict a couple of different marks and what appears to be boot prints, possibly in a small amount of blood on the floor. In cross-examination, Ms. G. agreed that blood was "everywhere." She testified that her son had been bleeding from his nose, and that it took her several days to clean all of the blood left from the beating experienced by her son. This is implausible and unsupported by the photographs she produced. Moreover, other than the evidence of Ms. G., which I find is exaggerated, there was no evidence that the Defendant suffered any significant injuries as a result of his arrest.

[29] Third, when asked about the driver's license and passport in the name M.A.A. found in one of the bedrooms, Ms. G. testified that these documents had been left by M.A.A. when he left for a job out west. I took this to mean he had left the province. Though it is somewhat strange that a relative would leave key pieces of documents (especially a driver's licence) in someone else's home, that did not cause me any concerns. However, the import of Ms. G.'s evidence was that the documents had been left in the residence some time ago, and M.A.A. had not been seen in quite a while. This was completely contradicted by the second proposed surety, Ms. G.'s spouse, A.M.

[30] A.M. testified that M.A.A. had come by for a visit "yesterday," meaning the day before he testified ("yesterday," for this witness, would have been 14 April 2020). Leaving aside the public health warnings against having visitors during our community's attempts to "flatten the curve" and control this pandemic, this evidence is difficult to reconcile with the impression left by Ms. G.'s that M.A.A. was out of the province, and he had not been at the apartment for some time.

[31] Fourth, there was also a detail in the witness' narrative that was not consistent across the whole of her testimony. In her examination in chief, Ms. G. testified that she was in the living-room when the police entered the apartment. In cross-examination, she was asked why she did not think to photograph or record the intrusion and the apprehension of her son with her cellphone. Ms. G. testified:

I don't know who they were. It was a sudden invasion of our apartment. I didn't know who they were, when they came in there, and I left my cellphone in the living-room.

[32] Fifth, at another point during cross-examination, Ms. G. was asked about the bedroom where approximately $10,000 was located by the police. This part of her cross-examination was as follows:

Q. So, the room that that money was found in, is that the room that your husband goes to sleep in when he's not feeling well?

A. No, it's the other, the other room.

Q. So, your son, [A.I.]'s room, or your room?

A. Can you repeat the question, again, please?

Q. So, there are three bedrooms in your home, you sleep in one; [A.I.] sleeps in another, and then there's a room that your husband sometimes sleeps in. Which room was the money in?

A. Yes, the room, you know, where my husband sleeps when he's not well.

It is obvious that Ms. G.'s testimony completely reversed itself in respect of the simple matter of where the money was found.

[33] Lastly, I am concerned about an apparent discrepancy in the assets claimed by this witness. At paragraph 29 of her affidavit, Ms. G. states:

I have no RRSPs and approximately $7000 in savings. I share a vehicle with my husband, A.M., valued at $46,000. I have no other assets. [Emphasis added]

[34] When, with the permission of the parties, I asked Ms. G. about her assets, she testified that initially she had $7,000 in the Royal Bank, but she had cashed in some investments and now had (an additional) $8,000 in the bank. Counsel for the Defendant followed this up and asked if the witness was willing to pledge the entire $15,000 of her savings, "if need be" to bail out her son. Ms. G. answered, "yes." There was no explanation offered for the provenance of this money and the contradiction of her affidavit.

[35] Also, the court learned for the first time that the vehicle owned by the Defendant's parents, which was stated as an asset worth $46,000 in the affidavits of both, is not unencumbered. Ms. G. testified that their 2019 Honda motor vehicle is being financed.

[36] The prosecution also suggested that the Defendant's brother, G.[I.], who is wanted by the police may have been at the building in recent months, however, there was no evidence that Ms. G. or Mr. M. would have been aware of their other son's presence in the area.

[37] In the end, I have little confidence that Ms. G. was entirely candid and truthful as a witness. I would not go as far as the prosecutor to suggest that she is wilfully blind to the criminal lifestyle of the Defendant, but her shortcomings as a witness did not persuade me that she could effectively supervise the Defendant.

[38] The Defendant's father was proposed as a surety as well. He has successfully acted as the Defendant's surety in the past, and because he is unemployed, he is willing to supervise the Defendant continuously.

[39] Unlike his wife, I accept most of the testimony of Mr. M.

[40] Strangely, Mr. M. was not aware how much money his wife had recently obtained by redeeming an investment, nor the amount of money she had agreed to pledge. However, at the end of his testimony when I asked him how much money he and his wife had in savings, he testified, "about $15,000."

[41] My biggest concern with Mr. M. was the last portion of his testimony concerning when, while acting as G.[I.]'s surety, he revoked his supervision, in November 2018. The following are the questions asked and the answers given:

Q. At paragraph 31 of your affidavit, sir, you explain that the reason you withdrew your surety for G. [I.] was because you were unhappy with his decision to associate with someone that you disapproved of. Do you remember swearing that in an affidavit?

A. Ya, that's correct.

Q. You did not include in that affidavit, what you stated today at this bail hearing that your son was refusing to come home. Can you explain why you left what you said in court today out of your affidavit?

A. Yes, that was the end of...I mean they were, ah, when he refused, you know to listen to me, with regard to obedience of the conditions, then I had no choice, everything else you know was minimum. But that was the key thing and I had to report him to the police.

Q. Okay. But what is "everything else?" What is the minimal stuff that you're referring to that G. was not abiding by?

A. Everything is secondary. If somebody that you have a surety is for and they don't listen to you, then you have to report him to the authorities. Everything else is minimum.

Q. Sorry to interrupt you. But what is the "minimum" stuff that you're referring to?

A. Listen to me. He had to tell me…[the interpreter was interrupted by the witness]. He has to tell me where he's going, what he's doing. If he doesn't tell me these basics, then I cannot be responsible for him.

Q. And how long had G. not been telling you where he was going and what he was doing?

A. How long?

Q. Ya, how long?

A. It was, I cannot remember the exact date, but it was in November.

Q. Before November 5th, when he refused to come home?

A. Ya, when on November 5th, when he won't come home; I give him a blank order to come home and when he refused, I took back, I withdrew my surety.

Q. I'm not talking about the demand for him to come home. What I'm talking about, is the disobedience that you characterized as "minimal" or "secondary." So, aside from your demand that he come home, when did he start disobeying you by not telling you where he was and what he was doing?

A. Between November 1st to November 5th, about that time.

Q. So on November 1st, when your son that you pledged money for disobeyed you, you do not call the police, correct?

A. Ya, at that time, in that period, it was just a suspicion…(inaudible)…very sure, until November, you know to come back home. That was (inaudible).

Q. So at no point between November 1st and November, before the time you ultimately call, despite your suspicion of your son breaking your rules and the court's rules, do you contact…

[Objection by Defence counsel. Court asks prosecutor to rephrase the question.]

Q. Sir, at no point between the 1st and the 5th, and I'm not talking about when you did call the police, at no point in between that, those two time periods, when you suspected your son was breaking your rules, did you pull your surety or contact the police.

A. Before the 5th, there was no serious breach of the conditions, and I just had my suspicions. It was just a suspicion, and till November 5th, when I told him to come back home and he refused.

Q. I'm going to suggest to you sir, that the real reason that you pulled your surety on G., is because you were made well aware that he was looking to be arrested by Windsor police for attempt murder with a firearm on October 31st 2018, in Windsor, do you agree or disagree?

A. [Interpreter asks for the date.]

Q. I'm going to suggest to you sir, that the reason you pulled your surety was because you knew that Windsor police was looking to arrest your son G. for attempt murder with a firearm on October 31st 2018, in Windsor.

A. I completely, you know, disagree, you know with that proposition. I disagree, you know, with you. Because, you have to ask yourself, they knew that I was a surety, you know for my son, you know, G. If what they say happened in Windsor, they had our address. They could have come and told us about. For that proposition, I don't agree.

[42] During these parts of his evidence, I lost confidence that Mr. M. would adequately supervise this Defendant. His apparent equivocation over whether his other son, G., was abiding by his supervision in November 2018, and his reluctance to investigate his suspicions undermined my confidence in Mr. M.'s suitability as a surety in this case.

[43] Mr. A.A. was the next proposed surety. He is a carpenter and the Defendant's cousin. While he usually works anywhere from 40-72 hours a week, given the global pandemic, his work appears to be suspended. He offered to have the Defendant live with him, and to take the Defendant to his work, if the Defendant is granted bail. Mr. A.A. is willing to pledge $10,000 to secure the good behaviour of the Defendant. I had no concerns about either Mr. A.A.'s intentions or his suitability to become a surety, in general.

[44] Mr. K.H.K., another of the Defendant's cousins, was the last proposed surety. He is a foreign medical school graduate who hopes to pursue his licensure as a medical doctor in Canada. He is serious and earnest. Although he is of limited means and he could only pledge $1000, he struck me as someone not likely to gamble away almost half of his limited savings. Again, I had no concerns about either Mr. K.H.K.'s intentions or his suitability to become a surety, in general.

[45] The Defendant also relies upon the affidavit of Dr. Aaron Orkin, an epidemiologist (both in practise and as a research scientist) and Assistant Professor at the University of Toronto.

[46] His evidence is credible and compelling and mostly unchallenged. Dr. Orkin paints a disturbing picture of the inevitability of COVID-19 infecting those within "congregate living" facilities such as nursing homes, homeless shelters, or jails.

[47] Dr. Orkin notes that the lack of pharmaceutical therapeutics to inoculate the population or to treat this virus dictates that "population health management" is the main strategy to reduce the incidence of contraction, prevent the healthcare system from becoming overwhelmed, and lower the rate of morbidity.

[48] Simply put, Dr. Orkin believes that social distancing measures are the best defence against infection and jail facilities are incapable of providing enough space between inmates to adequately protect them. Once the virus is introduced into a facility, which is "extremely likely" according to Dr. Orkin, the infection rate is exponential and uncontrollable. And, according to this expert, the virus will likely cause many institutional deaths, given the particular vulnerabilities of jail populations before traversing the locked confines of the jails into our wider community. One need only consider the current crisis in Ontario's long-term care facilities to appreciate the logic of this evidence.

[49] Similar to the open letter of 150 community health professionals, Dr. Orkin advocates for an extremely limited use of detention centres and the depopulation of people currently incarcerated in order to protect the broader community and the healthcare system as a whole:

Similarly, every person who is discharged from a correctional facility to a private residence is an opportunity to flatten the curve and improve health for the individual involved, other inmates in the facility in question, staff at the facility in question, and the public. Decanting the existing population in correctional facilities – especially those who are healthy and able to self-isolate in lower density private residences – will reduce the population density in correctional facilities and therefore reduce the risk of infection for both the individuals who are discharged from those facilities and the people who remain there.

Depopulating correctional facilities in response to COVID-19 is an accepted public health strategy, already underway in several Canadian, American and European jurisdictions.

From a medical and population health perspective, it is in the best interest of the community at large that an aggressive approach be taken to depopulating custodial facilities, be they jails, prisons, penitentiaries, reformatories or detention centers, and whether they be for males or females, youths or adults.

[50] Dr. Orkin's opinions take into account the Information Notes provided by the government respecting the efforts made to depopulate jails and sanitization precautions. His view remains unchanged: depopulation of custodial facilities is the best course of action in light of the significant risks associated with the spread of this coronavirus.

[51] I was advised that as of 17 April 2020 only one case of an infected person has been discovered in the detention centre where the Defendant has been kept. The person was discovered to be infected upon admission to the facility and he was immediately sent to a nearby hospital.

Discussion

Secondary Ground Concerns

[52] As the trier of risk, the secondary ground requires the court to assess whether there is a substantial likelihood of further criminality or a danger to public safety if a defendant is released on bail.

[53] In this case, because of the reverse onus, it is for the Defendant to establish on a balance of probabilities that he has mitigated the risks associated with his release by the supervision proposed through his sureties.

[54] I must also note that it is not lost on the court that the Defendant is presumed innocent of his charges and it is oxymoronic that the Defendant carries a persuasive burden to earn his constitutional entitlement to reasonable bail.

[55] Overall, I have two significant problems with the plan for release that was presented to the court. The first is in respect of the proposed sureties and the second concerns the Defendant.

[56] My reservations for all of the proposed sureties, leaving aside the reasons already offered for the unsuitability of the Defendant's parents, result from their ignorance of the Defendant's apparent lifestyle.

[57] Since 2014, it appears that the Defendant has left school and become enmeshed in a criminal lifestyle. It is particularly alarming because the Defendant's criminal antecedents and these allegations reveal a side of the Defendant which has been completely hidden and largely misunderstood by his family.

[58] Mr. A.A. believes that the Defendant's conviction for possession of a Schedule I substance for the purpose of trafficking in 2018 related to the Defendant possibly using drugs, although he had no evidence that this was the case. Instead, he chose to surmise that the Defendant was merely experimenting with drugs, while acknowledging that the Defendant was unemployed at the time. Mr. A.A. unreasonably and naively failed to consider that the Defendant's drug possession was likely for the purpose of trafficking as a means to making money.

[59] Equally troubling, Mr. K.H.K. described these alleged offences as a "mistake" or "some sort of error happened."

[60] All of the proposed sureties suffer from the same myopic dissonance. While they believe that the Defendant respects them and follows their advice, every indication is that the Defendant has chosen a different path for his life.

[61] This brings me to my second overwhelming concern with the evidence received during this show cause hearing: there is a complete absence of evidence with respect to the Defendant's commitment and intention to follow anyone's supervision if he is released on bail.

[62] Assuming that all of the proposed sureties are completely adequate and the plan of release is appropriate, I have no confidence that the Defendant is even minimally interested in following the terms of the proposed release or the supervision of his family.

[63] Until now, it seems that the Defendant has failed to abide by his parents' counsel to stay out of trouble over the past 10 years. Moreover, in 2018, half-way through his 18-month probation order, the Defendant was convicted of failing to comply with probation. Lastly, some 13 months after the Defendant was prohibited for the second time from possessing any prohibited or restricted firearm for life, he is alleged to have possessed three loaded, firearms – two of which are restricted, while one is a prohibited firearm, pursuant to the definitions found within s. 84(1) of the Criminal Code.

[64] If ever there was a case where a defendant's testimony could possibly have made a difference in respect of overcoming his onus on the secondary grounds, this was it. Without it, I am not satisfied that this plan has any real hope of success.

Tertiary Ground Concerns

[65] Recently, in R. v. Rajan, Justice D.E. Harris succinctly summarized the nature of the tertiary ground:

The tertiary ground is premised on the reasonable views of the public, as envisaged by the judiciary. When the four statutory factors in ss. i to iv are taken into account, the tertiary ground may require detention if there is a very serious, troubling crime alleged against the accused, it is likely that the accused will be convicted and when he is, that he will be incarcerated for a very substantial duration. It would be an affront to the public that in these circumstances, an accused be released into the community.

[66] However, Justice Harris articulates a reconsideration of the tertiary ground in light of the current public health crisis:

In the world we are living in, the proper application of the tertiary ground for refusing an accused bail has been radically altered. This ground of bail is not based on an accused's risk to the community or the importance of ensuring attendance in court. It is anchored exclusively in the perceptions of the public and the maintenance of confidence in the system of bail.

The simple fact is that a reasonable and informed member of the public would be wary of keeping alleged offenders in pre-trial custody for the sole purpose of advancing confidence in the system of justice. The dangers to the prison population--both inmates and staff--posed by the risk of contagion have reordered the usual calculus.

The tertiary ground must, for the time being, be looked at in a new light.

[67] In the end, Justice Harris suggests a recalibration of the tertiary ground for detention, where it is used exclusively to detain a defendant:

The Canadian public understands the momentous nature of this crisis and would be greatly concerned for the health of inmates and staff in institutional settings. In the public's mind, the real and tangible threat of contracting the virus may well supplant the otherwise negative reaction to the release of an accused person. The public is not short-sighted but would look at the long-term reputation of the administration of justice. In the face of the pandemic, bail release, in the absence of primary or secondary ground concerns, may well not shake the confidence of the public. [Emphasis added]

[68] The Rajan decision is referenced in another recent case, R. v. Williams. However, the court in Williams refrains from making "general pronouncements about the effect of COVID-19 on the application of the tertiary ground in circumstances that are not before [the] court." In fact, Justice Stribopoulos concludes that the tertiary ground was an independent basis to detain Mr. Williams in all of the circumstances of that case.

[69] Respectfully, on a plain reading of the provision, I conclude that the tertiary ground can apply as an independent basis to detain a defendant in appropriate cases. Subsection 515(10)(c) specifically requires "having regard to all the circumstances" in a given case.

[70] While the legislators who created subs. 515(10)(c) could not have foreseen the dire health situation created by this novel coronavirus, the clear wording of the provision requires an assessment of whether public confidence in the administration of justice requires detention, even in these extraordinary times.

[71] I accept that no reasonable member of the public would unnecessarily wish to risk the health of a presumptively innocent person, but there are individuals, the release of whom would certainly risk public safety more than their continued detention during a global pandemic.

[72] When assessing all of the factors enumerated in subs. 515(10)(c) and taking into account all of the circumstances, including the frightening warnings of Dr. Orkin, with which no real issue can be taken, I conclude that the Defendant has not overcome his burden on the tertiary ground, for the reasons indicated below.

[73] This is an extremely strong, if not overwhelming, circumstantial case for conviction. This factor strongly favours detention. In saying this, I recognize that the prosecution's case is artificially enhanced at the bail stage where admissibility issues are presumed in the prosecution's favour and the evidence has not been tested. For example, although I conclude that the Defendant is the man depicted in the images and videos taken near the crime scene, based upon his alleged appearance in the March 2020 video images, if the police are mistaken with respect to the identity of the man seen in the images recorded in the Defendant's building, the prosecution's case would entirely unravel.

[74] These offences are serious. They occur in close proximity to a shooting involving a person or persons associated to the males who fled the Dodge Durango. The allegations include that all three recovered firearms had partly-full ammunition magazines; so, although the investigation to date has ruled out participation by the three men at the Durango vehicle, there remains the possibility that the shooting involved one or more of the firearms allegedly abandoned by the Defendant.

[75] Regardless, the risk to public safety by someone running through city streets with three loaded handguns, which were tossed into places to which the public had access, is significant. The gravity of these offences is only mitigated by the fact that no one was hurt. This factor also strongly favours detention.

[76] The circumstances surrounding the commission of the offence include that the Defendant is a convicted firearm offender who is twice prohibited from possessing firearms and yet he is alleged to have possessed multiple firearms that were loaded, including one with a high-capacity ammunition magazine which was almost full. This factor also strongly favours detention.

[77] There is no question that if convicted of these offences, even accounting for the jump principle, the totality principle, and the first penitentiary sentence discount to which he is entitled, the Defendant would receive a significant penitentiary sentence in the high single digits. This factor also strongly favours detention.

[78] I have considered the rise of gun crime in our region. This evidence serves to bolster my view that public confidence would be lost if the Defendant's detention was not ordered in this case.

[79] The only factor that weighs against the Defendant's detention is the health crisis we currently face. Even accepting that this factor militates in favour of the Defendant's release, and that in close-call cases this factor must tip the balance for the reasons expressed by Dr. Orkin, this single determinant does not overwhelm every other consideration before the court. The Defendant, according to the evidence of his mother, is healthy and is not likely to be at risk of lasting or significant illness or death if he contracts the virus.

[80] I also agree with the prosecution, that the precautions and testing undertaken by the authorities seem to be working. Although the incidence of COVID-19 is greater in Ontario custodial institutions than in the general population (3.6 times greater according to Dr. Orkin), there have been very few COVID-19 cases in Ontario jails after almost three months of the first case in Ontario (only 5 total cases, or 5% of those for whom test results are known of a population of more than 6000 inmates across 25 provincial institutions). The wildfire scenario predicted by Dr. Orkin appears to have been doused, to date.

[81] I have no doubt that if the Defendant were released on bail in these circumstances, this would undermine public confidence in the administration of justice, regardless of the $26,000 pledged, the four proposed sureties offering around the clock supervision, and the stringent terms of release.

Conclusion

[82] For all of these reasons, I conclude that the Defendant has failed to show cause why his detention in custody is not justified under the secondary and tertiary grounds.

[83] Subject to the Order of another court, [A.I.] is detained until his discharge or acquittal on all charges.

Released: 20 April 2020

Justice G. Paul Renwick

Footnotes

[1] At the conclusion of the bail hearing, at the Defendant's request I imposed a publication ban on the publication of these proceedings, the evidence and allegations received, the submissions made, and these reasons, pursuant to s. 517 of the Criminal Code. For clarity sake, this does not prohibit reproduction of these reasons by a legal journal or reporting service.

[2] See: 11 March 2020 Media Announcement by World Health Organization.

[3] When the video of this last deposit is stopped and advanced frame by frame, the male, who is alleged to be the Defendant, is seen retrieving from his waist. As he passed a white charity drop box before turning to throw the object into the dumpster, the silhouette of the object is captured.

[4] I am aware that there is some controversy in the evidence about which bedroom this is (see paragraph 32, below), so, not much weight is given to this part of the allegations.

[5] See R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 at paras. 31 and 24, where the majority held:

…the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[6] The Defendant takes issue with this allegation based on Officer Davidson's notes to the contrary.

[7] This utterance seems to have come from the interpreter, directly, rather than the witness.

[8] Excerpt from paragraphs 33-35 of Dr. Orkin's affidavit.

[9] See R. v. Zreik, [2014] O.J. No. 3385 at para. 9, per S.C. Budaci J.P.

[10] Although there were no dates given by Mr. K.H.K. respecting when the Defendant left university, the Defendant's age (23 at the time of his first conviction in 2014), and the absence of any mention by any other proposed surety that the Defendant has been pursuing his education suggest that he has not been in school for many years.

[11] R. v. Rajan, 2020 ONSC 2118 at para. 43.

[12] Rajan, supra, at paras. 38-40.

[13] Ibid., at para. 70.

[14] 2020 ONSC 2237 per Stribopoulos J: see paragraph 135.

[15] Ibid., at para. 137.