Court File and Parties

Ontario Court of Justice

Date: 2020-05-15

Court File Nos.: Toronto 19-35005603, 19-15003974, 19-15003975

Between:

Her Majesty the Queen Respondent

— And —

Hans Adrian Thomas Applicant

Before: Justice Patrice F. Band

Judgment regarding Application for Judicial Interim Release

Counsel:

• Ms. P. Larmondin, counsel for the Crown
• Ms. B. Petrouchinova, counsel for Mr. Thomas

Introduction

[1] Mr. Thomas applied for judicial interim release in respect of two separate matters, each involving a firearm: the "Scarborough matters" dated February 7, 2019 and the "Old City Hall matters" dated June 5, 2019. The Crown was opposed to Mr. Thomas's detention on the primary, secondary and tertiary grounds. The onus was on Mr. Thomas by virtue of the nature of the charges and the fact that he was bound by recognizances and weapons prohibitions.

[2] This hearing took place by way of teleconference on May 12. On May 13, I advised the parties that Mr. Thomas's application was granted. He was ordered to reside with two sureties on a strict house arrest bail with electronic monitoring. These reasons explain why.

The Allegations

[3] The parties filed written materials in advance. The facts are lengthy and must be read with care to be fully understood. For this reason, and for the sake of efficiency, I have reproduced the bulk of the parties' Joint Brief of Facts below.

The Scarborough Matters

[4] Mr. Thomas is charged with the following offences:

(a) Unauthorized possession of a firearm, contrary to section 91(1) of the Criminal Code;

(b) Possession of a firearm knowing its possession is unauthorized, contrary to section 92(1) of the Criminal Code;

(c) Unauthorized possession of a firearm in a motor vehicle, contrary to section 94(1) of the Criminal Code;

(d) Possession of a non-restricted firearm for the purpose of trafficking, contrary to section 100(1) of the Criminal Code;

(e) Careless storage of a firearm (transport), contrary to section 86(1) of the Criminal Code;

(f) Careless storage of ammunition (transport), contrary to section 86(1) of the Criminal Code;

(g) Possession of a firearm while prohibited, contrary to section 117.01 of the Criminal Code;

(h) Possession of a firearm while prohibited, contrary to section 117.01 of the Criminal Code;

(i) Failure to comply with a probation order, contrary to section 733.1 of the Criminal Code;

(j) Possession of an identification document (Social Insurance Card in the name Padraic McGuire) that relates to another person, contrary to section 56.1 of the Criminal Code;

(k) Use a forged document (Social Insurance Card in the name Padraic McGuire), contrary to section 368 of the Criminal Code;

(l) Possession of an identification document (Ontario Driver's licence in the name Padraic McGuire) that relates to another person, contrary to section 56.1 of the Criminal Code;

(m) Use a forged document (Ontario Driver's licence in the name Padraic McGuire), contrary to section 368 of the Criminal Code; and

(n) Operate a vehicle while prohibited, contrary to section 320.18 of the Criminal Code.

[5] On February 7, 2019, police were in the area of Kingston Road and Lochleven Drive, Toronto. While in the area, an officer observed several males wandering in and around a dark coloured motor vehicle. The vehicle was in the Centro Pizza parking on 3406 Kingston Road. The vehicle was parked with the front-end facing Kingston Road.

[6] The officer observed a male party wearing a pom-pom toque exiting Centro Pizza and entering the front passenger side of the motor vehicle. A short time later, a second male was observed exiting Centro Pizza and entering the rear passenger side of the motor vehicle. The second male was wearing a dark two-toned top with dark sleeves. The second male remained in the vehicle for a short time. He was then observed exiting the vehicle and walking into the lobby of 3398 Kingston Road.

[7] Approximately 5 minutes later, the second male was observed exiting 3398 Kingston Road holding an object wrapped in an unknown covering that was wrapped in black tape. Police believed the second male was exhibiting the characteristics of an armed person. The second male was observed opening the rear passenger door of the motor vehicle and throwing the object inside the motor vehicle. He then entered the rear of the motor vehicle and remained inside the vehicle for approximately 5-10 minutes.

[8] Both the front passenger and the rear passenger exited the motor vehicle. The second male was observed walking hastily into Centro Pizza, and the male who was wearing the pom-pom toque was observed walking onto the property of 3398 Kingston Road.

[9] The officer made her observations known to other officers in the area. The motor vehicle was then observed exiting the parking lot of Centro Pizza. The officer proceeded to follow the motor vehicle in question, until additional resources were available to assist, never losing sight of it.

[10] The driver, (who was later learned to be Hans Adrian Thomas) was observed to be driving in an erratic manner, slowing down to speeds of approximately 40 km/hr, then speeding up in excess of the posted 60 km/hr. He was also observed placing the vehicle in reverse at one point and searching around the motor vehicle while driving.

[11] The vehicle was stopped on McCowan Road, south of Lawrence Avenue East. Officers approached the motor vehicle and observed Mr. Thomas to be the only occupant inside the vehicle. Mr. Thomas was detained, and an investigation ensued. The investigating officers observed an object in the rear of the motor vehicle at which point it was confirmed that it was a shotgun. Mr. Thomas was placed under arrest, given his rights to counsel, and transported to 43 Division to be held for a show-cause bail hearing.

[12] Mr. Thomas was searched, and an Ontario Driver's Licence was seized and a SIN card; both were in the name of Padraic McGuire. Further investigation revealed that the Driver's Licence number does not exist within the system, and also that Padraic McGuire does not exist.

[13] On February 13, 2019, it was learned that the fingerprints taken from the inside rear passenger side door handle (inside the handle) were a match for Jerome Cole. Mr. Cole was arrested on February 15, 2019 at 3406 Kingston Road, Toronto.

The Old City Hall Matters

[14] Mr. Thomas is charged with the following offences:

(a) Unauthorized possession of a firearm with ammunition readily accessible, contrary to section 95(1) of the Criminal Code;

(b) Unauthorized possession of a firearm, contrary to section 91(1) of the Criminal Code;

(c) Possession of a firearm knowing its possession is unauthorized, contrary to section 92(1) of the Criminal Code;

(d) Unauthorized possession of a firearm in a motor vehicle, contrary to section 94(1) of the Criminal Code;

(e) Tampering with a serial number, contrary to section 108(1) of the Criminal Code;

(f) Careless storage of a firearm, contrary to section 86(1) of the Criminal Code;

(g) Careless storage of ammunition, contrary to section 86(1) of the Criminal Code;

(h) Possession of a firearm while prohibited, contrary to section 117.01 of the Criminal Code;

(i) Possession of a firearm while prohibited, contrary to section 117.01 of the Criminal Code;

(j) Possession of a firearm while prohibited, contrary to section 117.01 of the Criminal Code;

(k) Failure to comply with a recognizance, contrary section 145(3) of the Criminal Code;

(l) Failure to comply with a recognizance, contrary section 145(3) of the Criminal Code;

(m) Failure to comply with a recognizance, contrary section 145(3) of the Criminal Code;

(n) Failure to comply with a recognizance, contrary section 145(3) of the Criminal Code;

(o) Failure to comply with a probation order, contrary to section 733.1 of the Criminal Code;

(p) Operate a vehicle while prohibited, contrary to section 320.18 of the Criminal Code.

(q) Possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act;

(r) Possession of oxycodone for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act;

(s) Possession of MDEA for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act;

(t) Possession of proceeds of crime of a value not exceeding $5000, contrary to section 354(1) of the Criminal Code.

[15] On June 5, 2019 officers from the Toronto Police Service Gun and Gang Task Force were conducting surveillance on Darren Letts who was wanted regarding an outstanding domestic assault. Information was obtained that lead the police to believe that a firearm was used in the commission of the offence. Surveillance was conducted on Mr. Letts who was observed travelling in a Chevy Uplander van with the accused, Hans Adrian Thomas. Mr. Thomas was driving the vehicle.

[16] At approximately 3:01 pm, a high-risk takedown was performed at a Toronto area gas station on the vehicle. While the arrest was being effected, the vehicle was placed in reverse hitting the police vehicle that was blocking the suspect vehicle from leaving the scene. Both accused remained in the vehicle with the doors locked.

[17] After the police were able to enter the vehicle, Mr. Letts was arrested, and Mr. Thomas was detained. The vehicle was searched, incident to arrest. During the search of the vehicle, the following items were located:

(a) One (1) Rockland .45 calibre semi-automatic handgun was located on the floor between the middle seats of the van;

(b) One (1) magazine and eight (8) rounds of .45 calibre ammunition were located in a sock on a middle row seat passenger side;

(c) 2.9 grams of cocaine was located in a small bag that was sitting on the front passenger seat (where Letts was seated);

(d) 1.64 grams of cocaine was located in a shoe, behind the middle passenger seat;

(e) 1.38 grams of oxycodone was located in a shoe, behind the middle row passenger seat;

(f) 4.38 grams of MDEA was located in a shoe, behind the middle row passenger seat;

(g) 6.59 grams of MDEA was located in a gym bag in the trunk area of the van;

(Total drugs seized: 4.54 grams of cocaine, 1.38 grams of oxycodone, and 10.97 grams of MDEA)

(h) $1,915.00 (Canadian currency) was seized from a satchel on middle row seat driver's side;

(i) $47 (American currency) was seized from a satchel on middle row seat driver's side;

(j) A black puck press jack, along with metal cylinder presses, were seized from trunk area;

(k) Cling wrap and electrical tape were seized from the trunk area;

(l) One (1) black Infinity scale was located on the knapsack that was sitting on the middle row passenger seat;

(m) Men's clothing and other personal items were located in the trunk area of the van (NOTE: the clothing sizes were consistent with the size of clothing worn by Mr. Letts);

(n) Two (2) cellular telephones were located in the front area of the van; and

(o) The owner of the van is Ilesha Brown. Ms. Brown provided a statement indicating she had purchased the van a couple of weeks earlier. She believed that Mr. Letts had taken the van earlier in the week to a mechanic to "get it fixed". Ms. Brown confirmed that she did not own any of the property that was located in the van. She specifically confirmed that she had no knowledge of either the gun or the drugs that police located in the van.

Breach Counts

[18] At the time of his arrest of the matters relating to the Old City Hall matter, Mr. Thomas was the subject of three (3) firearms prohibitions orders; a probation order, a recognizance of bail, and a driving prohibition order.

Probation Order

[19] On October 31, 2018, Mr. Thomas was placed on probation for a period of 2 years after being convicted of theft of motor vehicle, operate motor vehicle while disqualified, assault, assault with a weapon. Conditions of the probation order included: not to possesses any weapons as defined by the Criminal Code.

Recognizance dated April 12, 2019

[20] On January 4, 2019, Mr. Thomas was charged with several firearm offences and was held pending a show cause hearing. He was later released on a recognizance of bail which included the following conditions: 1. Remain in your residence at all times, except when you are in direct and continuous presence of Khadra or Mubarik Nur; 2. Do not possess any weapons as defined as by the Criminal Code; 3. Do not operate or have care of a motor vehicle.

Weapons Prohibition Order

[21] On October 31, 2018, Mr. Thomas was placed on a weapons prohibition order for ten years, as a result of being convicted for assault and assault with a weapon. The order prohibited him from being in possession of any firearm or ammunition as defined by the Criminal Code.

Driving Prohibition Order

[22] On October 31, 2018, Mr. Thomas was placed on a driving prohibition for a period of one year, prohibiting him from driving on any street, road, highway, or public place after being convicted of driving while disqualified.

Additional Facts

[23] On March 7, 2020, Mr. Thomas entered a guilty plea to one count of failure to report. As part of the plea agreement, Mr. Thomas agreed to enter a guilty plea to information 19-400007022 and a joint submission request would be made for a sentence of 14 days. The facts for Informations 19-40006645 and 19-29723 were read in but, the informations were marked withdrawn after sentencing. The agreed facts in support of the guilty plea included inter alia:

Failure to Report, Occurrence: 19-975141 / Information: 19-400007022

[24] On October 31, 2018, Mr. Thomas was convicted of theft of motor vehicle, operate motor vehicle while disqualified, assault and assault with a weapon by the Honourable Justice T. Breen, of the Ontario Court of Justice. Mr. Thomas was sentenced to a sixty-three (63) day intermittent sentence and a probation order (for a period of 2 years) that required him to report to a probation officer within seven (7) working days of his release from custody and after that, at all times and places as directed.

[25] On February 7, 2019, Mr. Thomas was arrested in relation to the Scarborough matter. While in custody, on March 6, 2019, he met with Andrea Mitchell, a Liaison Officer with the Ministry of the Solicitor General. At that time, Ms. Mitchell reviewed the terms of the probation order with Mr. Thomas. Specifically, Ms. Mitchell instructed Mr. Thomas to report in person to his Probation and Parole officer within two working days of his release from custody. Mr. Thomas acknowledged the instructions in writing and a copy was provided to him.

[26] Mr. Thomas was granted bail on April 24, 2019. He did not report to Probation and Parole as directed.

Failure to Report, Occurrence: 19-148613 / Information: 19-40006645

[27] On October 31, 2018, Mr. Thomas was convicted of theft of motor vehicle, operate motor vehicle while disqualified, assault and assault with a weapon by the Honourable Justice T. Breen, of the Ontario Court of Justice. Mr. Thomas was sentenced to a sixty-three (63) day intermittent sentence and a probation order (for a period of 2 years) that required him to report to a probation officer within seven (7) working days of his release from custody and after that, at all times and places as directed.

[28] On December 3, 2018, Mr. Thomas last reported in person to his probation and parole officer. On that date, he confirmed his address at 232-2 Valhalla Inn Road, Toronto and was instructed to report in person on December 10, 2018. On December 10, 2018, Mr. Thomas failed to report and made no attempts to contact his probation and parole officer to explain his absence. Between December 10, 2018 and December 27, 2018, attempts to locate Mr. Thomas through collateral contacts, correspondence and telephone were unsuccessful and his whereabouts are unknown.

Unlawfully at Large, Occurrence: 19-40669/ Information: 19-29723

[29] On October 31, 2018, Mr. Thomas was convicted of theft of motor vehicle, operate motor vehicle while disqualified, assault and assault with a weapon by the Honourable Justice T. Breen, of the Ontario Court of Justice. Mr. Thomas sentenced to a sixty-three (63) day intermittent sentence and a probation order (for a period of 2 years) that required him to report to a probation officer within seven (7) working days of his release from custody and after that, at all times and places as directed.

[30] Mr. Thomas was supposed to serve this sentence at the Toronto Intermittent Centre, a facility operated by the Ontario Ministry of Corrections located at 160 Horner Avenue in the City of Toronto. The terms of the intermittent sentence required him to surrender himself to the facility each Friday at 7:00 P.M. and remain in custody until the following Monday at 5:30 A.M.

[31] On January 4, 2019, Mr. Thomas failed to surrender himself and was declared unlawfully at large by the Officer in Charge. A warrant for his arrest was subsequently issued.

[32] The following timeline establishes the relevant dates for the purpose of this show cause hearing:

Date	Event
October 31, 2018	Mr. Thomas is sentenced to 63 days, to be served on an intermittent basis; 2 years' probation which included terms to report within 7 days and then as required; and a 2 year driving prohibition.
December 10, 2018	Mr. Thomas failed to report to probation.
January 4, 2019	Mr. Thomas failed to surrender himself to the Toronto Intermittent Centre.
February 7, 2019	Mr. Thomas is charged in relation to the Scarborough offences.
April 12, 2019	Mr. Thomas was granted bail, following a contested show cause hearing.
April 26, 2019	Having reported once, Mr. Thomas failed to report to probation and parole thereafter.
May 14, 2019	Mr. Thomas' sureties revoked.
June 5, 2019	Mr. Thomas is charged in relation to the Old City Hall offences.

Reverse Onus

[33] It was for Mr. Thomas to demonstrate that his detention was not necessary (a) to ensure his attendance in court in order to be dealt with according to law (the primary grounds), (b) to protect the public from a substantial likelihood that he will reoffend in such a manner as to endanger the protection or safety of the public or interfere with the administration of justice (the secondary grounds) and (c) to maintain confidence in the administration of justice (the tertiary grounds).

Mr. Thomas's Criminal Record

[34] Mr. Thomas has a significant record including crimes of dishonesty or fraud, possession of identity or banking instruments in another person's name, impaired driving type offences and breaches of court orders spanning the years 2003 to 2019. In 2018, he was found guilty of failing to comply with a recognizance, failing to attend court, possessing someone else's identity documents and driving dangerously while being pursued by police. His longest sentence was in 2018, when he served the equivalent of 240 days in jail. That said, there are significant gaps in his record between 2005 and 2009 and 2010 and 2018.

Mr. Thomas's Plan of Release and Potential Sureties

[35] Mr. Thomas proposed to be released to live with two sureties on a full house arrest bail with rigorous electronic monitoring under the aegis of Research Science Canada ("RSC"). The sureties are Ms. Alicia McDonald and her husband Mr. Asher Blackwood, who live together with their small children in a four-bedroom home they rent in Scarborough. For the first 14 days, they would enforce a quarantine in the basement. Thereafter, Mr. Thomas would be given his own bedroom upstairs, next to the couple's.

[36] The three are family friends. Mr. Blackwood and Mr. Thomas have known each other for more than 20 years. Ms. McDonald has known Mr. Thomas for five.

[37] Ms. McDonald works full-time for a residential cleaning business. She manages and supports a group of women who do the cleaning. She is on the road during the day and is always available by phone. Mr. Blackwood works full-time at a heavy vehicle mechanic shop. Their daughters are cared for during the workweek by their aunt, who is 61 years old.

[38] Their hope is that Mr. Thomas will be able to work with Mr. Blackwood. However, while there is a position available, there is no guarantee that Mr. Thomas will be hired. Ms. McDonald is willing to have Mr. Thomas accompany her on her rounds every day. However, while she has a great relationship with her boss and expects it to be possible, she had not yet discussed it with her. Because the cleaning business is bonded, there are legitimate questions surrounding whether Mr. Thomas would be welcome, even if only in Ms. McDonald's car. While both of them are willing to discuss the situation with their respective employers, they chose to wait for Mr. Thomas's release before doing so.

[39] If Mr. Thomas cannot accompany either proposed surety to work, he is to remain confined to their home during the day. Both are confident that the children's aunt will collaborate with them and advise them in the event of any problems. She was not presented to the court and Ms. McDonald candidly acknowledged that she had not told her about Mr. Thomas's criminal history.

[40] Ms. McDonald and Mr. Blackwood are motivated to help Mr. Thomas for a number of related reasons. First, he has been in custody for over a year and his case has not advanced. His preliminary inquiry dates were adjourned for reasons beyond his control just prior to the COVID19 pandemic and it is not clear when they will be held. Mr. Thomas has never asked them to act as his sureties before; as they understand it, his intention was to see these matters through on his own. However, owing to the delays and the pandemic, he reached out to them recently. While he is still relatively young at 31, he suffers from asthma and cellulitis. Like him, they are worried that he will contract COVID19 while in custody.

[41] They propose to supervise Mr. Thomas as a team and are confident that he will abide by conditions. They are both willing to pledge their entire savings of $24,000. They hope to become homeowners in the coming years and that sum is the beginning of their down payment; it is very important to them. Ms. McDonald has been saving since she was a teenager. They are also willing to pay the fees associated with electronic monitoring. Their preference, of course, is that Mr. Thomas will obtain employment and pay those fees himself.

[42] With that background, I will now discuss the relative strengths of Ms. McDonald and Mr. Blackwood as sureties.

Ms. McDonald

[43] Ms. McDonald is as strong a potential surety as I have seen. She is familiar with the outstanding charges and Mr. Thomas's criminal record. She knows they are serious and acknowledges that they are cause for concern. She has informed herself of resources that could assist Mr. Thomas in the future and has the number for the nearest police station on "speed-dial". She knows Mr. Thomas and is confident that she can properly supervise him.

[44] That said, Ms. McDonald is not naïve. She presented herself as an arm of the court who is willing to act as a community jailor for Mr. Thomas. She struck me as a sturdy combination of compassionate and no-nonsense. While she cares about Mr. Thomas, she is not beholden to him. She said she would not hesitate to turn him in if he were to disobey her rules or those of the court. She also has some enforcement ideas of her own, including searching Mr. Thomas if she feels the need to, imposing a 14-day quarantine and making sure he is unable to drive. She can be relied upon to take all of the responsibilities of a surety very seriously. I accept that she will not knowingly place her life's savings or public safety at risk.

Mr. Blackwood

[45] In contrast, Mr. Blackwood's presentation was surprising and underwhelming. Surprising because Mr. Thomas is, really, his friend. Underwhelming because he had made very little effort to become informed about Mr. Thomas's charges and criminal history. While nerves obviously had something to do with it, I was left with the strong impression that he had left the details to his wife, who happens to be at home during the pandemic. If he had been the only proposed surety, Mr. Thomas's application would not have passed muster.

[46] As the hearing evolved, I interjected to indicate that if the plan were to hold sufficient water, Ms. McDonald would have to be promoted to starting quarterback. Because she had testified before her husband, she was recalled at my suggestion so that her appetite for the lion's share of responsibility could be canvassed, out of fairness to her. She showed no hesitation.[1]

[47] Mr. Blackwood's role can only be as a supporting surety, albeit with a significant financial stake. That said, I trust that he is able to supervise Mr. Thomas at home or at work, in combination with his wife and electronic monitoring, and that he will not hesitate to turn Mr. Thomas in should that be required.

Stephen Tan and RSC

[48] The defence filed documents relating to RSC's services, and Mr. Tan testified concerning some additional details relating to zone enforcement and fees. Cross-examination was brief. As a result of the current crisis, the workings of electronic monitoring systems have become common knowledge in the courts. Suffice it to say that electronic monitoring is a risk-management tool that has its strengths and limitations. It cannot tell us what a person is doing or with whom. It can only provide information about that person's whereabouts. It cannot ensure immediate police involvement in a breach or crime in process. It is also subject to a margin of error. Nonetheless, for good reason, courts have accepted that it can provide a measure of deterrence owing to the evidence it gathers and provides to police in real-time and stores for later. It can bring home the importance of their role to sureties and others who are providing support. It can reinforce a plan of supervision and make the difference between detention and release in a marginal case. Of course, it cannot prevent a determined accused person from breaching and reoffending. The weight to be given to it depends on the circumstances of the given case: see R v Jesso, 2020 ONCA 280 at paras. 24-27; R. v. T.L. 2020 ONSC 1885, at para. 22; and R. v. Williams, 2020 ONSC 2237, at para. 119.

Analysis of the Three Grounds

Primary Grounds

[49] Mr. Thomas's record and current charges give rise to concerns on the primary grounds. Mr. Thomas's record demonstrates that he is willing to disobey court orders and evade police and justice in an effort to retain his freedom. The current allegations, while unproven, strongly suggest that he was in breach of a number of court orders. However, the plan substantially alleviates those concerns. It involves two sureties who will be vigilant. Based on my understanding, Mr. Thomas has never been subjected to electronic monitoring. The electronic monitoring girds the plan and adds a significant measure of confidence that he will abide by his conditions in the event that he is required to stay home while his sureties are at work. It is a "step up." I find on a balance of probabilities that the plan ensures that Mr. Thomas will attend court as required. He has met his onus in this respect.

Secondary Grounds

[50] On the secondary grounds, bail is to be denied only where detention is necessary for the protection of the public. Moreover, the risk of reoffending must be substantial and one that endangers the protection or safety of the public: see ss. 515(10) of the Criminal Code and R. v. Morales, 1992 3 S.C.R. 711, at paras. 37-39.

[51] Mr. Thomas's record and current charges raise concerns about the secondary grounds. His record is significant, and he has a history of committing offences while bound by recognizances and other court orders. He has endangered the community in the past by engaging in serious driving offences. While he is presumed innocent of the current charges, the conclusion that he was violating a number of court orders at the time is all but inescapable. The nature, quantity and similarity of the charges, accumulated in a relatively short time, is also cause for concern.

[52] On the other hand, Mr. Thomas does not have a record for firearms-related or violent offences. He has also demonstrated an ability to remain law-abiding for lengthy periods.

[53] The plan will ensure that Mr. Thomas is adequately supervised and monitored, and that he will not have ready access to alcohol or any motor vehicle. The plan, which includes two people whom Mr. Thomas respects, combined with electronic monitoring for the first time, will also have a deterrent effect. So, too, will the fears associated with COVID19 for Mr. Thomas, who suffers from asthma for which he requires a puffer.

[54] Mr. Thomas has demonstrated that he is not likely to reoffend in such a manner as to endanger the public. His detention is not necessary on the secondary grounds.

Tertiary Grounds

[55] The onus was also on Mr. Thomas to demonstrate that his detention is not necessary to "maintain confidence in the administration of justice." Four non-exhaustive factors must be considered: (i) the strength of the Crown's case; (ii) the gravity of the offence; (iii) the gravity of the circumstances of the offence, including whether a firearm was used; and (iv) whether the accused is facing a lengthy period of imprisonment if convicted. This analysis must be undertaken in the context of all the circumstances. Any issue that might cause a reasonable, informed member of the public to lose confidence in the administration of justice if Mr. Thomas were released must also be considered.

Strength of the Crown's case

[56] The Crown's case on the breaches and possession of identity documents is extremely strong. But that is not the main thrust of the Crown's position. The Crown argues that the fact that firearms and contraband were within Mr. Thomas's reach in the motor vehicles that he was occupying and driving makes for a strong case for joint possession. The fact that the handgun, ammunition and other contraband in the Old City Hall matters were in plain view or within reach makes that case even stronger.

[57] With respect to the Scarborough matters, Defence counsel points to the brevity of the police observations and to questions surrounding whether they were reliable given the time of night. With respect to the Old City Hall matters, Defence counsel points out that Mr. Letts was the target of the investigation and that the van was clearly associated to and used by him. She also points to the fact that possession cases require the Crown to prove knowledge and control beyond a reasonable doubt.

[58] I accept that the case against Mr. Thomas appears strong at this stage. However, I remind myself that cases like this often involve arguments based on the Charter. This is suggested most obviously in relation to the most serious matter involving Mr. Letts. Moreover, the Crown must prove knowledge, consent and some measure of control; passive acquiescence is not enough. The case is not overwhelming.

Gravity of the offence, its circumstances and whether a firearm was used

[59] The offences are very serious. They involve firearms, inherently dangerous items that criminals possess for the purpose of intimidating, harming or killing others. When combined with hard drugs and related paraphernalia in motor vehicles, they take on even greater significance. However, it must be noted that the allegations do not involve violence, relating to the firearms or otherwise. As the Crown concedes, firearms were not used in the relevant sense.

Whether Mr. Thomas faces a lengthy term of imprisonment if convicted

[60] The Crown submits that Mr. Thomas faces up to 10-12 years in prison if convicted of the most serious offences and breaches of weapons prohibition orders. Many of the sentences will be imposed consecutively as a function of the different offence dates, governing sentencing principles and statutes at play. While I believe that her position might pay insufficient tribute to the principles of parity and totality, I accept that Mr. Thomas is facing the prospect of a significant penitentiary sentence.

Delay to trial, COVID19 and Mr. Thomas's particular circumstances

[61] Mr. Thomas has been in custody since June 2019. His preliminary inquiries were adjourned just prior to the crisis. Our court is not currently holding preliminary inquiries or trials. Similarly, the Superior Court has yet to re-open for trials. Both courts will have to contend with significant backlogs when they do re-open. When that happens, it will not be "business as usual." It is impossible to know when Mr. Thomas will be able to answer to these charges. However, if I were to hazard an educated (albeit incompletely informed) guess Mr. Thomas might hope to be tried in mid-to-late 2021 if he remains in custody. That would mean at least two years in pre-trial custody. Aside from its obvious hardships, pre-trial detention makes it more difficult for accused persons to assist in their defence. The current crisis adds to those obstacles.

[62] In addition to the strength of the proposed plan of release, it is now beyond dispute that the COVID19 pandemic is among the factors that an informed member of the public must have in mind. As Madam Justice Molloy so eloquently put it in T.L., supra, at para. 36:

Detention prior to trial is difficult at the best of times, which is one of the reasons that, on sentencing, extra credit is provided for pre-trial custody. In the middle of a pandemic, serving that time in an institution is even more difficult. Transmission of the virus would be so much easier within an institution than in a private home. Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment. Not only that, the more people that are housed in the institutions, the harder it will become to achieve any distancing to prevent infection or to contain or treat any infections that do occur. It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).

[63] I accept that Mr. Thomas has not proved that his pre-existing condition places him at greater risk of significant illness or death should he contract COVID19. As I read the appellate authorities that touch upon the issue, the absence or existence of such a pre-existing condition is not dispositive: see R. v. Kazman, 2020 ONCA 251 at para. 17 and R. v. Stojanovski, 2020 ONCA 285 at para. 35.

[64] Concerning asthma in particular, the Crown relies on Justice Leibovitch's decision in R. v. Ali, 2020 ONSC 2472. At para. 38, His Honour cites a note from the American Academy of Allergy, Asthma and Immunology to the effect that there is no evidence of increased COVID19 infection rates in those with asthma. With respect, I am reluctant to place great weight on the quoted passage. The Ali matter was heard on April 17 and 20. While the note must have been recent, there is no mention of the date on which it was issued. Our understanding of COVID19, its effects and modes of transmission is fast-evolving. For instance, only recently has concern begun to emerge among the scientific community that it can transmitted in aerosol form. Likewise, not long ago, children were perceived to be spared its worst effects. We have also learned that it can kill in an indiscriminate and seemingly random fashion for reasons we do not yet understand. It appears that males succumb than females. Some are in excellent physical condition and in the prime of their lives. Importantly, the note provides its own caution:

However, it is important to remember we are dealing with an evolving pandemic and new information could change the situation in the future.

[65] I agree with Justice Stribopoulos's observation, at para. 124 of Williams, supra, that

in these extraordinary times, anyone who is a viable candidate for pre-trial release should be granted bail sooner rather than later. This is especially important for those accused who suffer from underlying health conditions that increase their risk of becoming severely ill or dying should they contract the virus. In close cases, this is not the time to err on the side of caution, given that bail decisions may now implicate more than an accused person's liberty. For some accused, bail decisions could now threaten their right to security in their person and their right to life. Further, given the broader public health implications, it is very much in the community's best interests to reduce the number of people held in custody as much as possible.

[66] We currently live in uncertain times. While the curve has begun to flatten, we do not know when stability will be attained in this community. It is feared that subsequent waves are on the horizon. Moreover, we do not know the number of inmates that would constitute an acceptably safe population in the correctional system going forward. It remains important to continue to reduce the jail population when that can be done responsibly.

[67] This is such a case. Mr. Thomas has demonstrated that an informed and reasonable member of the public would not lose confidence in the administration of justice upon learning that he had been released on the strict terms that I have ordered.

[68] I am indebted to both counsel for their hard work and professionalism.

Released: May 15, 2020

Justice Patrice F. Band

[1] Ms. McDonald has been a surety once in the past, in a domestic matter. The man in her charge was arrested for breaching a no-contact order behind her back, but estreatment proceedings were not undertaken against her.