Ontario Court of Justice

Date: January 18, 2021 Court File No.: Toronto

Between:

HER MAJESTY THE QUEEN

— AND —

FAHMI OSMAN

Before: Justice of the Peace K. Kellough

Heard on: December 9, 10, 21, 22, 2020 Reasons for Judgment released on: January 18, 2021

Counsel: K. Stratos, for the Crown L. Rose, for the accused Fahmi Osman

JUSTICE OF THE PEACE KELLOUGH:

[1] On December 22, 2020, following 3 days of evidence, I provided the parties with my oral decision and some brief reasons. I advised I would provide more fulsome reasons in writing to support the decision to deny Mr. Fahmi Osman’s (hereinafter referred to as the “accused”) application for Judicial Interim Release. These are my reasons.

[2] The accused and his brother Mr. Faruuq Osman, came before the Court for a special bail hearing, following a series of four robberies conducted in Toronto in late October 2020. The accused is charged with robbery, robbery with violence, robbery with firearm x2, disguise with intent x4, possession of a stolen vehicle, conspiracy to commit an indictable offence, possession of property obtained by crime under $5000 x3, dangerous driving causing bodily harm, fail to comply with release order, and threatening death. The accused also has two sets of outstanding charges, before the Courts in Windsor and Guelph.

[3] The matter was a reverse onus given the outstanding charges. Accordingly, it was up to Mr. Osman to show cause on a balance of probabilities why his continued detention was not justified. The Crown was opposed to Mr. Osman’s release on the primary, secondary and tertiary grounds.

[4] The Court heard from two sureties, Ms. Barbra Steele and Ms. Asha Ismail, the accused’s mother-in-law and cousin respectively. The sureties were prepared to supervise the accused with the assistance of an electronic monitoring device. The plan presented would have Ms. Ismail, reside with the accused at his home with his partner, Ms. Jaida Walters and their four, soon to be five, young children. Ms. Ismail testified that she had already intended to reside with the family for a few months to assist with the arrival of the new baby. Ms. Steele would provide a significant quantum and some support to Ms. Ismail. She would not be a residential surety, nor would she physically be present in the home on a regular basis. She intended to maintain telephone contact with Ms. Ismail, her daughter Ms. Walters, and the accused.

The Allegations:

[5] The allegations in this matter are extremely serious.

[6] The robberies occurred on October 19 and 24, 2020. The accused is co-accused with his brother Mr. Faruuq Osman. A third, unknown suspect is also alleged to be involved. The robberies all targeted drugstore pharmacies and were conducted mid afternoon.

[7] The first robbery took place during the afternoon of October 19, 2020. The accused and an unknown suspect, wearing masks, attended the St. Clair Midland Medical Clinic Pharmacy. The accused is alleged to have rushed behind the counter, pushed the victim to the ground, punched him in the face and then removed a large quantity of narcotics, Percocet, oxy, methadone, etc., from the safe. The drugs were placed in a black garbage bag, and $1000 cash was taken from the register. Mr. Faruuq Osman was not alleged to be involved in this robbery. They departed the scene in a stolen 2015 silver Nissan.

[8] The silver Nissan was reportedly used in a hit and run some time between October 19 and 24, 2020. The vehicle was then abandoned. Doorbell cameras viewed the accident, and the Court was advised that the video showed an unknown individual(s), taking a black bag from the trunk of the car and placing it into a white SUV which is said to resemble the vehicle used in the remaining robberies. Results of fingerprints and DNA taken from the Nissan were outstanding at the time of the hearing.

[9] The second of four robberies occurred on October 24, 2020 at approximately 2:10 pm when it is alleged that two individuals wearing masks entered the Eglinton Discount Pharmacy posing as customers. The accused is alleged to have rushed behind the counter and removed an unknown amount of prescription medication. A third individual, identified as Mr. Faruuq Osman, is alleged to have been outside the pharmacy standing watch or waiting for the other two in a white SUV.

[10] Approximately thirty minutes later, the three allegedly attended Cedarbrae Medical Pharma Choice in a white SUV, wearing masks. The accused is said to have gone behind the counter, grabbed an employee by the hair, dragged her toward the safe and said, “I’m going to shoot, don’t move, open the safe”. The unknown co-accused had his hand in his pocket in manner that suggested he had a firearm. Mr. Faruuq Osman allegedly entered the pharmacy very briefly at the end of the robbery, just as the other two individuals were leaving.

[11] Approximately thirty minutes later, the three accused allegedly attended A & W Pharmacy, in a white SUV, once again wearing masks. This time the vehicle was identified as a 2020 Honda Pilot, and the licence plate number was noted. Here the accused allegedly approached an employee and said, “I have a gun, you don’t want to get shot, give me all your drugs”. He then grabbed the individual by the shoulder and pushed him toward the safe. The victim placed drugs in a black garbage bag. While gesturing like he had a gun, Mr. Faruuq Osman allegedly said, “if you want to go home tonight, you don’t want to die”.

[12] With the vehicle description, police were able to effect GPS tracking of the white SUV. By 5:00 pm, the vehicle was located at Ninth Line and Highway 7, where it was being operated in an erratic manner, at high rates of speed, and failing to stop for stop lights. Eventually police were able to box the SUV in, using other police vehicles. The accused was driving the SUV. At this point he allegedly used the vehicle “as a weapon” and began ramming into several of the police vehicles, until a path was cleared.

[13] The SUV was then driven at extremely high speeds through a residential neighbourhood. The SUV may have collided with a pedestrian; it is not entirely clear. The pedestrian was found lying on the ground, saying that he was going to die. A witness described the man’s face as being purple. Nothing else is known about this possible collision at this point.

[14] At 5:06 pm the SUV collides with another vehicle. Both vehicles had substantial damage leaving them inoperable. The driver of the other vehicle had a cracked sternum. The passenger was originally thought to have broken ribs and a broken nose, but instead sustained damage to the cartilage in her nose. The accused was located in the driver’s seat. Mr. Faruuq Osman had been in front passenger seat, but following the collision he fled on foot, and was arrested after a short foot pursuit. The restraint control module was recovered from the SUV. Through this it was determined that the SUV was being driven at 113 km/hr, five seconds prior to impact. At two seconds prior to impact the accelerator is said to have been depressed at 100%.

[15] The Honda Pilot SUV was rented by the accused’s spouse, Ms. Walters on September 25, 2020. The Crown advised the Court that police have made efforts to speak with her about the rental car, but their calls have not been returned. It is also notable that at the time of these allegations, Ms. Walters was the surety for co-accused, Mr. Faruuq Osman’s outstanding charges.

[16] Police recovered a quantity of narcotics and prescription medication inside the SUV, as well as clothing and masks. DNA samples were taken from the clothing. Fingerprints were taken from the vehicle. Prints of a third unidentified male were found. The clothing matched that which was worn by some of the individuals involved in the robbery. Surveillance video shows the items of clothing worn by the suspects seemed to change somewhat from robbery to robbery. No firearm was ever recovered.

[17] Following the bail hearing, I released Mr. Faruuq Osman on a two-surety bail with conditions for electronic monitoring and house arrest. The Court views his alleged level of participation in the robberies, as markedly different from his brother, the accused, even in the face of likely arguments concerning his culpability as a party.

Outstanding Charges:

[18] The accused has two sets of outstanding charges. His Guelph charges date back to May 22, 2020. He and his common law spouse, Ms. Walters were charged with possession of cocaine, possession for the purpose of trafficking (cocaine) and possession of property obtained by crime. The accused was released on an undertaking with conditions in this matter. It is alleged the couple were in a rental car, heading east bound on highway 401 toward Toronto. Ms. Walters was driving. Police stopped the vehicle, ostensibly to see if the driver was licenced. After a search pursuant to the Cannabis Act police found one gram of cocaine, a total of $12,955 as well as multiple cell phones. The drug charges have been withdrawn in this matter. While Crown and Defence counsel disagree as to the likely outcome of Charter litigation in this matter, it does appear that the Defence will challenge the validity of the vehicle stop.

[19] A month later, on June 18, 2020, along with his sister Ms. Faryall Osman, the accused was charged with possession for the purpose of trafficking (cocaine), possession of oxy, and dangerous driving. The accused was placed on his own release order in the amount of $5000. One of the conditions of his release order was that he not operate a motor vehicle. The Crown sought an order pursuant to s. 524(4) of the Criminal Code vacating this release order. This was on the consent of Mr. Osman and was granted. Windsor police had been conducting surveillance at an Airbnb and the Court was told this was part of an ongoing drug investigation. The pair were seen leaving the Airbnb with the accused driving the car. A drug transaction was observed. Police followed the car to a plaza, surrounded the vehicle and announced, “you’re under arrest”. The accused then accelerated quickly through a busy parking lot and drove away speeding. Officers later arrested the pair at the Airbnb location. Following a search of the pair and the execution of a search warrant, a total of $17,185 was found as well as 16.8 grams of cocaine and 14.5 x 5mg tablets of oxy. The oxy and $1195 were found on the accused’s person. Defence counsel advises that upon a guilty plea, Mr. Osman has been offered a $2000 fine for the dangerous driving, and a 12-month custodial sentence for the drug related charges.

Background of the accused:

[20] The accused is 25 years of age and is in a common law relationship with Ms. Walters. The couple have been together for ten years. At the time of the bail hearing the couple had four children (aged 2, 3, 6, 8), and were awaiting the birth of their fifth child within a month. The family resides in Stouffville Ontario.

[21] From the sureties the Court learned that Mr. Osman has undiagnosed stomach issues, which Ms. Steele thought might be lupus or graves. They advised that Mr. Osman has sleep apnea and has had asthma since he was a child. Ms. Ismail advised that Mr. Osman takes his inhaler with him wherever he goes. No medical evidence was presented, but the Court accepts what the sureties have said in this regard, particularly in relation to the asthma.

[22] Ms. Ismail told the Court that Mr. Osman works at a company that does painting and decorating in Windsor, Ontario. She thought he lived there and traveled back and forth. Ms. Steele told the Court the Mr. Osman does some painting, decoration and small renos, and that he had been to Windsor in that capacity, not too long ago. The Court received no other information relating to Mr. Osman’s employment or employment history.

[23] The accused has two convictions from 2014. These were for failing to comply with his recognizance and for failing to attend Court. The sentence was 38 days custody (30 days on the breach, and 8 on failing to attend Court).

[24] The accused has one conviction from 2017 for transportation fraud. He was co-accused with his brother Mr. Faruuq Osman. His sentence was a 45-day intermittent sentence with 12 months of probation.

Plan of Release:

[25] The plan proposed consisted of two sureties Ms. Barbra Steele and Ms. Asha Ismail. Neither proposed surety has a criminal record or outstanding charges, and both are Canadian citizens. Ms. Ismail intended to leave her own residence in Toronto and reside in the family home with the accused, his spouse and their children in Stouffville. Mr. Osman would be subject to house arrest, and electronic monitoring. He would only be permitted to leave the home in the direct and continuous presence of Ms. Ismail.

[26] Ms. Steele, aged 47, resides with her husband and young son in Toronto. She had been working 30-40 hrs/week as a postal clerk with Canada Post since August 2020. Prior to that she worked in a medical office for 15 years. While she doesn’t own her own home or have RRSPs, she does have $45,000 saved for retirement, of which she was willing to pledge $30,000. She has known Fahmi Osman for 11 years. She is close with her daughter, and very involved in the lives of her grandchildren and as such sees Mr. Osman on a regular basis. She did not intend to supervise frequently in person, but would attend the home in Stouffville occasionally.

[27] Ms. Ismail, aged 66, receives a pension and is of limited means. Now retired, Ms. Ismail previously ran a home daycare. She resides in Toronto with her adult son. She advised she has a close relationship with her cousin and sees him regularly. She was a surety for him approximately 6 years ago and there were no issues at that time. She was prepared to sign bail for up to $10,000. The only asset the Court was advised of was her 2018 Hyundai Tucson worth $20,000. It seems that Ms. Ismail had always intended to move into the family home for a period to assist the couple with childcare shortly before and after the birth of their 5th child. She advised the Court that she would only be willing to reside with the accused as a surety for 8 months to 1 year maximum.

Positions of the Parties:

[28] The Defence urges release as the plan proposes an appropriate step up the release ladder principle. Mr. Osman was released on an undertaking and then his own release order in the amount of $5000, in the outstanding charges in Guelph and Windsor respectively.

[29] The pre-existing health conditions of the accused impact his vulnerability to COVID-19, particularly within the prison population, which is generally considered to be more at risk of contracting the virus. The Defence references the case of R. v. Wisdom, CR-20-00000218-00BR (unreported), citing paragraph 18 of R. v. J.S., 2020 ONSC 1710 which holds that “the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest, is a factor that must be considered in assessing the tertiary ground.”. Counsel submits that given the pandemic, the public’s confidence in the administration of justice would not be affected by releasing Mr. Osman on the plan suggested.

[30] The Defence concedes that the Crown’s case relating to Mr. Osman’s involvement in the spree of allegations is “fairly strong”. However, the Defence argued that the most serious charges faced by Mr. Osman (i.e. the use of firearm, robbery with a firearm and the conspiracy charge), were “not going to go anywhere”. The Defence contends that there is no evidence to support these charges. No firearm was recovered, and no evidence of an agreement between the parties has been produced. According to the Defence, these triable issues would almost certainly be resolved in favor of Mr. Osman. The Defence also conceded that his client was in “different situation vis-à-vis some of the evidence” than the co-accused, Mr. Faruuq Osman.

[31] The Defence also pointed to COVID-19’s impact on an accused person’s ability to defend themselves. Access to the telephone is unpredictable at best, thus posing significant challenges for an accused trying to communicate with counsel. Additional procedural steps are involved to set preliminary hearing and trial dates, thereby creating additional delays. The criminal justice system and process as a whole have been severely impacted by the virus to create a degree of instability which is translating into “jury trials […] getting adjourned into oblivion”, and longer delays in getting to trial due to the backlog created by the pandemic.

[32] Turning to the Crown’s submissions, in relation to the primary ground it is conceded that Mr. Osman has significant ties to the community. The Crown suggests that some concern arises from the two occasions Mr. Osman is alleged to have fled police in a vehicle to avoid arrest, as well as his convictions for failing to appear and failing to comply with recognizance.

[33] In terms of the secondary ground, the Crown points to the fact that the accused was on two releases and conditions not to drive at the time of the offences. The Crown suggests the blatant nature of these breaches, where he drove into innocent people after committing a series of violent robberies, is highly concerning and demonstrates his significant risk to public safety. It was suggested that the likelihood of reoffence in a manner that would risk public safety is at “one hundred percent”, or “well beyond the substantial likelihood”. The Crown had real concerns about the supervision which would be provided by the sureties, and that even electronic monitoring would not control the accused, as it can only work for accused persons who are willing to be controlled.

[34] Turning to the tertiary ground, the Crown argues their case is strong. Even on the charges were there are triable issues, there is still the potential for conviction. The post offence conduct of fleeing after the police boxed in the accused’s vehicle, strengthens the Crown’s case. The Crown further submits that the gravity of the offence is high, and the circumstances are extremely concerning as there is the suggestion of a firearm on two occasions. A very significant penitentiary term would be likely on conviction. Accordingly, even with two sureties and electronic monitoring, the public’s confidence in the administration of justice would be undermined with the accused’s release.

Analysis:

[35] The right to a reasonable bail, along with the presumption of innocence are not simply vague notions we need to be aware of in bail courts. Rather, these are two of the fundamental principles of our bail system, which are guaranteed in the Canadian Charter of Rights and Freedoms. As stated in R. v. Antic,

The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons. [1]

[36] These two considerations are of utmost concern in examining whether Mr. Osman has shown, on a balance of probabilities that his continued detention is not justified. Turning first to the primary ground, the Crown’s main argument here was that Mr. Osman’s post offence driving behaviour following the robberies suggests that he will stop at nothing to flee from police should the opportunity arise. The context and nature of the driving behaviour does rise to the level of being a bonafide primary ground concern. However, the Court would not be overly concerned with the primary ground in this situation. Mr. Osman has a stable relationship, a growing family, and a large extended family all within the GTA. While he has one fail to appear conviction on his record, it is over 6 years old.

[37] Before examining the secondary and tertiary grounds, it is appropriate to comment on the strength of the Crown’s case, as this is a consideration when addressing both grounds. As noted, even the Defence concedes that this is a strong Crown case, even though triable issues will most certainly be explored by the Defence. The Crown suggests that their case against Mr. Osman is strong and will only get stronger as further DNA and fingerprint evidence become available. The Crown also contends that the charges relating to firearms are far from impossible to prove; while this may be more challenging, it is not impossible to obtain a conviction when firearms are not seen or recovered. While some aspects of the Crown’s case rely on circumstantial evidence, it appears that there is an abundance of direct evidence that satisfies this Court that the case against Mr. Osman is quite strong.

[38] Looking at the secondary ground, the Court is guided by s. 515(10)(b) of the Code and must consider if detention is necessary for the protection and safety of the public, including any victims or witnesses. Consideration must also be given to whether there is a substantial likelihood of reoffence, if released. As noted in R v. Morales,

[T]he bail system does not function properly if individuals commit crimes while on bail. One objective of the entire system of criminal justice is to stop criminal behaviour. The bail system releases individuals who have been accused but not convicted of criminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on conditions that that the accused will not engage in criminal activity pending trial. [2]

An examination of the allegations, the background of the accused including the criminal record and the plan are critical factors here.

[39] As noted, the allegations in this matter are extremely serious. The four robberies include a degree of violence that is troubling. Punches to the face, hair pulling, pushing, threatening with a weapon (although unseen), along with various threats suggest that these robberies would have been very unsettling for the victims and witnesses at the pharmacies. That this behaviour was repeated four separate times is highly concerning. There appears to have been a degree of planning involved given the execution of the robberies.

[40] The driving charge from October 24, 2020 is extremely disturbing. Driving at such high rates of speed, repeatedly driving though stop lights, using his own vehicle as a weapon to move police vehicles out of the way, with much of this taking place in a residential neighbourhood, it is a wonder that only one other vehicle was struck. The injuries of the driver and passenger in the vehicle that was struck are significant. That no pedestrians or other motorists were killed during this escape attempt is quite simply a stroke of luck. This behaviour is as troubling, if not more than the robberies themselves. The threat to public safety from the alleged actions of the accused was extremely high. The Court notes Mr. Osman was subject to a release condition that he not drive at the time of this allegation.

[41] The outstanding offences from Guelph and Windsor in May and June of 2020 tend to suggest that the accused is involved in drug trafficking, to at least some degree. The amounts of money recovered in those matters are suggestive of something more than street-level trafficking. Given that his co-accused is his common law spouse, later his sister, and in the present case his brother is troubling to the Court. At the center of each incident is the accused. It appears that those closest to him are drawn into his alleged criminal conduct. The driving charges in Windsor, combined with the current charges are indicative of a pattern of dangerous driving which is of grave concern to the Court.

[42] The accused’s criminal record is minimal and getting dated. However, his actions within six short months in 2020 tend to suggest that his criminal behaviour is escalating sharply, both in gravity and frequency.

[43] While the Court appreciated hearing from both sureties, genuine concern relating to the release plan arises concerning supervision. The sureties are good people, who appear to want the best for their son-in-law/cousin. Ms. Ismail would in effect be the sole supervisor of Mr. Osman. Accordingly, Ms. Steele’s proposed contribution mainly amounted to assisting with the quantum of bail. Ms. Steele advised she would attend occasionally to assist with supervision. As she resides some 40 minutes away with her husband and young son, and has a full-time job with split shifts, practically speaking the Court was unable to view her as offering anything of substance to the supervision of Mr. Osman. Ms. Steele advised that she trusts her daughter Ms. Walters and Ms. Ismail. She would rely upon them to notify her of any issues with the accused. Supervision by proxy, in this matter is insufficient to address the Courts concerns relating to the secondary grounds outlined below.

[44] Although Ms. Ismail’s intention was to reside in the family home to supervise Mr. Osman, her original or primary reason for relocating to Stouffville was to assist with the 4, soon to be 5 young children. This divided level of attention is also concerning.

[45] After extensive cross examination on the matter, it seems that neither of the sureties have had conversations with the accused or Ms. Walters about any of the outstanding offences, or the current charges. This is by no means a requirement, however, the tone of answers from both sureties left the Court with the impression that they have thus far turned a blind eye to his alleged behaviour. As the Crown points out, neither of the sureties seem to question the amounts of money found in the vehicle operated by Ms. Walters or the Airbnb in Windsor.

[46] The Court does not have any faith in the accused’s ability to obey release conditions. That he has three times involved family members in his alleged criminal enterprises within 6 months gives the Court real concern. With one surety 40 minutes away, and the other at least partially occupied assisting with childcare responsibilities, it appears that there are gaps in the plan of supervision which cannot be rectified by the suggestion or use of electronic monitoring.

[47] The Defence suggests electronic monitoring will provide the Court with reassurance and an extra level of protection to ensure the accused will not violate his release. Following the line of cases: R. v. D.P., 2020 ONSC 3133; R. v. Jesso, 2020 ONCA 280; R. v. Stojanovski, 2020 ONCA 285 and R. v. Fleming, 2015 ONSC 4380, this Court finds that electronic monitoring is insufficient to address the secondary ground concerns relating to public safety and reoffence. Electronic monitoring can be an effective tool of supervision, but it is not without limitations. Should the need arise where Mr. Osman decides to flee police in a motor vehicle, as he is alleged to have twice done, electronic monitoring would be of little assistance in terms of protecting pedestrians and other motorists. As the Crown said “he doesn’t want to go to jail. He doesn’t want to get arrested and he’s going to put people at risk”. I am inclined to agree. Moreover, as noted in Fleming, such monitoring fails to alert authorities as to what an accused is doing at any given time. While monitoring might make it easier to find Mr. Osman, the risk to public safety prior to him being located is high. I accept the Crown’s position that electronic monitoring works for someone who is willing to abide by conditions. This Court has serious concerns as to Mr. Osman’s willingness to do so.

[48] Turning to the tertiary ground, even if the plan could somehow be seen to address public safety concerns, this Court is of the view that Mr. Osman’s release would erode the public’s confidence in the administration of justice. Accordingly, I would detain, him on both the secondary and tertiary grounds. Section 515(10)(c) of the Code indicates detention is justified if its is necessary to “maintain confidence in the administration of justice, having regard to all the circumstances”. In assessing the public’s confidence in the administration of justice we must consider the four enumerated factors set out in s. 515(10)(c)(i)-(iv) of the Code: the strength of the Crown’s case, gravity of the offence, circumstances surrounding the commission of the offence, including whether a firearm was used, and finally if the accused is liable, on conviction to lengthy period of imprisonment.

[49] As noted above, this can only be regarded as a strong Crown case, despite the presence of some triable issues. The sheer number of robberies; degree of violence therein; threats to shoot employees; threats/gestures suggestive of the possession of a firearm; injuries to one, if not two drug store employees; reckless driving at high speeds, through red lights; fleeing from police at high speeds in a residential neighbourhood; ultimately causing a serious collision with another vehicle, injuring its passengers are all indicative of a grave offence. It is difficult to envision an outcome that doesn’t involve a potentially lengthy term of imprisonment for Mr. Osman, should he be convicted.

[50] One further factor requires consideration: would the public’s confidence in the administration of justice be eroded if the accused were detained, taking into consideration the pandemic and the increased risk of transmission of COVID-19 to individuals inside detention centres?

[51] The Court accepts that the accused has asthma, and that this makes him more vulnerable to the ravages of the coronavirus, should he contract it. It is also accepted that there is an increased risk of exposure to the virus for individuals who are incarcerated. The “Response to COVID-19 Information Note” provided by the Crown, outlines the measures taken to reduce the risk of infection inside correctional intuitions in the province. The Crown points out that the detention centre where Mr. Osman is housed is “has been the best” in terms of the presence of the virus therein. No doubt this provides little comfort to the accused and his family.

[52] Despite the challenges with social distances, self isolation and other prevention techniques, Ontario Courts have been somewhat divided on the issue of what, if any evidence is required regarding an accused’s pre-existing condition, and how determinations concerning the susceptibility of an accused in custody should be made. [3] A more unified approach has developed by our Courts to suggest that current health risks to accused persons, must not overcome issues of public safety and traditional bail considerations. These considerations will remain paramount. As stated in R. v. Frantzy, 2020 ONSC 1549, the,

existence of the COVID-19 pandemic cannot be a trump-card argument against the notion of custody itself … The public still has an important interest in the appropriate application of s. 515 of the Code … any accused person’s individual interest must be weighed against the equally legitimate public interest in having a justice system that seeks to protect the community from the harms brought about by serious crime. [4]

[53] Similarly, in R. v. Cain;

…the existence of the Covid 19 virus is relevant, but not determinative as to whether an individual plan of bail meets the primary, secondary and tertiary criteria governing release. This particular plan of release must be assessed to determine whether the secondary and tertiary ground concerns can be met. The threat the virus poses to those housed in the detention center is one factor in the balancing which is required. [5]

[54] Given the seriousness of these charges, combined with the outstanding charges and the perceived frailties of the release plan, the possible threat to public safety is simply too great to release Mr. Osman due to concerns relating to COVID-19. Moreover, it is likely that a member of the public, versed in the constitutional principles underlying our bail system [6], would see Mr. Osman’s detention as necessary to maintain confidence in the administration of justice, even in the face of this deadly pandemic. His release would almost certainly erode that confidence. The series of violent robberies combined with the pattern of dangerous driving, all while on a release order with conditions, is simply more than the public confidence can bear, even in these times which have been challenged by the coronavirus.

[55] I find that Mr. Osman has failed to show cause, on a balance of probabilities, that his release is justified. Accordingly, he is detained on the secondary and tertiary grounds.

Released: January 18, 2021 Signed: Justice of the Peace Kellough

Footnotes

[1] R. v. Antic, 2017 SCC 27 at para. 1.

[2] R. v. Morales, [1992] 3 S.C.R. 711 at p. 738.

[3] See for example R. v. Nelson, 2020 ONSC 1728, at para 35 which suggests some rudimentary evidence is required to satisfy the court concerning health issues and susceptibility of the accused; as well as R. v. Jeyakanthan, 2020 ONSC 1984 and R. v. Budlakoti, [2020] O.J. No 1352 (ONSC). Cases such as R. v. C.J., 2020 ONSC 1933, at para 9 and R. v. Cain, 2020 ONSC 2018, at para 11 hold that such evidence is unnecessary to find that an accused in custody is at an increased risk of contracting COVID-19.

[4] R. v. Frantzy, [2020] O.J. No. 1549 at para. 9.

[5] R. v. Cain, 2020 ONSC 2018, [2020] O.J. No. 1389 at para 8.

[6] See R. v. Hall, 2002 SCC 64 para. 41.