ONTARIO COURT OF JUSTICE

CITATION: R. v. Bains, 2022 ONCJ 16

DATE: January 17, 2022

COURT FILE No.: 2811-998-20-21409-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BALJEET BAINS

Before Justice P.K. Burstein

Heard on October 18, 2021

Reasons for Judgment released on January 17, 2022

M. Fabre................................................................................................ counsel for the Crown

B. Hundal....................................................................................... counsel for the Defendant

BURSTEIN J.:

[1] Mr. Bains has chosen to not get a government-approved COVID-19 vaccine. On October 18, 2021, as a condition of releasing Mr. Bains on bail following a verdict of guilty to assault bodily harm, I ordered that he must quarantine (and test) for the 14-day period leading up to his sentencing hearing on February 9, 2022, unless he had instead chosen to get the required doses of a COVID-19 vaccine in advance of the quarantine period. These are my reasons for having decided that the three bail concerns, as set out in s. 515(10) of the Criminal Code, necessitated me imposing that condition of bail pending sentence.

[2] In deciding that it was necessary to make a judicial interim release order requiring Mr. Bains to quarantine (if he chose to remain unvaccinated), I was not purporting to decide that a court can or should exercise some general power to order all unvaccinated persons, or even all unvaccinated accused persons, to submit to a government-approved COVID-19 vaccine. Rather, I have determined that in the circumstances of this particular case, the imposition of that term was both necessary and appropriate.

[3] In criminal cases, judges have authority to restrict the liberty interests of accused persons when it is necessary to protect the public or to safeguard the administration of justice. Judges also have both the jurisdiction and the duty to maintain a safe and secure courtroom: see R. v. F.D.J.F., 2005 18707 (ON CA), [2005] O.J. No. 2148 at para. 32 (C.A.). It is in the context of presiding over a criminal case where the accused has already been found guilty and will eventually have to reappear in court to determine his sentence, that I have decided to restrict Mr. Bains’ release pending sentence with the quarantine condition. I determined that it was “reasonable” and necessary to impose that condition pursuant to s. 515(4)(h) of the Criminal Code and that the imposition of the condition, in the circumstances of this case, was constitutionally justifiable. As I made clear to Mr. Bains and his counsel, were Mr. Bains to change his mind and choose to get the requisite doses of a government-approved COVID-19 vaccine in advance of that quarantine period, I would rescind the bail condition before it takes effect.

Procedural history of this case

[4] On September 22, 2021, Mr. Bains pleaded guilty before me to a charge of assault bodily harm. The Crown and defence had already agreed that it would be in the interests of justice to allow Mr. Bains to appear remotely (by video conferencing) for that hearing and so I acceded to their request.

[5] After I had formally found Mr. Bains guilty of assaulting his wife and causing her bodily harm, the parties told me that they would be jointly requesting an adjournment of the sentencing hearing for a few months. I was also informed that the Crown would be submitting that the appropriate sentence in this case required a term of imprisonment. Consequently, Mr. Bains was going to have to appear in person at the future sentencing hearing.

[6] In the spirit of recent changes to provincial legislation governing mandatory disclosure of COVID-19 vaccine status as a condition of entry to publicly available spaces, I exercised my authority for maintaining a safe and secure courtroom by inquiring into the vaccine status of Mr. Bains and his lawyer. Counsel for Mr. Bains disclosed that he had been fully vaccinated. After some initial resistance to an inquiry from his lawyer, Mr. Bains said that he had chosen to not get the COVID-19 vaccine.

[7] Mr. Bains’ case was then adjourned to return before me on October 18, 2021 for the purpose of confirming the future date for the sentencing hearing (which counsel was to arrange administratively with the trial coordinator in the interim). Before adjourning on September 22, 2021, I alerted defence counsel that on October 18, 2021 I would consider whether or not it would be necessary and appropriate to exercise the authority provided by ss. 515 and 523 of the Code to impose a condition on Mr. Bains’ judicial interim release that would require him to complete the government-approved COVID-19 vaccination process before he returned later to court in person for his sentencing hearing.

[8] When Mr. Bains and his lawyer appeared (remotely) before me on October 18, 2021, I again raised my concerns about Mr. Bains’ unvaccinated status and the implications that had in terms of the three statutory concerns related to judicial interim release, pursuant to s. 515(10) of the Code. After hearing submissions from both the Crown and the defence, I determined that it was appropriate to vacate Mr. Bains’ existing release order and make an order releasing him on a condition that he quarantine and be regularly tested for COVID-19 prior to the future date for his sentencing hearing.

[9] The sentencing hearing in this case has been scheduled to take place on February 9, 2022. As the Crown will be advocating for a sentence involving Mr. Bains spending time in jail, Mr. Bains will need to attend the courtroom in person that day in case I accept the Crown’s submission. Should I determine that the appropriate sentence in Mr. Bains’ case involves a period of imprisonment, his unvaccinated status in the jail to which he is sent will also create an undue risk of infection for the many persons with whom he will come in contact there. In addition to the obvious risk to the health and safety of those other persons at the jail, Mr. Bains’ unvaccinated status would create an undue risk of interfering with the administration of justice in so far as outbreaks of COVID-19 at Ontario jails have led to court appearances being cancelled and cases having to be adjourned. Regardless of whether I accede to the Crown’s position that Mr. Bains should be sent to jail, his presence in the courtroom as an unvaccinated person will create an undue risk to all of the other justice system participants who must also be present in the courtroom at the same time.

The exceptional circumstances created by the COVID-19 pandemic

[10] We are in the midst of a worldwide calamity. In the almost two years since it started, the COVID-19 pandemic has killed millions of people across the globe, thousands in Canada alone. It has resulted in Canada having to close its borders and in Ontario having to shut down local economies for months at a time. Children have been forced to stay home from school. Millions of people have suffered financially.

[11] Two years into the COVID-19 pandemic, there remains no known “cure” for the illness. For the first year of the pandemic, there was also no vaccine available to help protect people from becoming infected with the potentially fatal virus. During that first year, the only means available to help limit the risk of spreading the virus revolved around the creation of space and barriers between people, such as masks and plexiglass shields. These measures were hardly foolproof. The COVID-19 pandemic continued to rage across Canada and around the world.

[12] Before the pandemic, the criminal justice system had historically functioned on the presumption that participants would attend court in person. While courts had occasionally allowed for the remote appearance of a defendant or witness in some cases, criminal cases had almost always been conducted with the judge, the lawyers, the staff, the witnesses, the defendant and any interested member of the public, all attending inside the courtroom together. Faced with the COVID-19 pandemic, the court system has had to quickly pivot and allow for remote appearances by participants in criminal cases. By allowing justice system participants to appear remotely from their own isolated settings, courts were able to help minimize the risk of the virus spreading through close contact of persons in the courtroom.

[13] The shift to remote court appearances has had its limits though. For some criminal cases, it was considered inappropriate for participants to appear by video link. Cases involving very serious criminal charges, or cases where imprisonment was a live issue, seemed ill-suited to video appearances. Many of those cases still required the personal attendance of some, or all, participants inside the courtroom. Initially, most of those cases were simply postponed pending positive shifts in the course of the COVID-19 pandemic. Eventually, once the spread of the virus seemed to have leveled off and more had become known about the efficacy of measures designed to prevent its spread, courts began re-opening for more in-person proceedings. To help reduce the health risks created by those in-person proceedings, courtrooms in Ontario were equipped with plexiglass barriers and attendees were required to wear masks at all times.

[14] By September of 2020, most Ontario Court of Justice courthouses were operating with at least some courtrooms entertaining in-person criminal cases. The preventative measures that had been put in place at Ontario courthouses by the Ministry of the Attorney General (including improvements to HVAC systems and mandatory self-screening at entry), were very helpful in promoting the health and safety of all who attended at Ontario courthouses. Nevertheless, the Ministry continued to report instances where courthouse attendees had tested positive for COVID-19. While there have been no reported “outbreaks” of COVID-19 at any Ontario courthouse since the re-emergence of in-person appearances in criminal cases, there have been a number of reported COVID-19 outbreaks at the various Ontario jails which house prisoners who are brought to court for their criminal cases.

[15] In the past year, there have been two significant developments concerning the COVID-19 pandemic. First, scientists discovered that the virus has been mutating as it has continued to spread through the world’s population. Referred to publicly by health officials as “variants of concern”, these new variations of COVID-19 have given rise to new concerns about higher levels of transmissibility and more serious symptomology. On November 26, 2021, the World Health Organization formally recognized the “omicron” variant as being a highly contagious version of COVID-19. The omicron variant is believed to be responsible for the recent increase in daily COVID-19 infections in Ontario and elsewhere. This sudden rapid increase in the spread of COVID-19 due to the omicron variant has resulted in a dramatic rise in the number of persons seeking hospital admission and has led the Ontario Government to again close schools and businesses to in-person attendance.[^1] Public health officials have also cautioned that masks worn previously to help guard against transmission of COVID-19, may no longer be effective against the omicron variant.

[16] The second significant development in the course of the pandemic has been the development of vaccines which have proven to be both safe and effective in preventing the spread and harmful health consequences of COVID-19. In December of 2020, Health Canada authorized the use of those COVID-19 vaccines, having determined them to be safe and effective[^2] based on the scientific studies which had been filed in support of their approval. Regrettably, due to an apparent initial shortage in the world’s supply of those vaccines, it took several months before they became widely available in Canada. By July of 2021, however, there were many authorized dispensaries of the government-approved COVID-19 vaccines all across Ontario. People were able to obtain doses of the vaccine upon request. Sources estimate that billions of doses of the COVID-19 vaccines have been administered to people around the world. Health Canada reported that, as of January 3, 2022, 64,197,951 doses of government-approved vaccines had been administered in our country alone. Of the Canadians who received those vaccinations, only one one-hundredth of one percent have reported[^3] experiencing “serious” side effects, such as nausea, headaches, pain, or myocarditis. According to Health Canada, “[t]he benefits of vaccines authorized in Canada continue to outweigh the risks”.

[17] Following Health Canada’s approval of the COVID-19 vaccines in December of 2020, people across the country began voluntarily attending at designated sites to receive the requisite doses of an approved vaccine. When the rate of voluntary attendance for the vaccines began to taper off in mid-2021, governments in Canada began mandating people employed in certain sectors to either get vaccinated or stop working. For example, by the Fall of 2021, health care workers, police officers, and court staff (including judges) were all required to disclose whether they had been vaccinated in order to continue working. Many private employers have followed suit. Some governments have allowed public servants to remain unvaccinated, but only on condition that their employment is not in a high risk setting (such as long-term care for the elderly) and they agree to subject themselves to frequent and regular COVID-19 testing.

[18] No government in Canada has yet to make it mandatory for all of its citizens to receive the requisite doses of an approved COVID-19 vaccine. The Government of Quebec has recently announced it may impose a special tax upon those who choose to remain unvaccinated. No other government in Canada has signaled an intention to do likewise. Although the Government of Ontario has legislated a vaccination requirement for persons entering restaurants and other public spaces (see s. 2.1, of Schedule 1 of O. Reg. 364/20: Rules for Areas at Step 3 and at the Roadmap Exit Step (O. Reg. 364/20) pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020 c. 17), it has not yet imposed a requirement for people entering courthouses to disclose whether they have received a COVID-19 vaccine. The Ontario Government has, however, issued a directive that suppliers and contractors who need to enter courthouses (or any other government facility) in Ontario must either be fully vaccinated or else provide a negative result from a government-approved antigen test taken no more than 48 hours prior to entry. In addition, on August 31, 2021, the Chief Justice of the Superior Court of Ontario ordered that no citizen will be allowed to serve as a juror in Ontario unless and until they confirm that they have been vaccinated.

[19] As of January 3, 2022, Ontario’s Ministry of Health reported that more than 88 percent of Ontarians aged 12 or older have received at least two doses of a government-approved COVID-19 vaccine. Mr. Bains is in the minority of people in Ontario who have chosen to avoid getting a COVID-19 vaccine. Mr. Bains did not claim that he suffers from any of the narrow set of health concerns which, based on advice from medical professionals, governments have recognized as legitimate reasons for refusing a COVID-19 vaccine. He told me that he has refused to get the vaccine because it was his choice.

Judicial notice of government responses to the public health crisis created by the COVID-19 pandemic

[20] As is evident from the section above, in arriving at my decision, I have relied upon information that is widely available concerning how and why governments in Canada, as well as the courts, have responded to COVID-19. While my consideration of this information may be characterized as a form of “judicial notice”, I was comfortable doing so in this case for the following reasons.

[21] First, the Ontario Court of Appeal has said that it will not be inappropriate for judges to take judicial notice of “the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission": R. v. Morgan, 2020 ONCA 279 at para 8.

[22] Second, the information about the responses of governments and courts to COVID-19 was not considered by me in relation to any “adjudicative” fact relevant to the criminal charge Mr. Bains is facing, such as whether Mr. Bains committed the assault of which he had been accused. The information I considered in arriving at my decision concerning Mr. Bains’ bail condition was more akin to the kind of evidence that has regularly been considered by Canadian courts in relation to “legislative” facts or to “social framework” facts. In respect of the latter, the Ontario Court of Appeal recently observed in R. v. C.K., 2021 ONCA 826 (at para. 56):

Importantly, this is a social framework fact about the social context in which this litigation is occurring. In R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, Binnie J. affirmed that judicial notice should not be taken of any facts, including social framework facts, unless the test of “notoriety” and “indisputability” has been met. He recognized, however, that a more flexible approach applies when taking judicial notice of social framework facts, rather than adjudicative facts that relate directly to the incident or event being litigated. He explained, at para. 65, that when considering whether to take judicial notice of a social framework fact:

[A] court ought to ask itself whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition in controversy.

To be clear, the “facts” I have outlined in the section of my Ruling above are in relation to how courts in Ontario and governments in Canada have responded to a global public health crisis never before seen in our collective lifetime. I do not purport to find that the science concerning COVID-19 and the approved vaccines is indisputable, but simply that it is beyond credible debate that the governments of Canada and Ontario have responded to this exceptional public health crisis by approving certain vaccines as safe and effective and by encouraging or mandating people to receive those vaccines.

[23] Third, I was willing to take notice of the institutional responses to the COVID-19 pandemic because the issue in this case arose in the context of a bail hearing and not a trial. Indeed, by pleading guilty, Mr. Bains waived his right to have a trial and to thereby compel the Crown to prove the facts material to that determination. The only issue which remains to be decided by me in this case is what punishment should be imposed for the assault Mr. Bains committed on his wife. It was only as part of the hearing concerning whether Mr. Bains should be released on bail pending a determination of sentence that I have considered information which, by this point in the pandemic, has been repeatedly reported and is readily available to the public on an array of government websites. As the Supreme Court of Canada has observed, “[t]here are practically no prohibitions as regards the evidence” which may be led at a bail hearing in support of restricting the liberty interests of an accused: see Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] S.C.J. No. 21 at para. 28. Indeed, a judge at a bail hearing has a broad discretion to "make such inquiries, on oath or otherwise” as they deem appropriate: s. 518(1)(a) of the Code.

[24] Lastly, over the past 18 months, many courts across Canada have already taken notice of notorious facts relating to the COVID-19 pandemic. In both criminal and civil matters, courts have readily accepted that the pandemic has materially impacted the administration of justice.[^4] For example, in recently deciding to question all potential jurors about their vaccination status and to exclude unvaccinated persons from the jury, Devlin J. took notice of the fact that vaccination was essential to the safety and security of others in the courtroom:

Factually, I am satisfied that vaccination is a safe and highly effective means of preventing the spread of the coronavirus, the development of COVID 19 infections, and severe illness in those who do become infected. The scientific consensus on this fact is notorious and beyond reasonable dispute. I take judicial notice of it: R v Find, 2001 SCC 32 at para 48.

Short of ceasing all contact with other humans, vaccination is now proven to be the single most effective method of reducing the risk and prevalence of COVID 19, a disease which has ravaged our society, its institutions, and the physical and mental well-being of all Canadians.

[25] Regardless of whether I too would be prepared to find that the scientific consensus on the safety and efficacy of COVID-19 vaccines is beyond dispute, it is unquestionably beyond dispute that the federal, provincial and municipal governments in this country have had a rational basis for the actions they have taken to protect the public from the serious harms of COVID-19, including the governments’ vociferous promotion of universal vaccination and the imposition of mandatory vaccine requirements. In other words, it is an indisputable fact that governments across Canada have had a rational basis for insisting that, in some circumstances, people must either get the COVID-19 vaccine or risk losing certain rights and privileges when they venture outside their own home.

Is compelling an offender to receive a COVID-19 vaccine as a condition of being released pending sentence a necessary and “reasonable” bail condition pursuant to s. 515(4)(h) of the Criminal Code?

[26] As I noted at the outset, the issue before me is not whether any unvaccinated citizen can, or should, be ordered to receive an approved COVID-19 vaccine. However, Mr. Bains is not just any unvaccinated citizen. He has been found guilty of a serious crime of violence and is now on bail pending his return to court for an in-person hearing to determine whether he will be sent to jail. There is a real risk that Mr. Bains may end up being transported directly to jail from that in-person hearing where he will then be exposed to hundreds of other inmates and jail staff. The issue before me was whether, as a condition of releasing him until he returned for sentencing, Mr. Bains should be required to get a COVID-19 vaccine so as to minimize the risks of causing harm to others and to the administration of justice were he to contract COVID-19 just prior to that hearing.

[27] Section 515(4)(h) of the Criminal Code of Canada authorizes judges to require that an accused person who is subject to judicial interim release (i.e., bail) “comply with any other reasonable conditions specified in the order that the justice considers desirable”. While compelling Mr. Bains to receive a COVID-19 vaccine would undoubtedly be “desirable” from a broad public interest perspective, the question for me was whether it would amount to a “reasonable” bail condition under s. 515(4)(h) based upon how that section of the Code has been interpreted by appellate courts.

[28] One of the early appellate decisions interpreting the scope of “reasonable” bail conditions permitted by s. 515(4)(h) was a decision 40 years ago from the Quebec Court of Appeal, authored by (then) Justice Lamer, who later became Chief Justice of the Supreme Court of Canada. In Keenan v. Stalker Mun. J. et al, 1979 2955 (QC CA), [1980] 12 C.R. (3d) 135, (Que. C.A.)[^5], the accused had been charged with the criminal offence of being found in a common bawdy house. As a condition of being released on bail pending his trial, the bail hearing justice had ordered the accused to submit to medical treatment aimed at detecting and treating any possible venereal disease. On appeal, Lamer J.A. concluded that the imposition of a bail condition compelling such medical treatment was not reasonable because there was no basis for the justice to have determined that it was necessary in that particular case. In the absence of a nexus between the accused’s threat to public health and the statutory bail concerns, it was wrong for the justice to have imposed a bail condition simply because he believed it to be in the broad public interest.

[29] In Keenan, Lamer J.A. also held that it was unreasonable for the justice to have inferred that every person charged with being found in a common bawdy house had a venereal disease and, therefore, posed a danger to the public. Lamer J.A. did note, however, that if there had been evidence showing the accused to have been infected with a contagious disease, it would have been open to the justice to order treatment as a condition of bail release. In other words, while medical treatment cannot routinely be imposed as a condition of bail in every case involving public health concerns, the justice in Keenan may reasonably have required the accused to get treatment necessary to alleviate a threat to public health had there been reason to be concerned in that particular case.

[30] In R. v. Zora, 2020 SCC 14, [2020] S.C.J. No. 14, the Supreme Court of Canada recently revisited the scope of “reasonable” bail conditions which may be imposed under s. 515 of the Code. After re-emphasizing the principle that conditions of bail must be aimed at preventing the concerns set out in s. 515(10), the Court offered some cautionary guidelines for judges when fashioning bail conditions:

• “A condition that merely seems ‘good to have’, but is not necessary for the accused’s release, is not appropriate…” (at para. 85)
• “[B]ail conditions cannot contravene federal or provincial legislation or the Charter….” (at para. 87)
• “Conditions will only be reasonable if they realistically can and will be met by the accused…” (at para. 87)
• “[R]ehabilitating or treating an accused’s addiction or other illness is not an appropriate purpose for a bail condition – a condition will only be appropriate if it is necessary to address the accused’s specific risks….” (at para. 92)

As in Keenan, the Court in Zora held that it may be appropriate to impose a bail condition targeting an accused’s illness if doing so was necessary to address one of the bail concerns in that particular case and the bail condition was narrowly tailored to address that case-specific concern: see R. v. Zora, supra at paras. 92 and 93.

[31] There are other provisions in the Criminal Code which authorize judges to order accused persons to receive medication when necessary. Section 672.58 of the Code empowers judges to order a mentally ill accused found unfit to stand trial to be forcibly injected with anti-psychotic medications when necessary to restore that accused’s mental capacity to participate in the trial process. The decision of whether to compel an accused to receive the medication is not focused upon whether the accused needs or wants the medication, but on whether administration of the drug will promote the public’s interest in moving the case forward. So long as the risk of harm from the proposed treatment is not disproportionate to the anticipated improvement in the accused’s mental capacity, the Criminal Code says that the medication may be forced upon the accused against his or her will.

[32] There is also legislation in provinces across Canada, dating back decades, which authorizes judges to order the forced treatment (and, in some cases, detention) of citizens who present a real risk of harm to others in the community as a result of their mental illness. According to those laws, when satisfied that a person’s untreated mental illness renders them a significant threat if exposed to others in the community, a court may order that the individual be given “the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects”: Fleming v. Reid, 1991 2728 (ON CA), [1991] O.J. No. 1083 at para. 40 (C.A.). The “severe and sometimes irreversible adverse side effects” which our legal system accepts as a reasonable risk to mentally ill individuals in order to reduce their threat to public health and safety include:

… a number of muscular side effects known as extra-pyramidal reactions: dystonia (muscle spasms, particularly in the face and arms, arms, irregular flexing, writhing or grimacing and protrusion of the tongue); akathesia (internal restlessness or agitation, an inability to sit still); akinesia (physical immobility and lack of spontaneity); and Parkinsonisms (mask-like facial expression, drooling, muscle stiffness, tremors, shuffling gait). The drugs can also cause a number of non- muscular side effects, such as blurred vision, dry mouth and throat, weight gain, dizziness, fainting, depression, low blood pressure and, less frequently, cardiovascular changes and, on occasion, sudden death.[^6]

[33] In this case, I am satisfied that Mr. Bains’ unvaccinated status creates a very real risk that he could contract the omicron variant of COVID-19 prior to his sentencing hearing. Consequently, I have real concerns that his unvaccinated status increases the likelihood that he will not attend court for his sentencing. If Mr. Bains contracts COVID-19 shortly before his scheduled sentencing hearing, he will not be permitted to attend court and the hearing will have to be adjourned. While vaccination may not entirely eliminate that risk, vaccination will significantly reduce the chance of Mr. Bains contracting COVID-19 and having to miss his scheduled sentencing hearing (i.e., the primary bail concern: s. 515(10)(a)).

[34] In addition, were Mr. Bains to unknowingly contract COVID-19 shortly before his sentencing hearing, there would be a significant risk of harm to anyone present in the courtroom for that hearing (i.e., the staff, the lawyers, the victim and interested members of the public) and, if Mr. Bains is sentenced to prison, to the staff and inmates at the jail. The finding of guilt on September 22, 2021, dispels the presumption of innocence and therefore diminishes Mr. Bains’ right to remain free in the community until his sentencing hearing on February 9, 2022. Despite the indication that the Crown would ultimately be asking me to sentence Mr. Bains to imprisonment, I decided that it was appropriate to release Mr. Bains on bail pending his sentencing hearing. In doing so, however, I decided that it would be necessary to impose a condition aimed at reducing the risk of him contracting COVID-19 while on the judicial interim release order. Apart from the threat to the “safety of the public” should Mr. Bains contract COVID-19 (i.e., s. 515(10)(b)), him contracting COVID-19 just prior to sentencing would also risk undermining the public’s confidence in the administration of justice (i.e., s. 515(10(c)). Allowing an unvaccinated offender to recklessly increase his risk of harm to others[^7] while allowed to be at large on judicial interim release pending sentence, could bring the administration of justice into disrepute. In the circumstances of this case, imposing a condition aimed at reducing the risk of Mr. Bains contracting COVID-19 while on bail is not only “reasonable”, it is necessary to ensure the safety of the public and to maintain the public’s confidence in the administration of justice.

Is the imposition of a bail condition requiring that Mr. Bains be vaccinated prior to attending court for his sentencing hearing constitutionally reasonable?

[35] With the advent of the Charter of Rights and Freedoms in 1982, the power to craft bail conditions under s. 515(4)(h) of the Criminal Code must now be interpreted in a manner which respects the presumption of innocence and the constitutional right “not to be denied reasonable bail without just cause” that are enshrined in the Charter: ­R v. Zora, supra at paras. 20. When exercising the discretion to impose a “reasonable” bail condition pursuant by s. 515(4)(h) of the Code, a judge must be careful to avoid infringing other rights protected by the Charter: R. v. Zora, supra at paras. 87 and 98. That said, even if the proposed bail condition might impinge upon one or more of those other Charter values, the bail condition could still be constitutionally justifiable if its encroachment on Charter values is proportionate to the risk otherwise posed by the accused: R. v. Zora, supra at para. 99.

[36] The rights-claim most commonly advanced by opponents of mandatory vaccine initiatives has been the notion that individuals have an absolute “right” to decide for themselves whether or not to receive medical treatment. Admittedly, there is a longstanding common law “right to determine what medical procedures will be accepted and … [a] right to decide what is to be done to one’s own body”: Ciarlariello v. Schacter, 1993 138 (SCC), [1993] 2 S.C.R. 119 at 135 and A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30. There is also a well-settled constitutional “right to make fundamental personal choices free from state interference”, which includes a right to bodily autonomy, enshrined in s. 7 of the Charter: see Carter v. Canada (A.G.), 2015 SCC 5, [2015] S.C.J. No. 5 at para. 64. With the putative support of these rights, opponents of Canada’s COVID-19 vaccine initiatives argue that they have an unfettered right to decide for themselves whether to get the government-approved COVID-19 vaccines. With the greatest of respect, this rights-claim greatly overstates the scope of both the common law right to refuse medical treatment and the constitutional right to bodily autonomy.

[37] None of the common law rights or constitutional rights enjoyed by Canadians are absolute. Common law rights may be subject to legislative limits. Charter rights are subject to reasonable limits which may be justifiably necessary in our “free and democratic society”: see s. 1 of the Charter of Rights and Freedoms. In addition, the protection specifically afforded to the “life, liberty and security of the person” rights in s. 7 of the Charter is expressly qualified by the phrase “except in accordance with the principles of fundamental justice”. In other words, s. 7 of the Charter allows for the infringement of the rights it protects so long as any such infringement accords “with the principles of fundamental justice”.

[38] Section 7 does not list “the principles of fundamental justice” that determine whether an application of the law which infringes “life, liberty or security of the person” amounts to a constitutional violation. Over the past three decades, courts in Canada have developed some guidelines for making that assessment. In the aftermath of the Supreme Court of Canada’s decision in Bedford v. Canada (A.G.), 2013 SCC 72, [2013] S.C.J. No. 72, it is now clear that there are three primary “principles of fundamental justice” which should guide a court’s decision as to whether state action which infringes a right to “life, liberty or security of the person” violates s. 7 of the Charter: arbitrariness, overbreadth and gross disproportionately.

[39] In the Carter decision, the Supreme Court of Canada explained how courts should assess whether an application of the law is unconstitutionally arbitrary, overbroad or grossly disproportionate:

The principle of fundamental justice that forbids arbitrariness targets the situation where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person: Bedford, at para. 111. An arbitrary law is one that is not capable of fulfilling its objectives. It exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law. (at para. 83)

The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object: Bedford, at paras. 101 and 112-13. Like the other principles of fundamental justice under s. 7, overbreadth is not concerned with competing social interests or ancillary benefits to the general population. A law that is drawn broadly to target conduct that bears no relation to its purpose "in order to make enforcement more practical" may therefore be overbroad (see Bedford, at para. 113). The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty, or security of the person in a way that has no connection with the mischief contemplated by the legislature. The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammeled. (at para. 85)

This principle is infringed if the impact of the restriction on the individual's life, liberty or security of the person is grossly disproportionate to the object of the measure. As with overbreadth, the focus is not on the impact of the measure on society or the public, which are matters for s. 1, but on its impact on the rights of the claimant. The inquiry into gross disproportionality compares the law's purpose, "taken at face value", with its negative effects on the rights of the claimant, and asks if this impact is completely out of sync with the object of the law (Bedford, at para. 125). The standard is high: the law's object and its impact may be incommensurate without reaching the standard for gross disproportionality (Bedford, at para. 120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 47). (at para. 89)

[40] Before turning to an assessment of whether compelling COVID-19 vaccination as a bail condition would accord with the principles of fundamental justice, I note that the Court of Appeal for Ontario, applying the legal framework from Carter, has recently held that provincial legislation authorizing the forced administration of medication to mentally ill persons who are threats to public safety accords with s. 7’s “principles of fundamental justice”: Thompson v. Ontario (A.G.), 2016 ONCA 676, [2016] O.J. No. 4801 (C.A.).

[41] There may be some debate as to whether the relevant “object” for the constitutional analysis should be the object of s. 515(4)(h) of the Criminal Code (the law authorizing the imposition of “reasonable” bail conditions) or the object of the proposed bail condition in this particular case. Seeing as how s. 515(4)(h) has been in place for many years without ever having been the subject of constitutional criticism[^8], and there having been no such constitutional challenge brought in Mr. Bains’ case, I am satisfied that it is not necessary for me to decide whether the Code provision generally accords with the principles of fundamental justice. Instead, it is appropriate for me to focus on whether the “principles of fundamental justice” allow for the application of s. 515(4)(h) in the manner I have proposed in this case.

[42] As I have already noted, the object of imposing a bail condition requiring Mr. Bains to get a COVID-19 vaccination was to reduce the risk that he would contract COVID-19 prior to attending court and, potentially, prior to him being sent to jail. Insisting that Mr. Bains obtain a vaccine which the Canadian government has determined is effective in preventing the contraction and transmission of COVID-19 is rationally connected to that object. While it is correct to observe that many who have been fully vaccinated are still contracting the omicron variant of COVID-19, public health officials continue to emphasize that the risk of contracting the new variant of COVID-19 remains significantly lower for those who have been vaccinated.[^9] Moreover, the length of time that a person who contracts COVID-19 remains a risk to others is also apparently reduced by vaccination. Requiring Mr. Bains to get vaccinated against COVID-19 would help achieve the object of reducing his risk of transmitting COVID-19 to others present in the courtroom for his sentencing or to others at the jail should he be sentenced to imprisonment.

[43] Turning to the potential “overbreadth” of the proposed bail term, I note that the object of the condition was to reduce the risk of Mr. Bains contracting COVID-19 just prior to his sentencing hearing. The object was not to reduce the risks of harm that unvaccinated persons, like Mr. Bains, pose generally to others in the community. In other words, while there may be limited options for governments to effectively reduce the societal harms caused by unvaccinated individuals who expose themselves to the community[^10], there was an alternative to compelled vaccination which could still effectively reduce the narrower set of risks in the context of the criminal case before me. Accordingly, in the face of that alternative measure for achieving the object in this case, I ultimately determined that it would not be necessary to deny Mr. Bains the right to choose whether to get the COVID-19 vaccine.

[44] In keeping with the approach taken by governments across Canada, I determined that it would be equally effective for me to order Mr. Bains to quarantine inside his home immediately prior to his attendance at court and to produce the results of three COVID-19 tests taken during that quarantine period.[^11] So long as Mr. Bains remained in quarantine and his tests were all “negative”, the risk of him unknowingly contracting COVID-19 prior to his attendance at court would be significantly reduced. The object of imposing the condition on his bail pending sentence was not to eliminate the risk, but rather to reduce the risk to an acceptable level. In light of the fact that Mr. Bains was a 44-year old first offender and had successfully complied with the terms of his judicial interim release for almost two years since his arrest, I was confident that he would abide by a term requiring him to quarantine for the 14-day period leading up to his sentencing hearing.

[45] Finally, I have no trouble concluding that the bail condition which I ultimately fashioned in this case was not “grossly disproportionate” to its impact on Mr. Bains’ s. 7 rights to liberty or security of the person. As the Supreme Court of Canada has repeatedly noted, the “gross disproportionality” standard “is high: the law’s object and its impact may be incommensurate without reaching the standard for gross disproportionality”: see Carter v. Canada (A.G.), supra. The bail condition I have imposed effectively gave Mr. Bains a choice between voluntarily getting a vaccine which the world has determined to be safe or remaining under strict house arrest for the 14-day period leading up to his sentencing hearing. If he remained fundamentally opposed to the vaccine, he could still opt for the brief house arrest just prior to his sentencing hearing. Confining an accused to their home as a condition of bail is not uncommon in our criminal justice system. Often those house arrest bail conditions last for months or even years. Mr. Bains’ house arrest bail condition would last for only 14 days. Moreover, the bail condition was only imposed after Mr. Bains had already been found guilty of his criminal offence, that is, at a time when he was no longer presumed innocent and, thus, no longer entitled to the same robust right to reasonable bail as an accused awaiting trial. When considered in the context of the law of bail in Canada, the bail condition I ultimately imposed on Mr. Bains was not grossly disproportionate to the harms it aimed to prevent.

[46] Had I determined that quarantine would not be an effective alternative to address the bail concerns in Mr. Bains’ case and, instead, that vaccination was a necessary condition of granting him judicial interim release, I would have been satisfied that any infringement of s. 7 was nevertheless justifiable in the exceptional context of the pandemic: see R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. While courts have been reluctant to excuse infringements of the rights guaranteed by s. 7, in R. v. Malmo-Levine 2003 SCC 74, [2003] S.C.J. No. 79 at para 99, the Supreme Court of Canada recognized that the scope of any “right to autonomy” protected by s. 7 of the Charter must take into account the fact that each citizen does not “live in isolation but are part of a larger society” and that the scope of s. 7’s protection must “take into account the social nature of our collective existence”.

[47] The legal test for determining whether the infringement of a Charter right is justified in our “free and democratic society” involves weighing the importance of the infringement’s objective against the importance of the right which has been infringed. The serious societal harms caused by unvaccinated individuals unnecessarily exposing others to COVID-19 are, by this point in the pandemic, sadly obvious. The object of reducing an unvaccinated individual’s risk of contracting, and then exposing others to, COVID-19 is “pressing and substantial”. Governments across Canada and around the world have repeatedly said so. Governments have also recognized that the measures initially put in place to prevent transmission of the COVID-19 virus in the early stages of the pandemic (e.g., social distancing and masking), do not provide the same level of protection against the omicron COVID-19 variant as do the vaccines. In view of Health Canada’s determination about the safety and efficacy of the COVID-19 vaccines, and the government initiatives to mandate vaccinations whenever possible, I am also satisfied that, if quarantine is unlikely to work, it would be reasonably necessary to require an offender to get vaccinated before returning for an in-person sentencing involving a chance of imprisonment. The fact that a person has been proven to have committed a criminal offence provides some basis for concluding that the person is equally prepared to selfishly ignore other aspects of the “social contract”, like public health restrictions designed to reduce the risks of contracting and transmitting COVID-19.

[48] Lastly, the “deleterious” impact on Mr. Bains’ s. 7 right to bodily autonomy is outweighed by the “salutary” effect of requiring him to be vaccinated before attending court for his sentencing hearing. While Canadian appellate courts have held that the right to bodily autonomy and the right to make decisions about one’s medical treatment are both of fundamental importance to our free and democratic society, no Canadian court has ever held that those individual rights are more important than the collective right to public health and safety. Put simply, no Canadian court has held that an individual’s right to make choices about medical treatment extends beyond matters which would only risk causing harm to that individual.[^12] Moreover, the more irrational the health “choice” that an individual makes, the less important the right to make that choice would seem to be.[^13] Vaccination would not only help protect the public, the science overwhelmingly shows that it would also help protect Mr. Bains. This is not to say that an individual’s right to bodily autonomy must be exercised rationally before being entitled to some constitutional protection. However, the Ontario Court of Appeal has held that personal health choices based only on an individual’s subjective beliefs should be afforded less protection under s. 7 of the Charter: see R. v. Schmidt, 2014 ONCA 188. On balance, an irrational exercise of the “right” to refuse COVID-19 vaccines proven safe and effective should weigh far less than society’s substantial interest in having all of its citizens vaccinated as a way to reduce the spread and harms of COVID-19. In this case, Mr. Bains did not express a rational reason for refusing the COVID-19 vaccination.[^14] In the circumstances of this case, I would have been prepared to find that the negative impact on Mr. Bains’ s. 7 Charter rights paled in comparison to the benefits of forcing him to get vaccinated before returning to court for his sentencing.

Conclusion

[49] Pursuant to s. 515(4)(h) of the Code, I have ordered that Mr. Bains enter into a judicial interim release pending his sentencing hearing which includes the following term:

Remain under strict House Arrest for the 14 (fourteen) days prior to the date you are to appear in court for sentencing and you will produce, at your sentencing hearing, 3 (three) negative, government approved, COVID-19 tests taken at least (3) three days apart, during that period of quarantine.

[50] Should it come to light that Mr. Bains has failed to comply with the above-noted term, it would seem appropriate in the unique circumstances of this case for the Crown to consider proceeding by way of a “judicial referral hearing” back before me, pursuant to s. 523.1 of the Code, prior to taking any other more drastic measure: see R. v. Zora, supra at para. 27.

Released: January 17, 2022

Signed: Justice P.K. Burstein

[^1]: As of the writing of this judgment, the Government of Ontario has not ordered Ontario Court of Justice courthouses closed to in-person attendances because of the omicron variant. It is anticipated that Mr. Bains will still be required to attend in person on February 9, 2022 for his sentencing hearing.

[^2]: Public health officials have come to realize that the COVID-19 vaccines do not provide as much protection against contracting the omicron variant of COVID-19, as compared to earlier variants. However, those officials also say that the vaccines still significantly reduce the risk of infection, the risk of transmissibility, and the risk of suffering serious health consequences.

[^3]: Reports of suspected adverse consequences are just that – reports. These reports need not be verified before they are recorded. They serve as a basis for further scientific investigation into the potential for such adverse health effects from the vaccines.

[^4]: See, for example, R. v. Brown, 2021 ONCJ 446 at para. 38; R. v. McKinnon, 2021 ONSC 2749 at paras. 8-26; R. v. Bdeir, 2021 ONCJ 54 at para. 3; and R. v Jeffries, 2021 ONCJ 98 at paras. 22 – 24 and 30.

[^5]: The validity of the reasoning in Keenan was more recently confirmed by the B.C. Court of Appeal in R. v. Patko, 2005 BCCA 183.

[^6]: This range of potential side-effects seems far more serious and prevalent than those which governments have identified in relation to the COVID-19 vaccines.

[^7]: Indeed, significantly increasing one’s risk of contracting COVID-19 by choosing to forego a vaccine, determined by the government to be safe and effective, amounts to “reckless disregard” of the risks of both contracting and transmitting COVID-19. Given the serious health consequences which could result in the others to whom COVID-19 might be transmitted, it could fairly be said that an unvaccinated person who contracts and then transmits COVID-19 to others has caused them “bodily harm” by virtue of a reckless disregard for the lives or safety of others. Section 221 of the Criminal Code makes it a criminal offence to cause bodily harm by virtue of reckless disregard to the safety of others. As Lamer J.A.’s comments in Keenan suggest, where an accused’s illness may result in the commission of a particular offence, this alone may suffice as the basis upon which to order the accused to get “treatment” as a condition of bail. In the circumstances of Mr. Bains’ case, however, I need not decide that issue.

[^8]: Most recently, in R. v. Zora, the Supreme Court of Canada said nothing in its discussion of s. 515(4)(h) which hinted at any concern that it may not generally be “in accordance with the principles of fundamental justice”.

[^9]: Considering the millions of Ontarians who have now been vaccinated, a relative comparison between the number of vaccinated and unvaccinated people contracting the omicron variant or being hospitalized for COVID-19 is misleading. In light of the much larger number of vaccinated people as compared to unvaccinated people in Ontario, the percentages of vaccinated people contracting the omicron variant of COVID-19 and requiring hospitalization are much smaller than the percentage of unvaccinated people contracting the illness and the percentage of them requiring hospitalization.

[^10]: The societal harms occasioned by unvaccinated citizens are now well-known. Hospitals in Ontario and across Canada have recently become overwhelmed because of the rapid spread of the omicron variant. The recent increase in COVID-19 hospitalizations has resulted in the cancellation of non-emergency surgical procedures for patients with serious health conditions unrelated to COVID-19, such as heart problems or cancer. Apart from the direct impact on hospitals, the recent rapid spread of COVID-19 in Ontario facilitated by the population of unvaccinated people has also resulted in the shut down of businesses and the closure of schools.

[^11]: At the time of the hearing, this was the protocol in place for unvaccinated travelers entering Canada from abroad. This alternative measure for managing the bail concerns presented in Mr. Bains’ case was also crafted at a time when government-sponsored PCR tests were reasonably available and when there was no apparent shortage in rapid antigen COVID-19 test kits available to the public.

[^12]: The nature of the “right” at issue in this case is not whether citizens should have the right to decide whether or not to get a COVID-19 vaccine, but whether citizens should have the right to refuse getting the vaccine knowing that the “social nature of our collective existence” will require the unvaccinated to expose themselves to others on a day-to-day basis. Individuals can no more be said to have an absolute “right” to refuse a government-approved COVID-19 vaccine aimed at alleviating a public health threat than any other “right” to do things in public which individuals may be permitted to do with impunity when alone at home. Walking around naked may be perfectly acceptable within the confines of one’s home, but not so much when going out to buy groceries. Being intoxicated may be acceptable when sitting in one’s favorite chair at home, but not so much when sitting in the driver’s seat of a car on the way to work. Context is everything.

[^13]: Our legal system has long recognized that the right to make medical decisions does not include the right to ignore sound medical science promoting treatment and to instead base the decision on unscientific criteria. For example, courts may order a child to receive a necessary blood transfusion even when the child and/or their parents have already refused the medical treatment on religious grounds: see New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 and A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] S.C.J. No. 30.

[^14]: For the purposes of this case, I need not decide whether there even is any rational basis for refusing the government-approved COVID-19 vaccines. I recognize that the world’s scientific community overwhelmingly accepts that there is no rational basis for concern about the COVID-19 vaccines’ safety (other than for a narrow class of people with particular pre-existing health conditions) and that there is no rational basis for disputing the efficacy of the vaccines in reducing the harmful effects of COVID-19.