His Majesty The King v. Antony Muchemi, 2024 ONCJ 287

ONTARIO COURT OF JUSTICE

Date: May 29, 2024 City: Toronto

Court File Numbers: 4810 998 22 10004372 4810 998 22 10001429 4810 998 23 48110541 4810 998 21 75003854 4810 998 22 10005086 4810 998 21 15001001 4810 998 21 00362056 4810 999 22 10000663 4810 998 22 10003038 4810 999 21 75060131 4810 998 21 15006540 4810 998 21 75001357 4810 998 23 48106217 4810 998 22 10005748 4810 998 23 10002868 4810 998 21 45002452

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANTONY MUCHEMI

Before: Justice of the Peace R. Shawyer

Heard on: May 23, 2024. Reasons for Judgment released on: May 29, 2024

Counsel: J. Lee ..................................................................................................... counsel for the Crown T. Kent ............................................................................................. counsel for the accused

JUSTICE OF THE PEACE SHAWYER:

Introduction

[1] This Court presided over a judicial interim release hearing (“bail hearing”) on May 24, 2024. Usually, the purpose of the hearing is to determine whether an accused should be released or detained awaiting resolution of their charges. However, that was not the case in this hearing. During this hearing the focus was on whether a preventative detention was appropriate.

[2] The charges that Antony Muchemi are facing in the Toronto Region are follows:

February 18, 2021

1. Assault Resist Arrest
2. Assault Peace Officer (x2)

March 23, 2021 3. Mischief Under (x2)

August 3, 2021 4. Assault with a Weapon (x2) 5. Fail to Comply with Release Order

August 6th, 2021 6. Theft Under $5,000

August 18th, 2021 7. Theft Under $5,000 8. Plate not visible

December 2, 2021 9. Mischief Under $5,000

February 2, 2022, 10. Mischief Under $5,000 11. Assault with a Weapon 12. Obstruct a Peace Officer

April 28th, 2022 13. Mischief Under $5,000 14. Fail to Comply Release Order

July 26th, 2022 15. Fail to Leave Premises

August 26th, 2022 16. Assault 17. Assault with a weapon

September 28th, 2022 18. Assault 19. Assault Peace Officer (x3) 20. Obstruct Peace Officer (x2)

May 10, 2023 21. Mischief Under $5,000 22. Assault Peace Officer (x3)

May 28, 2023 23. Theft Under $5,000 24. Threaten Death/Bodily Harm 25. Assault

[3] The charges that Antony Muchemi are/were facing outside of the in the Toronto Region are follows:

Dec 17, 2022 26. Not specified by the Crown. However, the Crown read the following allegations into the record: (a) Accused was staying at Our Place Peel. Staff attempted to inform him that his room number had changed but he ignored their directions and entered the room, ripped a metal curtain rod from the ceiling and smashed an electrical box. Total was approximately $300. Accused then pointed the metal rod at the 2 staff and told them to get away from his stuff then chased them out of the room and motioned the rod in a threatening way. The police located the Accused inside the room.

June 14, 2023 – Central East Region (Vaughan) 27. Theft Under $5,000 28. Possession of Property Obtained by Crime

[4] At the end of the day the Court determined that a preventative detention order was not appropriate. The Court then advised counsel and Mr. Muchemi that written reasons would be provided explaining the Court’s reasoning. Mr. Muchemi was then released.

[5] These are those reasons. They have been provided to both Crown and defence counsel, through the Clerk of the Court, via email as of the date of these reasons.

Mr. Muchemi’s background

[6] At the time of Mr. Muchemi’s bail hearing the Court heard that:

1. He is a 24-year-old permanent resident of Canada.
2. He came to Canada from Kenya in 2019.
3. Initially he lived with his father but eventually had to move to a shelter due to his father’s alcoholism and instability.
4. He professes to have anger management issues and is open to meeting with a psychiatrist to determine if he has any mental health issues; and
5. That he does not have a criminal record.

Crown Synopsis

[7] At the start of Mr. Muchemi’s bail hearing the Crown filed a bail package that was initially made exhibit #1 on consent. The Crown then read a summary of the police synopsis for each offence date into the record. While going through the police synopsis for each offence date it became obvious that the bail package filed with the Court was not the bail synopsis that the Crown was referring to. Therefore, the Crown filed an amended Crown bail package that on consent was made exhibit #1 instead.

[8] The Court did not take Mr. Muchemi’s counsel’s consent as an admission of facts. Rather the Court understood defence counsel’s consent to be an agreement that the allegations contained in the bail package were allegations before the court which had yet to be proven: See R v. John, 2001 CarswellOnt 2948 (S.C.J.).

Onus and 524 CCC

[9] At the start of the hearing the parties agreed that Mr. Muchemi was in a reverse onus position pursuant to s. 524(3) of the Criminal Code of Canada (hereinafter “CCC”). The reason that the onus was reversed is because it is alleged that R.P. breached their previous release order by committing further offences while out on bail. Therefore, it was Mr. Muchemi’s burden to prove on a balance of probabilities that they are releasable while waiting for their charges to be resolved.

[10] As it is a reverse onus it is up to Mr. Muchemi to demonstrate that their continued detention, pending trial, is not required. Mr. Muchemi was required to demonstrate this on a balance of probabilities.

[11] Saying something is proven on a balance of probabilities simply means that it is more likely than not to be the case. It means that it is probable, not to the standard of beyond a reasonable doubt, that an accused does not need to be detained on either the primary, secondary, or tertiary grounds or a combination thereof. As such, an accused in a reverse onus situation does not have to show that they are unlikely to ever reoffend under any circumstances or for all time, but only to establish that the risk of their reoffending in a way that would jeopardize public safety can be reduced to tolerable levels by the restrictions and supervision imposed in a bail order: See R v. Tully, 2020 ONSC 2762 at paragraph 23.

[12] The Court must begin from the standpoint, as found in the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 (“Charter”), that an accused is presumed innocent until the final disposition of all their outstanding charges. They have the right not to be denied reasonable bail without just cause. As Chief Justice Wagner observed in R. v. Myers, 2019 SCC 18 (“Myers”), the right to liberty and the presumption of innocence are fundamental tenets of the Canadian criminal justice system. They must always be borne in mind in the pre-trial context of a Canadian criminal law proceeding. That release—at the earliest opportunity and in the least onerous manner – is the default presumption in the Canadian criminal law system. This presumption is enshrined Canadian law pursuant to s. 493.1 CCC.

[13] The charges Mr. Muchemi are numerous. Nonetheless, this Court must bear in mind that release is the norm and detention is the exception—and this is so even when the Crown appears to have a strong case: R. v. Doucette [2016] O.J. No. 852 (S.C.J.). Moreover, while an accused faces serious charges, it is settled law bail is possible in connection with all offences or category of offences: R. v. Lafromboise, [2005] O.J. No. 5785 (ONCA).

[14] When determining whether an accused is releasable a Court must weigh the evidence presented and submissions made when deciding the appropriateness of releasing an accused. Further, the role of a Court at the bail stage is to decide which is the most probable version of future events - the version presented by the Crown, or the version presented by the accused. When evaluating the proposed plan of release, it is trite to say perfection is not expected. In addition, if the accused is proposing a surety as part of their plan of release the weight of the caselaw says a proposed surety need not be more than adequate: See Ofori-Mensah 2021 ONSC 90, [2021] O.J. No. 79 (SCJ).

[15] A Court must also bear in mind, at the bail stage, the principle of restraint when determining whether to release an accused on bail or not. This principle is found in R. v. St.-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27 (“St-Cloud”). This principle has since been reaffirmed by the Supreme Court of Canada (“Supreme Court”) in R. v. Zora, 2020 SCC 14, at para. 83 (“Zora”), R. v. Antic, 2017 SCC 27 (“Antic”), at para. 29, and Myers, at para. 25. Further, this principle has been codified in s. 493.1 of the CCC as follows:

In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

Allegations

[16] The Crown alleges the following:

1. On Thursday February 18th, 2021, Police officers were called to 60 Brant Street in the city of Toronto regarding an unwanted guest called in by staff of the youth housing. Police Officers arrived on scene and asked the accused to leave however he refused. After several communication attempts, Complainant #1 attempted to grab the accused's arm and escort him off the property. The accused then pulled away with force and continued to refuse to leave in an agitated state. Other officers arrived on scene to assist, including Complainant #2 and Complainant #3. While officers were attempting to escort the accused from the property, the accused attempted to head butt Complainant #1 in the head. The accused was arrested and taken to the ground, continuing to resist arrest. Once the accused was restrained and officer were escorting the accused off the property, the accused intentionally spat in the direction at Complainant #2 and Complainant #3 repeatedly trying to strike them with his saliva. Because there is an ongoing pandemic worldwide, this disregard for personal hygiene and overall health is concerning.
2. On Tuesday, March 23rd, 2021, at 3:53 am, the accused Muchemi was discharged from the St. Michael's hospital, and he was escorted out of the hospital by security. A few minutes later, Muchemi used a rock to break one of the four panel of the outer emergency exit/entrance glass door. The St. Michael's Hospital Security engaged with the Muchemi and he left the scene. At 4:01 am, Muchemi returned and broke a second glass panel on the same emergency/exit door. The hospital security tried to engage with Muchemi but he fled the scene. The damage to the door is estimated to be around $500.00. At 4:13 am, Muchemi returned to St. Michael's Hospital emergency area and used a rock to damage a parked Toronto Police vehicle (Scout 1123). The Scout 1123 sustained damages to the front hood, left front hood, and headlights. The damage is estimated to be around $3000.00. The hospital security responded to the damage and Muchemi ran off on foot. The Toronto Police was contacted and advised of the incidents. At 4:52 am, Officers located Muchemi in front of the Covenant House Shelter and MUCHEMI saw Toronto Police Officers and fled on foot. A short foot pursuit was ensued with Muchemi being arrested near the intersection of Church Street and McGill Street. During the arrest Muchemi was uncooperative, struggling with officers by not giving up his hands and not following officer’s orders.
3. On Tuesday August 3, 2021, the accused was in his temporary residence, Turning Point Shelter, located at 95 Wellesley St. E. in the City of Toronto. The accused became involved in a dispute with the Complainants who are both staff members of the shelter over him not wearing a mask. The Complainant disengaged from the accused due to his escalating behaviour. A short time later, the accused had calmed down and approached the Complainants at the shelter 's front desk. The Complainants advised the accused that he was being discharged from the shelter for bad behaviour. The accused proceeded to the front door and grabbed a small hand shovel filled with salt. He returned to the front desk and began spraying the salt in the direction of the Complainants. He then proceeded to throw the shovel in the direction of both Complainants. The shovel struck POWER in the back and then hit ELLIOTT in the right hand. The accused then left the shelter. On August 18, 2021, the accused was located by police and arrested without incident. The accused was given his rights to counsel, transported to 51 Division in Toronto, and held for a show cause hearing.
4. On Wednesday December 2nd, 2021, at approximately 1500 hours the accused was discharged from the YMCA located at 7 Vanauley Street in Toronto after being violent toward staff members. The accused returned at approximately 1900 hours. He asked the witness if he could have a bed. The witness denied the accused a bed at which point the accused left. The accused returned for the second time at approximately 2200 hours with a 5-foot-long steel pole in his hands. The accused struck the front window of the YMCA with the pole causing it to shatter and break. The accused fled the scene on foot, Officers located the accused at Queen Street West and Cameron Street in Toronto. Damage to the window is approximately $1000.
5. On Wednesday February 2, 2022, at approximately 3:30 PM the accused was observed inside of the LCBO store located at 595 Bay Street in the City of Toronto. The accused is observed placing a 795ml bottle of Crown Royal into his jacket pocket. The accused then selects another 795ml bottle of Crown Royal and a can of beer from the shelf. The accused approaches the cash and places 1 bottle of Crown Royal and the can of beer on the cashier's counter. Loss prevention advised the accused to take the second 795ml bottle of Crown Royal out of his pocket, the accused was resistant to do so at first. The accused then proceeded to take the bottle of Crown Royal out of his pocket it and the accused dropped it on the floor, causing the bottle to break. The accused is subsequently escorted out of the store. As the accused was being escorted, he grabs a Crown Royal Gift box (which contained two (2) 795ml bottles of Crown Royal) turns towards the Complainants and hurls the box at the Complainant, striking the Complainant in the knee. The accused then flees the store. Loss prevention catches up to the accused and arrests the accused. Police attend the store and continue the arrest. The accused only identified verbally. Officers conducted data base checks as well as checked with CBSA, yet the accused was unable to be identified. The accused was cautioned for obstruct Police and the accused continued to give the same name.
6. On Friday, August 6th, 2021, at 6:07 pm, an unknown male pulled up to the pumps of the Petro Canada located at 2320 Lawrence Ave East, Toronto. The male exited his vehicle, a 2008 BMW 323, 4dr, silver, bearing Ontario license plate CMTZ159, and pumped $50.05 in gas into it. He then re-entered his vehicle and left the gas station without making any attempt to pay.
7. On Wednesday, August 18th, 2021, at 6:35 am, an unknown male pulled up to the pumps of the Petro Canada located at 1121 Kingston Rd, Toronto. The male exited his vehicle, a 2008 BMW 323, 4dr, silver, bearing Ontario license plate CMTZ159, and pumped $80.45 in gas into it. He then re-entered his vehicle and left the gas station without making any attempt to pay. CCTV footage was obtained, and the driver was identified as the registered owner, Antony Ndung'u Muchemi.
8. On December 2nd, 2021, the accused was arrested for charge of Mischief. On December 3rd, 2021, he appeared before Justice Roffey and was placed on a release order with the condition of "Do not be within 50 metres of 7 Vanauley Street, Toronto -- except on one occasion to retrieve your personal belongings from and only in the presence of a uniformed police officer". On Thursday, April 28th, 2022, at approximately 0400 hours, the accused attended 7 Vanauley St looking for a bed, using a false name. Staff on scene recognized him and told the accused he was not allowed on the property due to a restriction. The accused is also on conditions "do not be within 50 metres of 7 Vanauley Street, Toronto, except on one occasion to retrieve your personal belongings from and only in the presence of a uniformed police officer." A staff member attempted to find a bed elsewhere for the accused without success. The accused became upset and began banging on the glass vestibule of the shelter, then left after BONSU called police. A staff member observed the accused return to 7 Vanauley St on video surveillance at approximately 0425 hours. The accused proceeded to slash both driver's side tires of BONSU's car with a pocketknife, which was parked in the parking lot of 7 Vanauley St. Between 0425 - 0430 hours the accused returned to the parking lot of 7 Vanauley St and slashed both passenger side tires of another staff member. The accused fled before police arrival. On 2022.05.13 at approximately 16:26 hours, the accused was located and placed under arrest. He was read his rights to counsel, cautioned, and transported to 14 Division where he was held for a show cause bail hearing. YRPS was also notified by officers of the execution of the bench warrant.
9. On Tuesday July 26th, 2022, at approximately 8:15 a.m., the accused before the courts, was sleeping inside the vestibule of 21 Widmer Street. Security called Police advising the accused refused to leave the property. Officers arrived on scene and asked the male multiple times to leave, and the accused continued to sleep on the ground. Officers started to physically escort the accused up when the accused aggressively got up and began to swear at the Officers. While walking out, the accused punched the thermostat off the wall, causing it to break and make it inoperable. Officers followed the accused outside, and the accused continued to be aggressive and walked toward the Complainant in an aggressive manner with his fists clenched, coming as close as within a foot of the Complainant. The other Officer on scene demonstrated their CEW and pointed it toward the accused, which caused the accused to stop his advance and start running away. Officers followed the male and effected the arrest a short distance later.
10. On August 26th, 2022, the Accused was in front of Sol Pizza at 1033 Bay Street in the City of Toronto. The Accused picked up one of patio chair from Sol Pizza. When encountered by the Complainant #1, the Accused swung the chair at the Complainant #1 and got into scuffle with him. Complainant #2 who is a Fire chief observed this and engaged to assist the Complainant #1. The Accused punched the Complainant #2.
11. On Wednesday September 28th, 2022, at approximately 2:55 am, the accused, Antony Muchemi, attended the parking garage located at 87 Peter Street in Toronto, to smoke marijuana with his friend. The Complainant who works as a Security Officer for the parking garage, was conducting his nightly patrols when he observed the accused smoking marijuana within the building property. The Complainant asked the accused to move along because of the marijuana smoking. The accused was being loud, disruptive, and was insulting. The Complainant asked the accused to leave the premise because of his behavior but the accused refused, becoming more belligerent and aggressive. The accused then pushed the Complainant with two hands. The accused left shortly after in an unknown direction. The incident was reported to Police, and a description of the accused was provided. Attending Officers reviewed security footage of the assault and began searching the area for the accused. The accused was found a short distance away, and after the Officers developed reasonable grounds to believe he committed the assault, the accused was arrested by PC O'Donahue and PC Zammit. Throughout his interaction with these two Officers, the accused continuously resisted being arrested, stiffening his body, flailing his arms, and grabbing at the Officers. Attempting to board him in the rear of a Scout vehicle, he refused to comply, kicking his feet, and stretching his body out. Officers could not close the doors, and a Wagon was requested to ensure the accused is safely transported to 52 Division in Toronto. While attempting to board the accused into the Wagon, he kicked Special Constable Lahey striking his right hand. Throughout his time in custody, the accused was verbally and physically aggressive, uncooperative, and resisted any direction by Officers. After the booking procedure, the accused needed to be carried to his cell by three Officers. While attempting to remove his wrist cuffs and ankle shackles, the accused kept struggling with PC’s O'Donahue and Zammit, not allowing them to remove the restraints to lodge him in the cell safely. Once the Officers managed to take the cuffs and shackles off, the accused immediately began fighting them inside the cell. He was able to wrap both hands around PC O'Donahue's neck, holding her and pulling her into him. Officers were unable to close the cell gate due to the fight. Once Officers were able to release his grip from PC O'Donahue’s neck, the accused hit the head of Staff Sergeant Thorpe. The accused was finally subdued, and the cell gate was able to be closed safely. This entire interaction and the offences are captured on cell video. The accused was held for bail.
12. On December 17, 2022, the accused was staying at Our Place Peel. Staff attempted to inform him that his room number had changed but he ignored their directions and entered the room, ripped a metal curtain rod from the ceiling and smashed an electrical box. Total damage = $300. The accused then pointed the metal rod at the 2 staff and told them to get away from his stuff then chased them out of the room and motioned the rod in a threatening way. Police located the Accused inside the room.
13. On Wednesday May 10th, 2023, at approximately 5:45pm College Park Security officers attended 424 Yonge Street in Toronto for a male sleeping inside of the elevator. The accused was asleep in the elevator and refused to wake up and leave the premise. A security officer cautioned the accused during the escort out of the building. Once placed outside the building, the accused began punching the glass door as if he wanted to fight. Officers approached the accused in hopes to prevent property damage. At which point, the accused punched Complainant #1 on the chest, punched COMPLAINANT #2 in the left side of his head area, and headbutted COMPLAINANT #3 in the mouth causing the Complainant to feel dizzy. Security officers managed to handcuff and arrested the accused for assault, and quickly escorted him back to the holding cell for safety. The accused violent behavior continued in the holding cell where he was observed kicking the radiator and attempted to use broken parts as a weapon.
14. On Sunday May 28th, 2023, at approximately 2:00pm security guard Ali ELDORR was attempting to arrest the accused for theft under as he had taken 2 belts valued at $1400 from Saks 5th Avenue and made his way past all points of sale without making any attempt to pay for the property. During the arrest for theft under the accused stated to the Complainant "If you come close to me you die" The Complainant and the accused began struggling during the arrest and the accused began to punch the Complainant repeatedly in the side of the head.
15. On the 14th day of June 2023, the accused before the courts had entered into an agreement in the presence of PC Batchelar of 4 District in the Region of York to be released. The agreement had outlined multiple conditions that the accused needed to agree to be released from detention for the offences of Theft under $5000 (shoplifting) and Possession of stolen property obtained by crime, contrary to the Criminal Code of Canada. One of the agreed upon conditions were: "You must not communicate, directly or indirectly with Senyo Oswald Komld Akpalo, except in accordance with the following conditions:" On the above date and time, the accused did commit the offence of failing to comply with undertaking, contrary to the Criminal Code of Canada. The accused was detained as a part of a larger investigation that involved a woman being assaulted. During that investigation, it came to light that the accused was breaching his undertaking as he was within the presence of Senyo Oswald Komld Akpalo. Both parties were then placed under arrest.

Grounds and Analysis

[17] The Crown opposed Mr. Muchemi’s release on secondary ground concerns. The secondary ground is found in section 515 of the Criminal Code of Canada (hereinafter “CCC”). Specially 515(10)(b), which reads as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on either of the following grounds: (b) on the secondary ground (the applicability of which shall be determined only in the event that and after it is determined that his detention is not justified on the primary ground referred to in paragraph (a)) that his detention is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial

[18] When the Crown raises secondary ground concerns an accused in reverse onus is required to satisfy the Court, on a balance of probabilities, that:

1. there is not a substantial likelihood, considering all circumstances, that they will upon release from custody, commit a criminal offence, or interfere with the administration of justice and that there is not a substantial likelihood that there release endangers ‘the protection or safety of the public or the complainants; and
2. their proposed plan of release reduces the substantial likelihood below the threshold of substantially likely.

[19] The foregoing legal test was set out by the Supreme Court in R. v. Morales, [1992] 3 S.C.R. 711 at paragraph 39 (“Morales”). When considering the test in Morales no single circumstance is determinative. All the relevant circumstances before a Court must be considered and balanced.

[20] Secondary ground concerns clearly involve a risk analysis by the Court. When conducting this risk analysis a Court must take into consideration the nature of the alleged offences, whether the accused has any criminal convictions for offences involving violence and whether the accused is a vulnerable individual when determining whether a release can be fashioned that ensures that the protection and safety of the public. The proper risk analysis on the secondary ground was explained by the Supreme Court in Morales at paragraph 37 in part, as follows:

…Danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. In general, our society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime. [Emphasis added.]

[21] In Morales at paragraph’s 38 and 39, the Supreme Court reaffirmed the two factors vital to a determination of whether there is just cause for detention under s.11(e) of the Charter:

…First, the denial of bail must occur only in a narrow set of circumstances. Secondly, the denial of bail must be necessary to promote the proper functioning of the bail system, it must not be undertaken for any purpose extraneous to the bail system.

…Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a substantial likelihood of committing an offence or interfering with the administration of justice, and only where this substantial likelihood endangers the protection or safety of the public. Moreover, detention is justified only when it is necessary for the public safety. [Emphasis added.]

[22] In this context, a substantial likelihood means "a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely": See R. v. Manasseri, 2017 ONCA 226 (“Manasseri”), at para. 87.

[23] While the Supreme Court in Morales set out the test that must be satisfied when addressing the secondary grounds, the test was expanded upon in R. v. Abdel-Rahman, 2010 BCSC 189 (“Abdel-Rahman”). The Court in Abdel-Rahman at paragraph 23, stated:

“In its opinion, the decisions that a judge must necessarily make to reach the conclusion that detention is justified on the secondary ground, are:

a) First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he is released.

b) Second, that this risk is of such probability that it amounts to a “substantial likelihood”.

c) Third, that the risk would constitute a danger to public safety (in general, or to a specific Complainant or witness) if the accused is released; and

d) Fourth, that the detention of the accused is “necessary,” because the identified danger to public safety cannot be prevented or reduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties, or cash bail).

[24] The Crown argued that if released on bail there is a significant likelihood that Mr. Muchemi would breach the conditions of any bail order made by this Court. Counsel for Mr. Muchemi on the other hand proposed a plan they argued would bring below the level of substantially likely the risk of Mr. Muchemi reoffending. The plan proposed by Mr. Muchemi during the hearing was as follows:

1. That upon release, he will go directly to the Gerstein Centre, located at 100 Charles Street in Toronto, Ontario.
2. When and if he changes his address, he will advise the Officer in Charge of his new residence/address.
3. He would remain in his residence between the hours of 9:00pm – 6:00 am with the following exceptions: a. medical emergencies involving his immediate family (parent, child, spouse, or sibling). b. travelling to, from, and while at counselling sessions with the Fred Victor Society. c. travelling to, from, and while at appointments with his worker, Debbie Lynch from Central Toronto Youth Services (CTYS). d. travelling to, from, and while at any mental health treatment. e. to abide with any other court order, including court appearances.
4. He will notify the Toronto Police Service of any change of address 24 hours prior to any such change.
5. He will not have any contact with the complainant, [complainant names here], directly or indirectly.
6. He will not be within 200 metres of any complainant, EXCEPT for the purpose of attending court.
7. He will not possess any firearms, knives, crossbows, or “weapons”, as defined under the Criminal Code.
8. He will not apply for a firearms license or hunting license; and
9. He will abide by any other term that this Honourable Court may see fit to impose.

[25] Since Mr. Muchemi has come before the Ontario Court of Justice, he has been charged with a total of 28 offences between February 18, 2021, and June 14, 2023. Further, he has been in custody at the Toronto South Detention Centre (“TSDC”) since May 28, 2023, which is 5 days short of 1 year in custody as of the date of his bail hearing before this Court.

[26] The conditions at the Toronto South Detention Centre were judicially considered in the unreported decision of R v. Nanibush (“Nanibush”), a decision of Justice B. Jones released on April 12, 2024. In his decision at paragraph 44 Justice Jones quoted from Justice Molloy’s decision in R. v. Shaikh and Tanoli, 2024 ONSC 774 where Justice Molloy at paragraphs 73, 75 – 77, and 79 commented on the conditions at the TSDC:

[73] The biggest problem at the Toronto South is that there have been frequent lockdowns, both partial and full. During those lockdowns, inmates have restricted access to everything: rehabilitation programs; religious observance; fresh air; showers; cleaning products; laundry; visits and telephone calls with loved ones; and meetings and telephone calls with their lawyers. Inmates are locked up in small spaces for hours, sometimes days on end. Prison is already an anxiety producing environment. The lockdowns have the impact of exacerbating these problems and tensions frequently spill over into actual conflicts. I have been hearing these stories, and many varieties of them, for years. Conditions got worse during COVID (which is not wholly unexpected), but they have not improved much since. The most disturbing feature is that the reason for the lockdowns, almost exclusively, is staff shortages. Based on what I have been seeing in numerous cases over that year or two, the lockdowns at the Toronto South are typically between 50 to 60% of the total days in custody. This is shameful.

[75] The Toronto South cells are solid concrete. There are no windows. There is no yard. There is merely a small area off the cell block, which is bounded by concrete, and uncovered at the very top, so there is some air that can come in that way. During lockdowns, even that “privilege” is lost.

[76] Medical care for inmates housed in these institutions is also inadequate, particularly during periods of lockdown.

[77] These conditions are not humane. If the Canadian public heard that one of our citizens was being held in similar conditions in a foreign prison, especially while presumed innocent of any charges against them, they would be outraged, as they should be. And yet, these dehumanizing conditions have continued unchecked and unimproved.

[79] In 2020 the Ontario Human Rights Commission conducted an investigation into the conditions at the Toronto South and issued a report as to its findings. I will not comment here on the Commission’s findings with respect to human rights concerns and the use of segregation and restrictive confinement. However, the Commission commented on many problems that judges of this court are now finding to be routine, including: prisoners not being able to make contact with friends and family; public health concerns related to infrequent changes of bedding and clothing and outbreaks of skin conditions such as scabies; and stressful conditions caused by frequent lockdowns. The Commission noted that the Toronto South was not operating at full capacity at that time due to staff shortages and that the frequent lockdowns were also attributable to staff shortages, including staff making extensive use of “sick days” due to occupational stress-related injuries and long-term leaves due to disability. I am not aware of any follow-up taken by the Ministry of the Solicitor General in response to this report. However, I can certainly attest that my experience and that of many of my colleagues is that the conditions at the Toronto South have not improved.

[27] Justice Jones then followed up Justice Molloy’s comments about the conditions at the TSDC with his own observations. He said:

[45] My own experience as a judge of the Ontario Court of Justice has left me with the same dismal observations and conclusions. In addition to these abysmal conditions, I have heard repeatedly from respected and experienced defence counsel that when an accused person is detained at the TSDC, it is extremely difficult to have meaningful contact with them. Booking an “access defence” call is often a torturous affair, which may be cancelled at the last minute. Attending the jail to meet with the client and review disclosure is sometimes a fool’s game. One may attend and have the meeting cancelled at the last minute. The newly implemented Remote Defence Access system, permitting contact via video, is apparently similarly unpredictable.

[47] Despite the Supreme Court ruling that pre-trial detention should be “extraordinary” over thirty years ago in Morales and its admonition about the overuse of pre-trial detention in Antic, the problem in this province only continues to worsen. Those who suffer the greatest are our most vulnerable citizens – the poor, socially disadvantaged, those with mental health challenges, Indigenous Canadians, and racialized Canadians. It long ago reached a crisis level. Something must change. And it must begin to change now.

[48] Even if pre-trial detention conditions were rendered more humane, the decision to deprive someone of their liberty before they have had a trial and the Crown has proven its case should be made sparingly. Given the utterly dehumanizing conditions at the TSDC, it must be made even rarer until those conditions improve.

[28] During his evidence in chief Mr. Muchemi said some of the same things about the TSDC that Justice Molloy and Brock said. He said that that the TSDC is short staffed and that some units are locked down everyday. Fortunately, for Mr. Muchemi, as he testified, he is in a unit for accused who are behaving themselves, which affords them the right to go outside everyday. Nevertheless, Mr. Muchemi testified there are days where his unit is locked down because the TSDC is short staffed for the day.

[29] Given the conditions at the TSDC should Mr. Muchemi be detained while awaiting trial? The Crown argued he should because a significant number of the charges that Mr. Muchemi has accumulated since February 18, 2021, and the fact that while some of his charges are attributable to a lack of housing not all his charges are makes him a danger to the public.

[30] While the Crown has reasonably raised secondary ground concerns the Court must also consider the following:

1. Mr. Muchemi is not alleged to have breached the bail conditions imposed by the OCJ located in Brampton, Ontario when he was released on December 19, 2022, on bail.
2. That Mr. Muchemi does not have a criminal record,
3. Mr. Muchemi is not alleged to have breached the bail conditions imposed by the OCJ located in Brampton, Ontario when he was released on December 19, 2022, on bail.
4. That Mr. Muchemi has been in custody without having a bail hearing for 360 days (5 days less than a year) and is likely in a time served position as conceded by the Crown during closing submissions.
5. Some of the charges he is facing stem from a lack of housing.

[31] In R. v. Braun, [1994] S.J. No. 312 at paragraph 10 the Court said that:

The public safety component of s. 515(10)(b) provides that pre-trial detention is necessary “for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice”. The likelihood that an individual will commit a criminal offence does not, however, in itself provide just cause for detention of the accused.

[32] In Mr. Muchemi’s case the charges that he is facing are only allegations. He has never been convicted of an offence and he is entitled to the presumption of innocence pursuant to s. 11(d) of the Charter, which are fundamental criteria when determining whether and accused is releasable: See R. v. Lich, 2022 ONSC 4390 at paragraph 119. Further Mr. Muchemi is not alleged to have tried to interfere with the administration of justice and is not alleged to have breached the conditions of the release order made by the OCJ in Brampton, Ontario.

[33] The Crown based their concern on the secondary as detention being in the public interest even though as they conceded Mr. Muchemi was likely in a time served position. The problem with the Crown’s argument is threefold. First, public interest has not been defined by the Courts and is “incapable of framing the legal debate in any meaningful manner or structuring discretion in any way”: See Morales at paragraph 24. Second, “the criterion of “public interest” as a basis for pre-trial detention under s. 515(10)(b) violates s. 11(e) of the Charter because it authorizes detention in terms which are vague and imprecise” See Morales at paragraph 15. Third, “In general, our society does not countenance preventive detention of individuals simply because they have a proclivity to commit crime”: See Morales at paragraph 37.

[34] Some of Mr. Muchemi’s charges stem from being homeless. This fact together with the fact that he is a landed immigrant from Kenya who was rendered homeless because of the instability of his father who he was supposed to live after he arrived in Canada land him squarely within the ambit of section 493.2 (b) CCC. As the Court said in R v. AA, 2022 ONSC 4310 at paragraph 50:

[50] The section was placed by Parliament at the beginning of the bail release sections in Part XVI of the Code. It must be given effect whenever a vulnerable, overrepresented accused is before the court for bail. Not to do so would constitute an error of law in circumstances where it could potentially make a difference to the decision: St. Cloud at paras. 121, 139.

[35] Detaining Mr. Muchemi would not give effect to s. 493.2 (b) CCC. It would not because if the public were to learn that Mr. Muchemi were detained despite the following:

1. having potential mental health issues that his counsel proposed be dealt with my having him attend for a scheduled mental health assessment 5 days after his bail hearing.
2. his homelessness issue being resolved by way of a released to stay at the Gershwin Centre in Toronto in a crisis bed for 4 to 5 days, which comes with an imposed curfew of 9 p.m. – 6 p.m., where he would receive assistance with getting a 30-day mental health justice bed the Centre for Addiction and Mental Health (“CAMH”).
3. he has not been charged with breaching the bail order he was released pursuant to on December 19, 2022, from the Ontario Court of Justice in Brampton, Ontario; and
4. if he plead guilty the day after his bail hearing he would, as both Crown and defence counsel agreed, mostly likely be in a time served position that would allow him to walk free from the Courthouse the same day with only a probation order to follow.

a reasonably informed member of the public would lose confidence in the administration of justice. Releasing Mr. Muchemi on the other hand would increase the public confidence in the administration of justice: See R v. Ng, 2021 ONSC 1398 at paragraph 44. It would because releasing Mr. Muchemi would reassure a reasonable member of the public that if they were arrested and detained for a bail hearing the Court protect their 7 Charter rights and not unnecessarily deprive them of their liberty: See Ell v. Alberta, 2003 SCC 35, 2003 CSC 35 at paragraph 24. Therefore, Mr. Muchemi is releasable so long as conditions can be imposed that will bring below the level of substantially likely the risk that Mr. Muchemi will re-offend thereby endangering the public.

Conclusion

[36] Having concluded that Mr. Muchemi is releasable on the secondary grounds this Court must now determine what conditions to release Mr. Muchemi pursuant to. In this Court’s view it is not bound to impose just the conditions proposed by the accused in a release order. So long as both parties in a bail hearing have been given the opportunity to make submissions on any conditions being contemplated, the Court has the authority, pursuant to Antic at paragraph 67 (j), to impose conditions to the extent they are necessary.

[37] At the conclusion of the hearing the parties were given the opportunity to make submissions about conditions that Mr. Muchemi should be required to abide by. After counsel had time to discuss what conditions should be imposed the Court imposed the conditions agreed upon by counsel.

Released: May 29, 2024