Court File and Parties
COURT FILE NO.: CR-19-4560-00BR DATE: 20200323 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen AND: Nathaniel Nelson
BEFORE: Justice M.L. Edwards
COUNSEL: Mr. Vanden-Ende – Counsel, for the Crown Mr. D. Sarikaya – Counsel, for Mr. Nelson
HEARD: March 18 & 20, 2020
Endorsement
[1] Mr. Nelson is charged with several offences that are related to a robbery at a local jewellery store on December 30, 2018, as well as several offences that relate to the trafficking of a loaded firearm that is alleged to have occurred on May 28, 2019. Initially, Mr. Nelson was released on bail. As a result of a bail review that came before Leibovich J. on September 18, 2019, Mr. Nelson’s earlier release order was vacated, and he was ordered to be detained in custody.
[2] The material change in circumstances that underlies this bail review is the health crisis we are all facing in the form of the COVID-19 virus (“the virus”). While there is a new plan for release that incorporates electronic monitoring, it was conceded by counsel for Mr. Nelson that the real issue this court must confront is whether Mr. Nelson should be released on bail because of the heightened health risk he faces given his present circumstances as an incarcerated person at the Central East Correctional Centre (“the jail”).
The Process
[3] When this matter initially came before me on March 18, 2020, the Superior Court of Justice was no longer sitting as a court at the courthouse in Newmarket (or anywhere else in Ontario). The judges of the Superior Court were available to deal with urgent/emergency matters by conference call. An initial conference call took place between counsel and myself on March 18, 2020. This call took place in the absence of Mr. Nelson. Both counsel for Mr. Nelson and Crown counsel agreed that pursuant to s. 520(3) of the Criminal Code of Canada, they could proceed in the absence of Mr. Nelson.
[4] Crown counsel quite properly raised concerns about how a bail review involving unsworn affidavits should be conducted by conference call. After some discussion, it was agreed the review would be adjourned for a few days to allow the sureties to be available at the office of Mr. Nelson’s lawyer for cross-examination. It was also agreed that I would issue a judge’s order requiring the jail to make Mr. Nelson available to be cross-examined by conference call.
[5] Ultimately, the review resumed on March 20, 2020 by conference call. Crown counsel decided he did not need to cross-examine any of the deponents of the affidavits before the court. Had cross-examination been necessary, I would have directed that Mr. Nelson had the right to remain on the conference call at all times. The sureties would have been cross-examined in the presence of defence counsel. As an officer of the court, I would have directed Mr. Sarikaya to ensure the witness remained in his presence and was not prompted or influenced in any way as he or she gave their evidence. In other words, counsel would have been responsible to ensure to the best of his ability the integrity of the court process. In these difficult times, we have to rely on the integrity of everyone associated with the administration of justice to ensure that the wheels of justice do not grind to a complete halt.
Mr. Nelson’s Background
[6] Mr. Nelson is 27 years of age. He has one daughter who is 8 months of age. The mother of his daughter is a co-accused on the firearms charges that Mr. Nelson also faces.
[7] Despite his relatively young age, Mr. Nelson has an unenviable criminal record which includes convictions for the following offences: Robbery (January 2011); Fail to Comply with a Probation Order (September 2011); Robbery, Disguise with Intent to Commit an Indictable Offence and Use of Imitation Firearm (June 2013); Robbery (October 2014); Robbery x3, Fail to Comply with Probation x2 (April 2017). Mr. Nelson was sentenced to varying periods of incarceration and weapons prohibition orders for these various offences.
[8] When Mr. Nelson was released from jail after his last conviction in 2017, he was on parole and supervised by an ankle monitor. There is no evidence he violated his parole conditions. Between September 2017, when he was released on parole, and the time of the offences now before this court, Mr. Nelson was employed in various jobs. He lived with his mother in an apartment in Toronto.
[9] There is no medical evidence from Mr. Nelson that he suffers from any medical condition that may render him more susceptible to the virus.
The Proposed Plan of Release
[10] If Mr. Nelson was released on bail, it is proposed that he be on a very strict house arrest living at the residence of his aunt and uncle in a rural area near Angus, Ontario. Mr. Nelson would not be allowed to possess a cell phone, nor would he be allowed to have any family or friends to his aunt’s home without the approval of his sureties. The proposed sureties are his aunt and uncle. Mr. Nelson’s uncle, unfortunately, will have a limited means to supervise his nephew, as he is presently undergoing treatment for cancer.
[11] An integral part of the plan of release involves electronic monitoring using the resources of the Recovery Science Corporation (“RSC”). Mr. Stephen Tan, who is the Director of Operations of RSC, participated in the conference call. He was available for cross-examination. Neither counsel asked him questions. I asked two questions. The first related to what backup RSC had in place in the event that those who might become responsible for monitoring Mr. Nelson’s ankle bracelet became ill with the virus. The second question related to the ease with which an ankle bracelet can be removed and how long it would take for RSC to notify the police that Mr. Nelson had removed his bracelet.
[12] Mr. Tan was entirely candid as it relates to the second question. He readily acknowledged that an ankle bracelet is easily cut off and that there would be a delay of two to six minutes between the time the bracelet was cut off and when the police would be notified. As for the concern about staff becoming ill and thus not being able to monitor Mr. Nelson, I was satisfied that RSC had a system in place to address those concerns.
Position of the Defence
[13] In a refreshing degree of candour, Mr. Sarikaya conceded that but for the virus, he fully recognized that the new plan of release was not one that had much, if any, chance of success. Mr. Sarikaya concentrated his submissions on the undeniable media attention and government response to the virus. In essence, Mr. Sarikaya argues that as an accused who is presumed innocent of the charges he presently faces, he should not be subject to the heightened risk of contracting the virus – a risk that is heightened because of the conditions that exist in a prison environment.
Position of the Crown
[14] As it relates to the proposed plan of release, Mr. Vanden-Ende argues that apart from the electronic monitoring, the plan is little more than a rehash of an old plan that was found to be deficient in the Reasons of Leibovich J. While electronic monitoring does provide some degree of comfort, Mr. Vanden-Ende referred the court to several decided cases where the point is clearly made that electronic monitoring only monitors the whereabouts of an accused, it does not supervise the accused. Given the fact that both proposed sureties would not be able to constantly supervise Mr. Nelson, Mr. Vanden-Ende expressed real concerns with the effectiveness of the proposed plan of release.
[15] Mr. Vanden-Ende also expressed real concerns that the release of someone on bail who is being electronically monitored will place an undue burden on the York Regional Police (“the YRP”). Members of the YRP are no different from other members of society. Like everyone else, they run the risk of contracting the virus. Some may say - probably quite correctly - that as an essential service, the YRP will inevitably be at a greater risk of contracting the virus given their daily exposure to members of the public.
[16] To require the YRP to add to their list of responsibilities the possible need to respond to an alarm from RSC would, from the perspective of the Crown, only add to the strain that police officers are working under given the present health crisis.
The Legal Principles
[17] As Leibovich J. made clear in his Reasons, the reviewing judge has only a limited ability to intervene in a prior decision either granting or denying bail. As a reviewing judge, I do not have open-ended discretion to vary the initial decision concerning the detention or release of an accused. The discretion that I do have should only be exercised in three possible scenarios: a) where there is admissible new evidence that demonstrates a material and relevant change in the circumstances of the case; b) where the impugned decision contains an error of law; and c) where the decision is clearly inappropriate.
[18] Over the last three or four years, it has become clear from several decisions from the Supreme Court of Canada that bail should only be denied to an accused person in a “narrow set of circumstances”, and only “when necessary to promote the proper functioning of the bail system”: see, R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 50. Judges at all levels dealing with matters involving bail are reminded by Antic and R. v. Myers, 2019 SCC 18, that incarceration pending a trial is not and never should be the norm. We must always remind ourselves, despite the clarion call in the media and public at large for judges to get tough on crime, that an accused - regardless of the charges before the court - is always deemed innocent until proven guilty, and that the right not to be denied unreasonable bail is a fundamental right not to be treated lightly.
[19] As it relates to the secondary ground, s. 515(10)(b) of the Criminal Code of Canada provides that pre-trial detention will be justified when it is:
…necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.
[20] It would be stating the obvious to say that where an accused faces charges that relate to the involvement of firearms and robbery, should an accused charged with such serious offences be released on bail, there exists very realistic and obvious concerns about public safety and the protection of the public. However, as Dawe J. in R. v. Aden, 2019 ONSC 2043, 2019 O.J. No. 2439, noted at para. 21:
…the relevant question is not whether these concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all the relevant factors.
[21] Dawe J. goes on in Aden, at para. 24, to frame the critical question as it relates to the secondary ground as follows:
The critical question, in my view, is whether the Applicant’s proposed release plan is sufficient to allay the concerns about public safety and the protection of the public that would be presented by the Applicant’s release on bail…
[22] As it relates to the tertiary ground, it is worth repeating that s. 515(10)(c) of the Criminal Code, which provides that an accused may be detained prior to trial when doing so is necessary to maintain confidence in the administration of justice having regard to all of the circumstances, including:
i. the apparent strength of the prosecution’s case, ii. the gravity of the offence, iii. the circumstances surrounding the commission of the offence, including whether a firearm was used, and iv. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[23] The charges that Mr. Nelson faces are, in my view, serious offences that include a firearm, and if he was convicted Mr. Nelson would most likely face a significant period of imprisonment. As such, as it relates to the tertiary ground, it could be argued that the balance favours his continued detention.
[24] A finding that three of the four factors may favour detention does not, however, automatically lead to the conclusion that detention should be the automatic result. To arrive at such a result disregards the fact that the court is required to apply a test under s. 515(10)(c), which is whether the detention of the accused is “necessary to maintain confidence in the administration of justice”.
[25] The Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, states at para. 69:
…The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination.
[26] I have considered three of the four components that I am required to consider under s. 515(10)(c). The fourth factor I am required to consider is the apparent strength of the Crown’s case. In that regard, a review of the Reasons of Leibovich J. makes very clear that the Crown’s case against Mr. Nelson is a “very strong case with respect to both the robbery and the firearms trafficking charges supported by video surveillance, intercepts, and forensic evidence” (para. 21(a) of his Reasons). None of these conclusions were argued to the contrary in Mr. Sarikaya’s submissions to me.
[27] The Supreme Court of Canada in St-Cloud made clear that just cause to deny bail should only occur if the denial falls within a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system. The Supreme Court of Canada has also made it abundantly clear to judges determining whether to deny bail, that one of the primary principles must be that an accused is constitutionally presumed innocent with a constitutional right to bail.
Analysis
[28] In his Reasons, Leibovich J. determined that Mr. Nelson had failed to meet his onus as it relates to the secondary ground. Mr. Nelson took no issue with this finding in the argument before me.
[29] In his Reasons, Leibovich J. also determined that Mr. Nelson had failed to meet his onus as it relates to the tertiary ground. Mr. Nelson took no issue with this finding in the argument before me.
[30] There does not appear to have been any argument as to the primary ground which would require Mr. Nelson’s continued detention to ensure his attendance in court. If that had been an issue argued before me, I would have considered the fact Mr. Nelson was out of custody at the time Leibovich J. rendered his decision, and that he was then required to surrender into custody within a day of the release of Leibovich’s Reasons. The fact that Mr. Nelson is now in custody demonstrates that he complied with the Order of Leibovich J. and, as such, in my view there is no issue with respect to the primary ground for detention.
[31] As there was no argument that would warrant revisiting the conclusions reached by Leibovich J. as it relates to both the secondary and tertiary grounds, I intend to limit my analysis to whether Mr. Nelson’s detention should continue given his risk of contracting the virus while incarcerated at the jail.
[32] Anyone who is in jail awaiting his or her trial, regardless of the fact they are in jail, is still presumed innocent until their guilt has been proven beyond a reasonable doubt. Those same persons have a fundamental right under The Canadian Charter of Rights and Freedoms (“The Charter”) not to be denied reasonable bail without just cause. In this case, Mr. Nelson has been denied bail and the reasons for such denial are amply set forth in the Reasons of Leibovich J.
[33] The decision of Leibovich J. does not end this court’s analysis. The tertiary ground requires this court to consider all of the circumstances in its determination of whether the detention of Mr. Nelson is necessary to maintain confidence in the administration of justice: see St-Cloud, at paras. 66-71. Amongst the considerations that the court may take into account are the physical and mental condition of Mr. Nelson. In his affidavit, Mr. Nelson does not specifically address any physical or mental health issues attributable to his continued detention in jail and how the virus may play out in those surroundings.
[34] While Mr. Nelson may not have focused his affidavit on any specific health issues, I accept the submissions of Mr. Sarikaya that this court can take judicial notice of the virus and the health emergency that we are all presently living under. I also agree with the comments of Copeland J. in her recently released decision R. v. J.S., 2020 ONSC 1710, at para. 18, where she stated, “[i]n my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.”
[35] I suspect that as this virus worsens, we may see many more applications for bail. While Mr. Nelson did not specifically address any physical or mental health issues posed by the virus and his continued detention, it will be important that future applications proceed with the benefit of at least some rudimentary evidence that could suggest an accused is more susceptible to contract the virus due to underlying health issues. I take judicial notice from everything available via the media and the internet, that younger persons are said to be much less likely to experience the virus in its most severe form. I also take judicial notice that there are some media reports that even younger persons may become ill with the virus. On balance, the information that is available to everyone would suggest older members of society are the ones most susceptible to the virus in its most serious form.
[36] An incarcerated person who is advancing in age and who has underlying health issues will almost, without doubt be at a greater health risk of contracting the virus, with possible serious ramifications. In these circumstances, the tertiary ground may require the reviewing court to consider whether confidence in the administration of justice dictates that confidence may be lost if those who are at greatest risk remain in custody. That will, however, be for another reviewing justice to decide.
[37] Persons who are presently incarcerated awaiting their trials will inevitably have their trials postponed due to the present health crisis. This is also a relevant consideration in the application of the tertiary ground. At the present time, Mr. Nelson’s firearms charges are fixed for trial in November of this year for eight days. His robbery charges are to proceed to a preliminary hearing in July and August of this year. No one can predict with any certainty how long the present health crisis will last and the impact it will have on both the Ontario Court of Justice and the Superior Court of Justice. That said, it would be naïve to think that it will be “business as usual” when we all return to our so-called normal judicial duties.
[38] Given the inherent uncertainty this health crisis has generated in our judicial system, the public and everyone associated with the administration of justice need to be reassured that while this court may not be physically open, the Rule of Law will still prevail. The fact that this bail review was able to proceed, albeit in a manner not entirely consistent with how a bail review would normally be held, demonstrates that an accused like Mr. Nelson can still seek an order that would release him from jail. As the days and possible weeks go by, I am sure there will be many more instances where the court will be called upon to reassure everyone that our judicial system can and will adopt to the times and circumstances as they present themselves.
[39] I am more than satisfied that the prevailing health crisis required this court to consider whether Mr. Nelson should be released from custody into house arrest. As I said to counsel during our conference call, the real issue is where the court should draw the line. At one extreme we simply keep everyone who is already locked up pending their trial locked up. At the other extreme we release everyone for fear their continued incarceration would be little different from being a passenger on a cruise ship, albeit a cruise ship behind bars. Neither extreme, in my view, is appropriate. Confidence in the administration of justice would rapidly be lost if either extreme was considered appropriate.
[40] In the result I accept that Mr. Nelson, like everyone who is incarcerated at the present time, falls within a category of persons who are at heightened risk of contracting the virus. This is a truly regrettable fact given the admonition we are all living under – to practice social distancing. The fact someone is behind bars, often living in a cell where there is double and triple bunking, amply demonstrates how life behind bars is not conducive to social distancing.
[41] Mr. Nelson, while at a heightened risk of contracting the virus, nonetheless is relatively young. There is no evidence his pre-existing physical or mental health puts him into a category of persons that contracting the virus could result in severe health issues or even death. I do not take lightly my decision to dismiss Mr. Nelson’s application. Mr. Nelson previously did not meet his onus on the secondary and tertiary grounds for release (as per the Reasons of Leibovich J.).
[42] This is a case where given the seriousness of the charges; Mr. Nelson’s prior criminal record, the weakness of the proposed plan of release, and the absence of medical evidence demonstrating that Mr. Nelson may be more susceptible to contracting the virus and/or a heightened risk of symptomology, I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail. The application is dismissed.
Justice M.L. Edwards