Court File and Parties
OSHAWA COURT FILE NO.: CR-20-15406 DATE: 20200416 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DANTE JOHNSON, Applicant
Counsel: Daniella Portolese, for the Crown David Barrison, for the Applicant
HEARD: April 15, 2020
Reasons for Ruling on Bail Review
LEIBOVICH J.
[1] Mr. Johnson was arrested on December 3, 2019, a few weeks shy of his 19th birthday, for various gun and drug-related offences. He was detained on December 19, 2019, having failed to meet his onus on the second and tertiary grounds. He now brings, pursuant to s. 520 of the Criminal Code, a bail review. He asserts that there are two material changes in circumstances: 1) a new surety who is suitable to the task at hand; and 2) the COVID-19 pandemic. The Crown agrees that the COVID-19 pandemic is a change in circumstances allowing me to intervene but urges that I do not as there are no specific health concerns with respect to Mr. Johnson, and the new proposed surety, while better than the one initially proffered, is not sufficient to meet his onus with respect to the secondary and tertiary grounds. This bail hearing was conducted, with his consent, in the absence of Mr. Johnson, via teleconference. The proposed surety testified at the bail hearing.
Facts Pertaining to the Allegations
[2] The charges all stem from an incident that took place on December 3, 2019. The complainant was in his home when he heard a commotion and three men, alleged to be the applicant, his brother, and a third person, entered his home. A scuffle started between the two other accused and the complainant. The complainant originally did not want to give a statement, but he eventually did, and he initially stated he did not know the males. He then said that he knew the applicant and his brother. He stated that the applicant jumped onto the couch, pulled out a metal pistol and struck the complainant in the head. The complainant had a visible injury to the right side of his head. The complainant told the applicant to just shoot him. The applicant pointed the gun at the complainant and pulled the trigger. The complainant believed that the round was a blank.
[3] A neighbour living upstairs heard a fight in the main apartment and gunfire. A second unknown person called the police and advised that a male wearing a purple jacket and black and white jeans had a gun. That male jumped a fence into the school at 240 Simcoe Street South, the Durham Adult Alternative School. A neighbour observed four males, three black and one white, in the driveway between the houses.
[4] A police officer observed the three suspects near the Durham Adult Alternative School. The suspects began to walk quickly. The officer ordered the males to stop. The applicant’s brother and the third male stopped but the applicant ran northbound along the front of the school. Subsequent video evidence gathered by the police clearly identified the applicant as the male that was described as wearing a purple jacket. The applicant was observed on video jumping the fence onto the school property, and seen burying a handgun in the snow, covering it. He then went further along the fence line and buried a satchel in a snowbank. The satchel was discovered by the police and it contained approximately 50 grams of what is suspected to be cocaine and 8 grams of what is suspected to be fentanyl. The police did not find the gun that day. Rather, after reviewing the video they saw that the applicant had buried the gun and were able to locate it the next day. It was a 9mm P80 and it was loaded with ammunition in the chamber.
[5] The accused had a prior youth record from 2018 for theft for which he was placed on probation.
Reasons of the Justice of Peace
[6] The Justice of the Peace found that the applicant did not meet his onus with respect to the secondary and tertiary grounds. The release plan had the applicant living with his maternal grandmother. The Justice of the Peace found that she would not make a suitable surety. He said:
The plan of release put forward fails for the following reasons. It is proposed the surety reside with the grandmother, Ann Millette, who is 77 years old. She resides with Christopher Douglas at 182 St. Lucia Drive, Toronto. She advised that Dante’s mother passed away approximately 11 years ago and that his father Gary Johnson is not available to sign bail.
She explained to the court in the last six months it has been difficult to contact Dante because he keeps changing his phone number, so there has been little or no contact.
She had difficulty hearing the questions from counsel and myself. She was not forthright with the amounts that she put on her affidavit with respect to her financial status, in particular the outstanding mortgage on the house. Perhaps, she did not understand, I don’t know. She had signed bail for Dante’s brother on one occasion and he breached the bail, and she did not contact the police.
Even after the crown and I asked questions about the bail, she still did not seem to understand what her obligation as a surety was on that bail.
She advised she would put up $20,000 bail against the home that she owns with Christopher Douglas, but Mr. Douglas had no input into this, and I have no confirmation from him that he would be content to have Dante come and reside with them. She does not work and basically does not have any real income.
I believe she wants to be a surety for her grandson as she loves him and is trying to help, but even though she’s well-meaning, I am not content to approve her as a surety. I have no confidence whatsoever that she can supervise him.
If there was a strong plan of release, perhaps, the secondary grounds could be covered off, but there is not.
[7] With respect to the tertiary ground the Justice of the Peace found:
However, I must point out the photos from the video evidence were very strong pieces of evidence in this case, more particularly the photos showing Dante burying the weapon and satchel in the snow on the school property. And further, the photos are clearly showing the individuals at the aforementioned property, and also running from the property.
I must also consider the gravity of the offence and the circumstances surrounding the commission, including if a firearm was used.
This is a very concerning matter as a handgun was involved and Mr. Crooks was struck in the head with it by Dante. He ran from the scene, jumped the fence and buried the gun and the satchel containing the drugs in the snow. He tried to cover up evidence and he put the community at risk by his actions. Anyone could have found the drugs and gun.
[8] No issue is taken with the Justice of the Peace’s findings.
New Proposed Plan
[9] Counsel for the applicant concedes that the new proposed plan is essentially the same as the original plan, with one critical exception: the applicant’s paternal grandmother is now the proposed residential surety. Ms. Johnson testified at this hearing. She is 70 years old and lives with her husband and son (not the applicant’s father). She lives in a house that has approximately $400,000 in equity and is willing to pledge $20-25,000 towards her grandson’s release. She owns the house with her husband, and he is agreeable to the pledge. She does not have a criminal record or have any drugs or weapons in the house. She is retired and is able to supervise the applicant at all times. Due to the pandemic, she rarely leaves the house. She knows her responsibility as a surety and would have no hesitation calling the police if the applicant breached the terms of his bail. Prior to his arrest, she saw her grandson every month or two months. She had no idea that he might be involved in drugs or guns. She would do anything to help her grandson, but she would not lie.
Preliminary Issue
[10] On this application, the Crown filed a document, dated April 6, 2020, entitled “Response to COVID-19 Information Note.” The author is the “Institutional Services Division, Assistant Deputy Minister’s Office.” According to that Note, between March 16, 2020 and April 6, 2020, there has been a 26% reduction in the population of inmates in the province's detention centres and correctional facilities. As of that date, only four inmates in these facilities have tested positive for COVID-19, although test results are still outstanding for 17 other inmates. Two of the positive cases are inmates at Toronto South Detention Centre, one was a person who was not in custody, but was on an intermittent sentence, and the fourth was at the Monteith Correctional Complex. No one has tested positive at the applicant’s detention center. The Note also details the plan of action to reduce the chances of COVID-19 entering into the province's detention centres and correctional facilities. Defence counsel did not object to the evidence.
[11] Defence counsel sought to tender an affidavit from Dr. Orkin, an epidemiologist, on COVID-19 and its possible effects on the prison population. The Crown objected to the admissibility of the evidence on the basis that it failed to meet the Mohan criteria for admissibility and the evidence is not necessary or helpful. Crown counsel also raised concerns that Dr. Orkin may have inappropriately veered into the role of advocate for the prison population, raising bias concerns. Defence counsel submitted that he was not seeking to qualify Dr. Orkin as an expert but merely sought to tender the evidence as trustworthy and credible pursuant to s. 518(1)(e) of the Criminal Code. He submitted that the evidence is necessary to balance the information provided to the court on this issue by the Crown. I agree that the evidence is appropriately admissible pursuant to s. 518(1)(e). Any defects go to weight. In addition, it would seem untoward to allow the Crown evidence on this point, which is not in affidavit form, to be admitted, but not the sworn evidence of a clearly qualified epidemiologist. I also note that this evidence was admitted recently in R. v. Williams, 2020 ONSC 2237.
[12] Dr. Aaron Orkin is a physician and epidemiologist. With respect to COVID-19 and the inmate population, Dr. Orkin stated in his affidavit that:
a) The central strategy for the population health management of COVID-19 is to “flatten the curve” to reduce the risk of the health care system being overloaded;
b) The key measure for flattening the curve is social distancing. There is no substitute for social distancing;
c) Two meters of physical distance between people is considered an absolute minimum for appropriate social distancing to reduce COVID-19 transmission. However, that distance has not been subject to study for long-term exposure (such as sleeping arrangements). It does not refer to vertical separation (such as on bunk beds, where droplets can fall on a person sleeping on a lower bunk).
d) Preventing outbreaks in congregate living facilities is a top priority to flatten the curve for four reasons:
(1) Outbreaks in tight spaces happen extremely quickly and are near impossible to control once they occur.
(2) People living in congregate living facilities tend to have underlying health conditions that make them more prone to serious adverse outcomes from COVID-19. This is true in long-term care facilities, homeless shelters, and prisons.
(3) Outbreaks in congregate living facilities can overwhelm healthcare systems.
(4) Outbreaks in congregate living facilities serve as fuel for the fire in more generalized outbreaks. Unlike cruise ships, people in congregate living settings, including the staff who work there, transfer disease into the wider community.
Therefore, preventing infection in congregate living facilities is critical for flattening the curve across the entire population.
e) It is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada, and therefore extremely likely that almost all inmates in these settings will face exposure in one way or another. The only available method to substantially reduce the resulting infections and deaths is, therefore, to reduce the population in those settings. There simply is not enough space to create the distance required between people;
f) Every admission into custody that is prevented is an opportunity and every person released from a correctional facility to a private residence aids in flattening the curve and improving the health for the individual; and
g) “The state of health of a particular inmate is irrelevant to my recommendations. Whether an inmate is old or young, frail or robust, in good health or suffering from pre-existing conditions, my opinion would remain the same: from a public health perspective, during the current pandemic it would always be in the best interest not only of the inmate but of the community at large to release the inmate to a less populated environment such as their own home.”
Law and Analysis
The Test for Review
[13] The Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27 set out the test that should be applied by a judge conducting a hearing pursuant to Sections 520 and 521 of the Criminal Code. The reviewing judge has only a limited ability to intervene in the decision below. The sections do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. They establish not a de novo proceeding, but a hybrid remedy. The judge must determine whether it is appropriate to exercise his or her power of review. Exercising this power will be appropriate in only three situations:
- Where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case;
- Where the impugned decision contains an error of law; or
- Where the decision is clearly inappropriate.
Has there been a material change in circumstances?
[14] The reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. The court cannot adopt too narrow a view on what is “new evidence” as to do so would undermine the interests of justice. In R. v. St-Cloud, 2015 SCC 27 the Supreme Court of Canada determined that a judge conducting a bail review should use the Palmer criteria for admitting fresh evidence in deciding whether the proposed new evidence is truly new and should be relied upon. Wagner J. stated at para. 129:
In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr. C. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr. C.
[15] The applicant submits that there are two material changes in circumstances; the new release plan and the COVID-19 pandemic. The Crown agrees that the COVID-19 pandemic is a new material change and does give me the authority to review Mr. Johnson’s detention. On that basis, I will conduct a de novo assessment. Given the concession, it is not necessary for me to decide if the new proposed surety is a material change in circumstances or simply a shuffling of the deck; R. v. Ferguson at para. 17 and R. v. King, 2020 ONSC 1935 at paras. 49-46.
Has the Applicant met his onus with respect to the secondary ground?
[16] Under s. 11(d) of the Charter, an accused is always presumed innocent until proven guilty. Per s. 11(e) of the Charter, an accused is entitled to reasonable bail and not to be denied bail without just cause. The concept of reasonable bail includes that the terms of release be reasonable and no more onerous than what is necessary in the circumstances. In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 Wagner J. (as he then was) explained why detention is not the usual or preferred course. At para. 70, he wrote:
... it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception...This entitlement rests...on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter... These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case. [Citations omitted]
[17] In R. v. Myers, 2019 SCC 18, the Supreme Court of Canada stated that “In accordance with the principles articulated in Antic, we must not lose sight of the fact that pre-trial detention is a measure of last resort.” However, pre-trial detention is sometimes necessary and appropriate. If just cause exists, reasonable bail may be denied.
[18] Section 515(10)(b) of the Criminal Code states that the detention of an accused in custody is justified where 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. Because of the nature of the charges the accused bears the onus of proof. The ladder principle as set out in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, is inapplicable to reverse onus situations; R. v. Sakhiyar, 2018 ONSC 5767. As noted by Justice Trotter, The Law of Bail in Canada, at page 6-9 (2017 -- Rel.2):
The ladder principle is inapplicable to situations in which a reverse onus provision in s. 515(6) is triggered. When this subsection was enacted in 1976, Parliament made no attempt to reconcile the reverse onus provisions with s. 515(3). It follows that when the onus is on the accused, he or she ought to be required to justify why the most onerous form of release should not be imposed. This may well be the reality in practice.
[19] The applicant has now proposed his paternal grandmother as a surety. She has the means to pledge a healthy amount of money on behalf of her grandson. More importantly, she has the means to monitor him as she is retired and does not appear to have any commitments. Counsel for the applicant states that the existence of the pandemic helps support the secondary concerns as everyone is staying home thus allowing for the monitoring of the applicant all the time. I understand counsel’s point, but in my view, the pandemic is a neutral factor as the applicant’s estimated trial date is quite far down the road and, presumably, physical distancing rules will be relaxed at some point in the next few months.
[20] The proposed surety has none of the defects that the Justice of the Peace properly found with respect to the applicant’s other grandmother. I accept Ms. Johnson’s testimony that she would turn her grandson into the police if he breaches the rules. I also accept that she understands the seriousness of her role. In addition, the applicant has a minor, unrelated youth record and has no history of disobeying court orders. I note that the Justice of the Peace found that the secondary concerns could be addressed through a strong release plan. I am satisfied that the applicant, with the imposition of very strict conditions, can meet his onus in demonstrating that his detention is “not necessary for the protection of the public but also that it is not necessary for the safety of the public.”; R. v. Manasseri, 2017 ONCA 100, Watt J.A. at paras. 86-88.
Has the Applicant met his onus with respect to the tertiary ground?
[21] Section 515(10)(c) of the Criminal Code states that detention of an accused in custody is justified if it is necessary to maintain confidence in the administration of justice. With respect to s. 515(10)(c) guidance was provided by the Supreme Court of Canada in R. v. St-Cloud. The principles are summarized below:
a. S. 515(10)(c) is a distinct ground that, in itself, provides a basis to order pre-trial detention of an accused. In other words, the tertiary ground is not a residual ground that only comes into play where the first two grounds of detention do not apply. The application of this ground is not limited to exceptional circumstances, to unexplained or inexplicable crimes, to the most heinous crimes or to certain categories of offence.
b. When deciding whether to apply s. 515(10)(c), the court should instead consider all the circumstances of the particular case before it, paying particular attention to the four enumerated circumstances in s. 515(10)(c): (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, to a potentially lengthy term of imprisonment.
c. The four circumstances are not exhaustive, and no single circumstance is determinative. The court must balance all relevant circumstances.
d. The court must not order detention automatically even where the four listed circumstances support such a result. At the end of the balancing exercise, the question that is to be asked by the court is whether detention is necessary to maintain public confidence in the administration of justice.
[22] The nature of the proposed release plan is not just relevant to the primary and secondary grounds, but also to the tertiary ground; R. v. Rashad, 2017 ONSC 7580 at para. 18.
[23] To answer this question, the court must adopt the perspective of a reasonable person, who, while not a legal expert, is properly informed of the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.
[24] The COVID-19 pandemic is a factor to consider in assessing the tertiary grounds. It is just one factor, and it does automatically require the release of the individual; R. v. J.S., 2020 ONSC 1710; R. v. King, 2020 ONSC 1935; R. v. Cain, 2020 ONSC 2018; R. v. Rajan, 2020 ONSC 2118; R. v. Nelson, 2020 ONSC 1728. As stated by Harvison-Young J.A. in R. v. Kazman, 2020 ONCA 251 at paras 17-20:
Further, the applicant’s health conditions, which were well documented in the record before the court, as well as his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19. It is necessary for him to practice social distancing to lower the risk of contracting COVID-19. Being in jail will make it difficult, if not impossible, to practice such social distancing.
As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.
For these reasons, and in light of all of these factors together, the applicant’s release for a limited period would not undermine a reasonable and informed person’s confidence in the administration of justice.
I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue. In R. v. Morgan, 2020 ONCA 249 (31 March 2020), Toronto, M51470 (C67536) (Ont. C.A.), bail pending appeal was denied due to the applicant’s risk of reoffending and the inadequacy of his sureties to supervise against further offending.
[25] The analysis under s. 515(10)(c) must always have regard to all of the circumstances of the particular case; R. v. Williams at paras 135-138.
[26] Counsel for the applicant concedes that the factors enumerated in R. v. St-Cloud point towards the applicant’s detention. They do. This was a serious offence involving the toxic combination of drugs and a loaded firearm. The Crown’s case of what happened inside the complainant’s residence does depend on the complainant, who did not want to give a statement and initially denied knowing his assailants. However, the discharge of a gun was heard by a neighbour. More critically, the applicant’s placement at the scene is confirmed by other sources including video evidence. Most importantly, the applicant is captured on video burying a gun and his bag. The bag was found. It contained cocaine and fentanyl. The gun was found, and it was loaded with a bullet in the chamber. I agree with the Justice of the Peace that the applicant compounded the danger of the situation by burying these items at a nearby school. He is liable to receive a significant sentence if convicted, although the sentencing judge will have to also consider his youth, that these are his first adult charges, and the one youth offence is unrelated.
[27] The applicant is young. He has no underlying health conditions that make him more vulnerable to COVID-19. There have been no COVID-19 cases in the institution in which he is being held and very few cases in the provincial institutions. The efforts to reduce the risk in the institutions to date has been commendable. Dr. Orkin’s evidence is helpful as it is a useful reminder that given the nature of the pandemic, despite the current efforts and the absence of current cases, one cannot be complacent. Widespread cases in our jails would jeopardize the inmates and the rest of the population. Dr. Orkin’s opinion that even though it has not happened so far it is extremely likely that the pandemic will arrive in the jails is concerning although I find it difficult to understand how Dr. Orkin could be so certain. The projections in the material filed (set out in Exhibit B to Dr. Orkin’s affidavit) vary widely.
[28] In my view, a reasonable member of the public properly informed of the philosophy of the legislative provisions, Charter values and the actual circumstances of the case would not lose confidence in the administration of justice if Mr. Johnson was released despite the seriousness of the offences, the use of a firearm and the strength of the Crown’s case having regard to the accused’s youth, the fact that these are his first adult charges, the absence of any related prior offences, youth or otherwise, the absence of any history of disobeying court orders and a release plan that would have him with his residential surety all the time and not allow him to be outside of his residence except in very minor circumstances.
[29] The Crown properly conceded that the COVID-19 was a material change in circumstances that allowed me to review Mr. Johnson’s detention. However, at the end of the day it was the change in sureties that allowed me to find that Mr. Johnson had met his onus with respect to the secondary and tertiary grounds.
[30] Therefore, I order that the applicant can be released with the following surety: Bobsie Johnson, without deposit, in the amount of $25,000. And with the following conditions:
a) Reside at 48 Dominy Drive in Ajax, Ontario; b) Always be in the presence of his surety, whether at 48 Dominy Drive or outside of that residence; c) Do not leave his residence, except in the presence of his surety and for the following reasons: i. To attend court; ii. To meet with counsel in preparation for his defence; and iii. For a medical emergency. d) Present yourself at the door of 48 Dominy Drive in Ajax, Ontario when requested to do so by the police; e) Do not have contact with his co-accused, the complainant or any witness in this case; f) Remain 200 metres away from any known place of residence, place of education, place of worship, place of employment or any other place that those individuals are known to be; g) Do not possess nor use any non-prescription drugs; h) Do not use or possess any alcohol; i) Do not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition, or explosive substance, or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person); and j) Be amenable to the rules of the house.