Court File and Parties

Oshawa Court File No.: CR-20-15404 Date: 2020-04-17 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Nikeita Forbes, Applicant

Counsel: Nicholas Hegedus, for the Crown Tony Paas, for the Applicant

Heard: April 16, 2020

Reasons for Ruling on Bail Review

Leibovich J.

[1] Ms. Forbes was charged with a number of offences arising from a February 4, 2020 traffic stop where a loaded gun was found underneath the driver’s seat. The car was registered to Ms. Forbes and she was, at the time, not driving the car, but in the front passenger seat. A bail hearing was held, and the Justice of the Peace found that the applicant had failed to meet her onus with respect to any of the three grounds. The applicant has brought a bail review. Counsel contends that the Justice of the Peace made numerous errors: 1) He gave undue weight to the applicant’s prior breaches of court orders; and 2) He improperly assessed the Crown’s case as strong, which affected his determination on the secondary and tertiary grounds. In addition, the applicant states that there is a material change of circumstances due to the COVID-19 pandemic and a better release plan with a more appropriate surety. The Crown agrees that the COVID-19 pandemic is a material change in circumstances and I am entitled to make a de novo assessment. However, the Crown submits that the applicant still has not met her onus given circumstances of the offence, the applicant’s lengthy criminal record, including numerous breaches of court orders, and the poor release plan. This bail hearing was conducted, with her consent, in the absence of Ms. Forbes, via teleconference. The proposed surety testified at the bail hearing.

Facts Pertaining to the Allegations

[2] On February 4, 2020, after 10:00 p.m. the police were on patrol. The police officer saw the applicant’s car driving erratically. He pulled the car over as he was concerned that the driver was impaired. The applicant and another female were in the front. The applicant was not the driver. There were two males in the back.

[3] When the officer approached the female driver, he could smell an odour of marijuana emanating from the vehicle as he spoke to the driver. The officer began to ask some questions about whether the driver was under the influence of any alcohol or drugs. The officer believed that the driver was not impaired by alcohol but began to further investigate the odour of marijuana emanating from the vehicle.

[4] The officer called for back up. The driver was nervous and hostile. He glanced over at the applicant who said that there was marijuana beside her feet. (It was subsequently weighed at five grams.) The officer observed marijuana rolling papers on the applicant's lap. This led to a search of the car. All parties were searched under the Cannabis Act. What appeared to be rocks of cocaine were found on one male. Officers then continued to search the motor vehicle and found a firearm under the driver's seat of the vehicle. It was a Glock 23 handgun. Its serial number was removed, and it had an over-capacity magazine with 12 rounds of ammunition. The gun was loaded and cocked. The firearm was under the driver's seat, closer to the back of the driver's seat. Other suspected illegal drugs were found in the back seat.

[5] At the time of the offence, the applicant was subject to a conditional sentence that required her to maintain a curfew and be in her residence from 9 p.m.

[6] The applicant is a few months shy of her 29th birthday. She has a lengthy criminal record.

[7] On October 7, 2008, she received a sentence as a youth of six months deferred custody and 18 months probation for kidnapping, forceful confinement, uttering threats, attempt to obstruct justice, assault, fail to comply with recognizance and robbery. She was placed on a weapons prohibition order.

[8] On May 17, 2011, she received her first adult sentence. In addition to five months’ pre-sentence custody, she received a six-month sentence and two years probation for robbery and failing to comply with a weapons prohibition order.

[9] On May 15, 2012, she received a sentence of 50 days intermittent in addition to six days’ pre-sentence custody for theft and failing to comply with a probation order.

[10] On June 10, 2013, she was convicted of obstructing a peace officer and failing to comply with a recognizance and given a sentence of 15 days in addition to five days’ pre-sentence custody. On August 16, 2013, she was convicted of two counts of failing to comply with a recognizance and a probation order.

[11] On October 28, 2014, she was convicted of two counts of failing to attend court, possessing marijuana for the purposes of trafficking, failing to comply with a recognizance and failure to comply with a probation order. She was placed on another weapons prohibition order.

[12] On April 7, 2015, she was convicted of being unlawfully at large. On September 11, 2019, she was convicted of uttering a forged document and possession of property obtained by crime and placed on a six-month conditional sentence.

Reasons of the Justice of the Peace

[13] The Justice of the Peace found that the applicant had not met her onus with respect to the primary grounds. He outlined the numerous breaches of court orders and her failure to attend court in the past. He said that:

In addition, the court was told with respect to the two convictions for failing to attend court in 2014 in Cochrane, Ontario, a sister had acted as surety. So even with another family member acting as a surety, the accused has failed to come to court.

More recently, in 2015, the accused was convicted of being unlawfully at large, which is an aggravating factor in terms of the primary ground concerns.

There are also several breaches of probation convictions.

If she is found guilty of the charges she faces, Ms. Forbes faces a substantial period of penitentiary time which is a factor when considering the primary ground.

Given the accused's record and the seriousness of the charges, I am not satisfied that she has discharged her onus on the primary ground on the plan that is before the court.

[14] The Justice of the Peace found that the applicant had not met her onus with respect to the secondary grounds. He stated that the Crown’s case seemed strong at this juncture although he recognized that “ultimately, the issue of knowledge, control and possession of the firearm will be a triable issue.” He concluded that:

At a bail hearing, sureties will typically put forward the best possible picture of an accused person. Returning to the plan of supervision, while the proposed sureties evidently care for Ms. Forbes, the plan is lacking in detail both in terms of scope and execution.

Given the seriousness of the charges, the accused's record, and the amount of time that she has been in detention, the plan as put forward has little detail. What is the plan for ensuring that there are no weapons in the home where she would live? What will happen if Ms. Danchuck returns to school or work later this year? How will Ms. Forbes be brought to court?

The only unbiased evidence that the court has is the accused's record over the last 12 years, and the numerous entries and escalating behaviour.

[15] The Justice of the Peace found that the applicant had not met her onus with respect to the tertiary grounds:

Turning to the circumstances of this case, the court recognizes that at trial the evidence may unfold and evolve in ways that cannot be anticipated at the bail stage, however, at this point the prosecution’s case against Ms. Forbes is strong.

The charges are of a very serious nature. While there were no injuries or fatalities in this matter, this is not a victimless crime. It bears repeating, we have a loaded and cocked handgun with its serial number defaced, with 12 rounds of ammunition in a car at night, in the presence of drugs, under the driver's seat of the registered owner of a motor vehicle who is under a curfew and subject to two mandatory weapons prohibitions. The vehicle is driving around in a densely populated urban area.

This is not the case of an inattentively stored hunting rifle. Here we have a loaded handgun whose purpose is to injure and kill.

The public is entitled to go to bed at night without fearing that illegal guns are circulating in their neighbourhood.

The New Release Plan

[16] The pillar of the new release plan is the applicant’s friend, Mr. Ellis, who testified at the hearing. The plan is for the applicant to reside with Mr. Ellis. Mr. Ellis is a superintendent in the building that he resides. He works in the building from 8:00 a.m. to 4:30 p.m. and is on call afterwards for emergencies in the building. He has known the applicant for the past three years. They saw each other weekly in the summer. In the fall and winter, they texted often. He has been given a copy of the applicant’s criminal record when he was asked to be a surety. Prior to that he did not know anything about the applicant’s criminal history. He had never spoken about it with her. He was able to recall that the applicant was convicted of breaching her probation three times, but he did not recall the other breaches. Mr. Ellis is confident that the applicant will listen to him because she has always looked up to him and listened to him in the past.

Specific Evidence Related to the COVID-19 Pandemic and the Institutions

[17] 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 as of 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.

Law and Analysis

[18] 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:

1. Where there is admissible new evidence that if that evidence shows a material and relevant change in the circumstances of the case;
2. Where the impugned decision contains an error of law; or
3. Where the decision is clearly inappropriate.

[19] The Crown has conceded that the COVID-19 pandemic is a material change in circumstances that allows me to conduct a de novo assessment. I will address Counsel for the applicant’s arguments about the strength of the Crown’s case and the staleness of certain aspects of the applicant’s record as I address each of those grounds.

Has the applicant met her onus with respect to the primary and secondary grounds?

[20] 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]

[21] 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.

[22] Section 515(10)(a) of the Criminal Code states that the detention of an accused in custody is justified where it is necessary to ensure her attendance in court. 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] S.C.R. 509, is inapplicable to reverse onus situations; R. v. Sakhiyar, 2018 ONSC 5767, [2018] OJ No. 4999, 208 ONSC 5767. As noted by Trotter J. in The Law of Bail in Canada, at pages 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.

[23] In assessing the secondary ground, I am guided by the following helpful list of factors set out by Durno J. in R. v. Budge, [2001] O.J. No. 2538 at para. 60:

The factors to be considered on this ground include: whether the applicant has a criminal record and if so, for what offences, the sentence imposed, the date of entries. Is the applicant currently subject to any court orders? Are there outstanding charges, and if so, what are the offences? What is the nature of the current charges? What is the strength of the Crown’s evidence? Does the applicant have legitimate employment to go to? What is the plan for release? Who are the sureties? What are the amounts proposed? Are there concerns based on the accused person’s background and/or personality or as Justice Trotter puts it in his text, are there concerns about the stability of the person? Finally, whether there are concerns for interference with the administration of justice.

[24] Also, in R. v. Manasseri, 2017 ONCA 226, Watt J.A. explained when there is a reverse onus that:

…where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public

[25] In my view, the applicant has failed to meet her onus with respect to the primary and secondary grounds having regard to the following:

a) The applicant has consistently and repeatedly failed to follow court orders. She has 10 breaches for failing to follow court orders, including two failures to attend court at a time when she was supervised by a surety; b) In addition, the applicant has a conviction for being unlawfully at large; c) Given the lengthy sentence that she potentially faces upon conviction, and given her past failures to attend court, there is a real risk that the applicant will not attend her trial; d) Counsel for the applicant points to the fact that her breaches occurred earlier on in her criminal career. She has not had a breach since 2014. In my view, that argument does not really assist the applicant, since she was convicted in 2015 for being unlawfully at large. But more importantly, the current set of charges took place while the applicant was on a conditional sentence order. While her possession of the loaded firearm is clearly an area of dispute, there is no dispute that she was outside her residence and past curfew contrary to the conditional sentence order; e) There is no reason to have any confidence that the applicant will, on her own, follow any court orders; f) The applicant needs a strong surety. Mr. Ellis, while well-intentioned, is not that strong surety. Mr. Ellis was sincere in his belief that Ms. Forbes will listen to him. However, he has no real basis to be confident in that belief. The applicant has been involved in the criminal justice system since 2008. She was convicted of her most recent offence this past September. They saw each other weekly in the summer and they texted all the time in the fall and winter. Yet, Mr. Ellis had no idea about her criminal history. She never told him anything about it. Mr. Ellis was provided with a copy of the applicant’s criminal record by defence counsel. Yet, he clearly did not absorb the enormity of all her breaches. My sense of Mr. Ellis is that he really did not appreciate what he was getting into with respect to the applicant. With an applicant like Ms. Forbes, with her criminal record, more is needed than a sincere belief. There must be a rationale behind it. In addition, the release plan would have the applicant unattended while Mr. Ellis is at work, even though he works in the building. The applicant needs closer supervision; g) I agree with defence counsel that the applicant’s more serious offences of violence were a while ago and earlier in her criminal career. That is a factor in her favour, but it is a small factor given the lengthy and virtually uninterrupted length of her record. The applicant is not yet 29 and has 23 entries on her criminal record; h) I agree with defence counsel that there have been some cases and there are some instances where the COVID-19 pandemic can be a factor in assessing the primary and secondary grounds. I however agree with Monahan J.’s comments in R. v. Hastings, 2020 ONSC 2083, [2020] O.J. No. 1427 at paras. 51 and 52:

Counsel for Mr. Hastings argues that the existence of the COVID-19 pandemic is indeed relevant to both the primary and secondary grounds in this case. He argues that the threat of transmission of the virus in a provincial institution is so significant that it will provide an additional deterrent against Mr. Hastings breaching the conditions of his release.

The difficulty with this argument is that there is no evidence on the record to support it. Mr. Hastings is 24 years old and in good health. There are no cases of COVID-19 in the correctional institution where he is being detained. Nor has the court heard from Mr. Hastings as to whether his fear of contracting COVID-19 would operate as a deterrent in his case. It is therefore speculative to assume that the existence of COVID-19 would cause Mr. Hastings to alter his behaviour if he were released. In any event, even if Mr. Hastings does have such fear, it is not clear that this would cause him to comply with the terms of his release. He has previously demonstrated a willingness to evade police capture in order to avoid being returned to custody. A heightened aversion to being in custody as a result of the threat of contracting COVID-19 might well cause him to repeat such behaviour in the future. Ultimately, in the absence of any evidence from Mr. Hastings on the issue it is idle to engage in such speculation. [Emphasis added]

i) I agree with defence counsel that while the current allegations are extremely serious, it would be inaccurate to label the Crown’s case as strong. But I do not think one can say that it is weak. In concluding that the applicant has not met her onus with respect to the primary and secondary grounds, I have taken into consideration that the Crown’s case is only of average strength.

Has the applicant met her onus with respect to the tertiary ground?

[26] 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.

[27] 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.

[28] 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.

[29] The COVID-19 pandemic is a factor to consider in assessing the tertiary grounds. It is just one factor, and it does not automatically require the release of the individual; R. v. J.S., 2020 ONSC 1710; R. v. T.K., 2020 ONSC 1935; R. v. Cain, 2020 ONSC 2018; R. v. Rajan, 2020 ONSC 2118; R. v Nelson, 2020 ONSC 1728, [2020] O.J. No. 1279. 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 (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.

[30] 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.

[31] The applicant contends that her trial will be delayed because of the court shutdown resulting from the pandemic. While the court shutdown certainly cannot be considered a positive, it is too early to determine what effect it will have on the applicant’s case. The applicant was only charged at the beginning of February 2020. No trial dates have been vacated. Judicial pre-trials are still being scheduled. It is too speculative at this stage to determine that the applicant’s trial will be delayed.

[32] The applicant has no underlying health issues, and there are few cases in the provincial institutions and none in the detention center that the applicant is in. However, I am mindful of my recent comments in R. v. Johnson, 2020 ONSC 1797 at para. 27:

…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…

[33] 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, while still considering the COVID-19 pandemic, would lose confidence in the administration of justice if the applicant was released, having regard to the following:

a) The offences are serious, involving a loaded firearm found in the applicant’s car; b) While the Crown’s case is of average strength, there is no dispute that the applicant was in breach of her conditional sentence the night of the incident; c) The applicant, if convicted, is facing a significant sentence, given the offence and her record; d) The applicant was subject to two weapons prohibition orders at the time of the offence; e) The applicant has an unenviable criminal record with past convictions of violence, including two robbery convictions; and f) The applicant has breached numerous court orders. She needs a strong release plan and for the reasons mentioned earlier, the submitted plan is not strong.

[34] Counsel for the applicant referred me to Molloy J.’s comments in R. v. T.L., 2020 ONSC 1885, [2020] O.J. No. 1371 where, in assessing the tertiary ground, she stated at para. 36:

It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).

[35] As mentioned above, the analysis under s. 515(10)(c) must always have regard to all of the circumstances of the particular case. In any event, the applicant is not one of those who can, at this time, be properly supervised outside the institution.

[36] The application is dismissed.

The Honourable Justice H. Leibovich

Released: April 17, 2020

Oshawa Court File No.: CR-20-15404 Date: 2020-04-17 Ontario Superior Court of Justice Her Majesty the Queen – and – Nikeita Forbes, Applicant Reasons for Ruling Justice H. Leibovich

Released: April 17, 2020