Court File and Parties
Court File No.: CR-20-10000018-00SR Date: 2020-03-31 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Janson Jeyakanthan, Defendant/Applicant
Counsel: Alan Spiegel, for the Crown Kim Schofield, for the Defendant/Applicant
Heard: March 27 and 31, 2020
Before: McWatt J.
Subject: Bail Review Application
[1] Janson Jeyakanthan, (“the applicant”), applies for a bail review pursuant to section 520(1) of the Criminal Code and asks for an Order vacating his detention previously ordered by Her Worship Justice of the Peace L. Kirke.
[2] The Crown opposes the application.
Summary of the Allegations and Bail Hearing
Milton Charges
[3] On July 6, 2018, Halton Police Mobile Surveillance and Tactical Rescue Unit officers were watching a male who was wanted for firearm offences in Halton. The wanted male was identified as Tharshan Balasingham, who was observed walking with two unknown males towards a vehicle in the parking lot of the Square One Mall in Mississauga, Ontario.
[4] Shortly before, the police had observed the three males seated at a table inside a restaurant. The males entered a Dodge Durango and members of the Halton Police surrounded the vehicle and, at gun point, detained and searched all three parties. Janson Jeyakanthan was one of the males in the company of the wanted party. He was located in the rear passenger area of the vehicle.
[5] The applicant was removed from the vehicle, taken to the ground and handcuffed. He was searched and a loaded .40 caliber Smith and Wesson handgun was found concealed in the front waistband of his pants. It is alleged that the firearm was stolen.
[6] The applicant was charged with a series of firearm related offences in relation to this incident.
[7] Following a contested bail hearing, the applicant was released on July 9, 2018 and was subject to a house arrest bail. He was released to his father, Jeyakanthan Vadivelu on a $20,000 recognizance. He was ordered to reside with his sureties at 65 Gorevale Drive in Brampton. The applicant was later charged with breaching this release by being out of his residence on September 8, 2019, (the “Toronto charges”). The Crown now wishes to have the applicant’s father forfeit the $20,000. The applicant was supervised, pursuant to this release, by not only his father, but also his mother and his 25-year-old sister.
[8] The applicant has no convictions.
Domestic Charges
[9] However, on November 17, 2018, the applicant was charged with one count of assault. He was in a car with his girlfriend. During a dispute, the applicant pulled the victim’s hair, put his fingers in her eye and slapped and punched her in the face. He was held for bail and released on November 20, 2018. This time to his father and his mother, Kamalatchi Jeyakanthan, in the amount of $10,000. He was ordered to reside with the sureties at 65 Gorevale Drive in Brampton. The charge was later withdrawn on the applicant’s signing a peace bond on September 6, 2019.
Toronto Charges
[10] Two days later, on September 8, 2019, at 4:05 a.m., Leighton Edwards attended the McDonald’s restaurant, located at 160 Spadina Avenue. While waiting for his food and speaking with an unknown male, Jayson Jeyakanthan and his brother, the applicant, entered the restaurant. Jayson approached Mr. Edwards and the unknown male and asked them what they were looking at. Mr. Edwards advised, “We aren’t looking at you.” Jayson allegedly responded with, “Do you know who I am?” Mr. Edwards indicated, “No”.
[11] Jayson lifted up his sweater and showed Mr. Edwards the butt end of a black handgun that was tucked into his front waistband. Fearing for his life, Mr. Edwards reached out to prevent himself from being shot. While the men struggled, the applicant punched Mr. Edwards on the right side of his face, causing him to fall.
[12] Mr. Edwards fled and called 9-1-1. The police attended and observed Jayson and the applicant walking into an alleyway. Police heard the sound of metal on pavement. The two males were then detained. After a search of the alleyway, two loaded handguns were located under a parked vehicle. The firearms were a Glock 9-millimeter WMA 13, and a Smith and Wesson 9-millimeter Luger Blazer.
[13] After a search, a quantity of MDMA was located inside the applicant’s black satchel.
Bail Hearing
[14] A joint bail hearing was held for the brothers.
[15] The Crown applied for and was granted an Order cancelling the applicant’s Milton bail. The new bail hearing was held for both sets of charges.
[16] The applicant’s mother, Kamalatchi Jeyakanthan, and sister, Jeniha Jeyakanthan, were proposed as sureties. The proposed plan included a house arrest bail which would have had the applicant reside at 65 Gorevale Road – the same address he was ordered to reside at for his Milton release and from which he left in order to attend Toronto the night of the third set of charges.
[17] On November 14, 2019, the applicant was detained on the secondary and tertiary grounds. The Justice of the Peace found that the proposed sureties were not suitable because they could not supervise the applicant. The Justice of the Peace found that electronic monitoring was only a strength in the plan of supervision if the sureties were able to successfully supervise Mr. Jeyakanthan. I agree.
Grounds for This Review
Material Change in Circumstances
[18] The applicant alleges that there are two material changes since the order of detention was made. First, the proposed plan of release here is entirely different from that submitted to the Justice of the Peace. The proposed plan includes a house arrest term along with a hard curfew which would prohibit the applicant from leaving his residence between the hours of 10:00 p.m. and 6:00 a.m., even in the company of a surety.
[19] The applicant’s Uncle and Aunt are prepared to act as residential sureties and are prepared to pledge whatever the Court orders. They have a combined equity in their home of approximately $460,000 and can pledge significantly more than the applicant’s mother and sister.
[20] The applicant’s Uncle was found by Justice of the Peace Kirke as a suitable surety for Jayson Jeyakanthan, and signed a $50,000 bond for Jayson’s release. The uncle has now been replaced by another surety for the applicant’s brother and he is now free to supervise the applicant instead. While he supervised the applicant’s brother, Jayson did not breach the bail.
[21] The applicant contends that the proposed plan sufficiently addresses concerns with respect to the secondary and tertiary grounds.
[22] He also contends that the proposed plan is further strengthened by the inclusion of the GPS monitoring.
[23] The second ground of the application is quoted from the materials filed as “the prevalence of COVID-19 in society at large, but also, more importantly within the jail population is significantly concerning, and amounts to an additional material change of circumstances. Furthermore, the prevalence of COVID-19 within the jails must be considered by the Court under the secondary and tertiary ground, in conjunction with the applicant’s strong plan of release, necessitating release of the applicant from custody.”
Legal Principles
[24] A finding that there is a material change of circumstance, in any case, must be made after considering all the relevant evidence. The question is whether a material change exists after reviewing the “actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material.” (R. v. White, 2014 ONCA 268 at paras. 25-26).
[25] There must be, at this hearing, a material change in circumstances from those that existed at the time of the original application (R. v. Baltovich (2000), 144 C.C.C. (2d) at paras. 3, 6 and 7).
Analysis
I. COVID-19
[26] It is clear, and I accept that, for now, COVID-19 is seriously affecting this community. Persons coming into the country are advised to self-quarantine for fourteen days. Everyone is advised to self-distance when out in the public, but also to stay indoors, wash their hands regularly, not touch their faces and have no contact with the elderly. Persons over seventy years old are asked to stay indoors at all times and their family and friends are urged to have no physical contact with them. The Superior Court is closed, as are many other courts in the province. No one is entirely sure how long these conditions will last, although some time frames have been set out by the provincial and federal governments for closures. The children in Toronto are not returning to school before May.
[27] I accept, and the Crown concedes, that COVID-19 is a material change to be considered in this application.
[28] However, I do not agree, as set out in R. v. J.S., 2020 ONSC 1710 (at para. 18), that "... 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." I also do not agree with the conclusions drawn by the judge in that case as set out in paragraph 19 as follows:
I take notice of the fact, based on current events around the world, and in the province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.'s own health, but also the preservation of scares hospital resources to treat patients. If more people are infected, those resources will be more strained.
[29] With respect, these are conclusions based on speculation and not on evidence.
[30] The only evidence of the virus in the Toronto South Detention Centre (TSDC) filed by the applicant on this hearing was a news article, dated March 20, 2020 reporting that one jail guard at the Centre (where the applicant is housed), had travelled and then gone back to work. He was tested positive for the virus. The article goes on to offer an opinion speculating about “who knows how quickly the virus can spread in the institution”.
[31] The Crown has filed the “Briefing Note -Institutional Services Response to COVID-19” which sets out the following:
Ontario has implemented several strategies to limit the effects of COVID-19 on our inmate population and our correctional staff. (A full list can be found in “Background”).
We have made great progress over the past two weeks to reduce our overall capacity in our institutions and we are at our lowest capacity numbers since January 2018.
Working closely with the Ministry of Health, Public Health, the Ministry of the Attorney General, the Ontario and Superior Courts and our Community Safety partners, we are confident in the care we are providing our inmate population.
Quick Facts:
- As of March 25, 2020, there are 6,925 inmates in custody across all 25 institutions.
- There are 1,286 fewer inmates in custody today than there was on March 13, 2020. That is a 16% reduction, in 2 weeks.
- As of March 24, 2020:
- Total tested for COVID-19: 20
- Total negative results: 8
- Total pending results: 11
- Total positive results: 1
- Given the size of our population, this is currently a very small risk factor.
- Regarding the positive result, this individual was identified at admission and they have been maintained in isolation and on droplet precautions. There is no known risk to staff or inmates within the impacted institution.
TEDC specific Quick Facts:
- As of March 25, 2020, there are 317 inmates in custody, which is under our capacity of 473 beds.
- In the past two weeks, number of inmates in custody has decreased from 384 to 317.
- There have been no notable impacts on operations during this time period (due to COVID-19 or other issues).
- As of March 25, 2020, no inmates have required testing for COVID-19 at TEDC.
- As of March 25, 2020, no staff have tested positive at TEDC.
Communicable disease outbreak process:
- If an outbreak of any communicable disease occurs or is suspected, institution officials will take immediate precautionary containment measures in accordance with operating procedures, including notifying the local Medical Officer of Health, and provincial health professionals.
- Institution health care staff working collaboratively and under the direction of the local Medical Officer of Health manage the situation, including containment strategies such as medical isolation.
Background: Actions:
- Personal visitation has been suspended until further notice. Institutions are working on local initiatives to provide extra postage, phone calls and activities for inmates while visits are suspended.
- Professional visits including lawyers and spiritual volunteers are continuing.
- Every individual entering the institution is subject to a screening process that was developed based on Ministry of Health guidelines. This includes:
- New admits
- Inmates returning from court or being transferred
- All professional visitors
- All staff, each time they enter the institution
- Personal Protective Equipment (PPE) is being worn in Admitting and Discharge department by those correctional staff that have first contact with new admits and by nursing staff doing screening.
- Facilities are inspected and thoroughly cleaned daily and/or as required. Additional cleaning services are being co-ordinated and provided through our Corporate Services Division.
- Proper handwashing and cough/sneezing protocol has also been communicated to inmates. Information has been posted in inmate areas.
- Staff have access to PPE and are instructed to wear it during specific activities as advised by the Ministry of Health.
- If an outbreak of any communicable disease occurs or is suspected, institution officials take immediate precautionary containment measures in accordance with operating procedures, including notifying the local Medical Officer of Health, and provincial health professionals. Institution health care staff working collaboratively and under the direction of the local Medical Officer of Health manage the situation, including containment strategies such as medical isolation.
To reduce capacity:
- Intermittent inmates who serve time on the weekends are required to attend their reporting facility for their first reporting date, where they will be given a Temporary Access Pass (TAP) from custody and permitted to return home. The TAP will be issued for May 1, 2020 or their sentence end-date, whichever comes first. This means those serving intermittent sentences will not have to report to a correctional facility every weekend, reducing the number of individuals entering the institution.
- The ministry is beginning to proactively perform a temporary absence review for all inmates to determine whether they are eligible for early release. Inmates chosen must be near the end of their sentences and be considered a low risk to reoffend. Inmates who have been convicted of serious crimes, such as violent crimes or crimes involving guns, would not be considered for early release. Unlike the standard process, inmates are not required to apply for release and will be notified if they qualify and must agree to the terms and conditions of their release prior to leaving the institution.
- We are working closely with the Ministry of the Attorney General and the Courts to ensure that any low-risk, non-violent offenders can be diverted at court.
- We are working in conjunction with the Ministry of the Attorney General and the Ontario Court of Justice, as well as the police agencies and counsel, to significantly increase the use of virtual courts (video and teleconference), thereby reducing the number of inmates transported to courthouses for appearances.
- The Ontario Parole Board is conducting all hearings by teleconference.
[32] I have reviewed cases provided by the applicant which follow the line of reasoning set out in J.S. and do not accept the reasoning therein - mainly because they also are not founded on any evidence. The facts also vary from the applicant’s case.
[33] I do accept the reasoning set out in R. v. Nelson, 2020 ONSC 1728 at paragraph 35 that rudimentary medical evidence should be submitted by an applicant in a hearing such as this to show that he or she has underlying health issues that may make them more susceptible to contracting the virus.
[34] I also accept the reasoning in R. v. Budlakoti, 2020 ONSC 1802, heard in the Superior Court on March 26 and 27, 2020. In that ruling, Justice Laliberte found that a consideration of the material change alleged due to COVID-19 in a case where the applicant had been detained on the secondary ground, required “medical evidence that demonstrates the defendant’s health concerns are real, significant and would result in him being at higher risk for contracting COVID-19 or suffering more serious consequences…” In her case, the applicant alleged such susceptibility. The court did not accept his affidavit evidence on the issue.
[35] Mr. Jeyekanathan is young man and has no such underlying conditions.
[36] There is no evidence of COVID-19 at the SDC that would persuade me to release the applicant. Mr. Jeyakanthan has no pre-existing conditions that would make him particularly susceptible to the virus.
[37] I am not able to conclude, at this time, and in this case, that COVID-19 is a relevantly material change of circumstance that would allow me to interfere with the Justice of the Peace’s decision to detain Mr. Jeyakanthan. That is so especially after reviewing the “actual considerations that underpinned the first bail judge’s refusal of bail” (supra., White at paras. 25-26).
II. The New Plan
Secondary Ground
[38] The applicant has not met his onus on a balance of probabilities on this hearing on the secondary ground for the following reasons.
[39] First, I am not convinced by the applicant’s submission that his brother was released so he should also be released. The two brothers were in entirely different positions when the applicant escaped his home to be with Jayson in Toronto on November 17, 2018. Jayson was merely wanted by police on the night of the Toronto charges and had a youth record over a decade or so old at the time. He was not on bail release and a peace bond with conditions that he obey a house arrest; that he not have any weapons; and that he not possess any unlawful drugs. The applicant was.
[40] I also note that, in spite of the fact that the applicant has no criminal record, the gravity of his alleged behavior is escalating. The offences are serious and the risk of harm to the public by it is increasing.
[41] I have considered the statistical table of March 22, 2020 filed by the Crown and not challenged by the applicant outlining the rate of gun violence in this city and the damage caused to date by that activity. It sets out “Toronto has seen 94 shootings [in 82 days], 100 victims = 42% increase from 2019 [the highest year-to-date number ever] 11 killed by firearms”.
[42] Public safety is threatened by the types of activities the applicant is accused of. In the Milton allegations, the applicant is arrested in a vehicle with a firearm in his waist. The firearm was loaded with a bullet ready to be fired from the chamber. The firearm was later determined to have been stolen in Ohio some months earlier. There were 19 packs of cocaine in the car. The offence took place in a large public mall. The case is strong that he is involved with organized drug trafficking.
[43] In the Toronto matters, although not as strong a case against Janson as against Jayson, Mr. Jeyakanthan was out on the streets in the early morning hours when he was supposed to be in his parents’ residence in Brampton. He had MDMA in his satchel. He had 3 of his closest family members supervising him at the time.
[44] He had signed a peace bond two days before and promised the court to keep the peace and not possess any weapons.
[45] I agree with the Crown’s submission that Mr. Jeyakanthan is not showing that he is prepared to be supervised on bail.
[46] The Justice of the Peace found that electronic monitoring was only a strength in the plan of supervision if the sureties were able to successfully supervise Mr. Jeyakanthan. I have already said that I agree with her finding. And, I cannot find that the applicant’s aunt and uncle can successfully supervise him. As a result, the monitoring cannot add extra safeguards on the secondary ground.
[47] The proposed sureties are more distant family members from the applicant’s parents and sister. This couple has 5 children of their own and are both working. Mr. Jeyakanthan Vadivelu also appeared to give inconsistent evidence on this hearing about his evidence on the prior bail hearing for Jayson where he was made his surety. On this hearing, he claimed interpretation problems in the Jayson bail hearing testimony that the Crown cross-examined him on. I am prepared to accept his evidence that there were some problems, however I am still not convinced that, in all the circumstances of this application, he is truly able to control the applicant. I find that he was not a credible witness and was slanting his evidence in order to secure the release of the applicant.
[48] His wife, Koneswary Koneswaran, was a straightforward witness. She admitted that she believed that the applicant’s behavior made him untrustworthy but testified that she and her husband could supervise him, nonetheless. I am not convinced, however, at any level that they can.
[49] There is no material change of circumstances by changing the parents to the aunt and uncle for supervision purposes. The application is dismissed in relation to the secondary ground.
The Tertiary Ground
[50] The applicant has also not met his onus on the tertiary ground.
[51] The fact that the new plan and the proposed sureties are insufficient is a factor on this issue, which focus is the maintenance of confidence in the administration of justice. The Justice of the Peace set out all the issues that supported her reason to detain. They need not be reviewed in detail in light of my finding that there are no material changes to support a release in this application. I will reinforce, however, the fact that the Milton charges are strong. The fact that the applicant breached his bail by being in Toronto is clear. There is circumstantial evidence, if believed by the trier of fact on the Toronto charges, that could result in some convictions for those offences.
[52] The offences alleged are serious. They involve loaded firearms and illegal drugs. I refer back to the statistics mentioned earlier in this ruling that, as of March 22, 2020, “Toronto has seen 94 shootings [in 82 days], 100 victims = 42% increase from 2019 [the highest year-to-date number ever]11 killed by firearms”.
[53] The applicant faces lengthy terms of imprisonment because these are firearms offences.
[54] The applicant is not a candidate for bail.
[55] The application is dismissed.
McWatt, J.