Her Majesty the Queen v. T.G.
COURT FILE NO.: CR-20-11
DATE: 2020-04-06
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.G. Defendant
COUNSEL:
Jennifer Armenise for the Crown
Mitchell Huberman for T.G.
HEARD BY TELECONFERENCE: April 3, 2020
RULING ON NINETY DAY DETENTION REVIEW
BOSWELL J.
OVERVIEW
[1] T.G. is charged with being one of three attackers in a home invasion and group assault on a female complainant on July 10, 2019. The attack allegedly occurred in the complainant’s bedroom and was apparently motivated by a drug debt. T.G. was arrested on July 18, 2019 and has been in custody since that time.
[2] He is presently charged with the following offences: overcoming resistance by choking; uttering a threat to cause death; assault with a weapon; assault causing bodily harm; robbery; robbery with a firearm; break and enter; being unlawfully in a dwelling house; and breach of probation.
[3] T.G. had a show cause (bail) hearing on November 5, 2019 in Barrie before Justice of the Peace Noordegraaf. It was a reverse onus hearing because the alleged offence was committed at a time when T.G. was at large on an undertaking in relation to another indictable offence. See s. 515(6)(a)(i) of the Criminal Code.
[4] At the show cause hearing, T.G. proposed a surety release with his girlfriend, Y.R. and his mother, L.R., as his sureties, each in the amount of $1,000. He proposed house arrest, with exceptions for work or while in the presence of a surety. For employment, he proposed to work with a roofer, Kurt Danbrook Contracting.
[5] T.G. failed to satisfy the Justice of the Peace that his continued detention was not justified, specifically on secondary grounds. She rejected his plan of release, though I note that the reasons she provided for doing so were quite thin.
[6] Today T.G. is before the court on a mandatory ninety-day detention review under s. 525 of the Criminal Code. His proposed release plan is very similar to the one that was before the court of first instance. He again proposes to reside with his girlfriend, Y.R., who will be his surety, in the amount of $2,000. His mother is still prepared to be an additional surety, also in the amount of $2,000, but she was unavailable to attend the review hearing.
[7] The Crown opposes T.G.’s release.
[8] On March 15, 2020, Chief Justice Morawetz ordered that regular operations of this court would be suspended until at least early June 2020 because of the impact of the COVID-19 pandemic. The court continues to address urgent matters, including detention reviews, but does so remotely. The hearing of this matter proceeded, on consent, by telephone conference. T.G. participated in the conference call from the Central North Correctional Centre.
THE GOVERNING LAW
General Principles
[9] Any hearing involving the pre-trial detention of an accused person must be conducted with certain fundamental principles in mind. First, T.G., like any accused person, is presumed innocent of the charges against him. Second, T.G., again like any accused person, is constitutionally entitled to bail, absent just cause to deny it: Charter of Rights and Freedoms, s. 11(e).
[10] In a series of cases over the last five years, the Supreme Court has re-affirmed that pre-trial detention is the exception, while the earliest possible release, on the least onerous terms, is the default presumption. See R. v. St-Cloud, 2015 SCC 27; R. v. Antic, 2017 SCC 27; and R. v. Myers, 2019 SCC 18 (“Myers”).
[11] This hearing involves an assessment of T.G.’s continued detention. It is not an original bail application. Nor is it a review of the prior decision from the show cause hearing.
[12] The analysis to be applied on ninety-day detention reviews has historically been somewhat murky. The Supreme Court attempted, in Myers, to provide some clarification about how these types of hearings are to be conducted and what the function of the presiding justice is.
[13] It is now clear that the ninety-day detention review is not meant to be a complete rehearing of the initial show cause hearing. A s. 525 hearing is not a review of the prior detention order, but a review of the detention itself. The presiding justice must determine whether continued detention is necessary, having regard to the factors expressed in s. 515(10) of the Criminal Code (Myers, para. 46). In doing so, respect is to be shown for the findings of fact of the judicial officer who conducted the initial bail hearing, if there is no cause to interfere with them. Particular attention is to be paid to any material changes in circumstances or new information that may bear upon the justification of continued detention. The court must also consider whether the time already spent in custody has an impact on the appropriateness or proportionality of the detention. The overarching concern is that accused persons do not languish in remand facilities awaiting trials that may be many months, or even years, into the future.
Grounds for Continued Detention
[14] As I noted, pursuant to s. 11(e) of the Charter, an accused person has the right not to be denied bail without just cause. The Supreme Court has made it abundantly clear that bail may only be denied in a “narrow set of circumstances” and only where denial of bail is “necessary to promote the proper functioning of the bail system”: R. v. Pearson, [1992] 2 S.C.R. 665 at para. 58; R. v. Antic, 2017 SCC 27 at para. 40.
[15] The bail system does not function properly where those on bail fail to appear for future court dates, commit further offences, or interfere with the administration of justice. And it does not function properly where it causes the administration of justice to be brought into disrepute.
[16] In section 515(10) of the Criminal Code Parliament has identified the circumstances in which pre-trial detention may be justified in order to ensure the proper functioning of the bail system. There are three grounds for continued, lawful detention. They are generally referred to as the primary, secondary and tertiary grounds. They have withstood constitutional challenges and are Charter-compliant, provided, of course, that they are properly applied: see Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 and R. v. Hall, 2002 SCC 64.
[17] Each of the three grounds for lawful detention addresses a different concern. Detention is justified on the primary ground if the accused poses a flight risk. Detention is justified on the secondary ground where it is necessary for the protection or safety of the public. And detention is justified on the tertiary ground if it is necessary to maintain confidence in the administration of justice, having regard to all the circumstances of the case.
[18] T.G. was detained, after the initial show cause hearing, on secondary ground concerns and those concerns remained the focus of attention during the s. 525 review.
THE PARTIES’ POSITIONS
[19] T.G.’s counsel urges the court to reconsider T.G.’s detention and to release him on the proposed terms, which he acknowledges are by and large the same as those proposed at the initial show cause hearing. His position is based on two pillars.
[20] First, the passage of time. T.G. has been in custody since July 18, 2019. He has used some of that pre-trial detention, however, as a credit against other matters. It is agreed that any credit he has towards the index offences begins to run as of November 4, 2019. He currently has 5 months of dead time, which is the equivalent of 7.5 months when multiplied by a factor of 1.5, in accordance with the principles of R. v. Summers, 2014 SCC 26.
[21] T.G. has a preliminary hearing scheduled for one day in October and another in November, 2020. Assuming that those go ahead as scheduled, he will be at a year’s worth of dead time, or the equivalent of 1.5 years against any sentence ultimately imposed. His counsel suggests that he will be, by the preliminary hearing, approaching the point where his pre-trial custody is disproportionate to any sentence that might ultimately be imposed.
[22] Second, the COVID-19 crisis. There are two aspects to defence counsel’s argument about how the COVID-19 pandemic impacts upon T.G.’s continued detention:
(i) The obvious submission that inmates in crowded and confined spaces are at greater risk of contracting – and then passing along – infectious diseases. Courts have been giving serious consideration on bail applications to the potential impact of the virus on persons detained in remand facilities. See R. v. J.S., 2020 ONSC 1710, 2020 ONSC1710; R. v. Nelson, 2020 ONSC 1728; R. v. King, 2020 ONSC 1935; and R. v. T.L., 2020 ONSC 1885; and,
(ii) The less obvious submission that T.G. is highly motivated to get out and stay out of the remand facility given concerns about the risks of contracting the novel coronavirus. Moreover, given the significant restrictions on social activity during the course of the pandemic, one can be assured that there will be a very low likelihood that T.G. will commit further offences or pose any significant safety risk to the public.
[23] The Crown’s position is that there has been no material change in the circumstances of this case, of T.G. personally, or of the plan of supervision he proposes.
[24] T.G. is, in the submission of the Crown, a person highly likely to commit further offences, based on his track record. Any plan of supervision would need to be very strict. The one proposed is not even close to being sufficient to allay concerns on the secondary ground.
[25] Any risk of COVID-19 is more theoretical than real in the Crown’s view. There is no evidence that anyone at the Central North Correction Centre has tested positive for the virus. There is no evidence that T.G. is at any particular risk of harm from it. He is young and otherwise healthy. The pandemic happening outside of the institution cannot justify T.G.’s release given his criminal antecedents and his weak plan of supervision.
ANALYSIS
[26] I am not persuaded that T.G. has met his onus of establishing that his continued detention is no longer justified. Said another way, I am persuaded that continued detention is justified on secondary ground concerns. The following reasons explain why.
The Secondary Ground
[27] Detention is warranted on the secondary ground where necessary for the protection or safety of the public, including any victim of or witness to the offence. A consideration of the secondary ground requires the court to look at all of the surrounding circumstances, including any substantial likelihood that the accused will re-offend or interfere with the administration of justice if released.
[28] The “substantial likelihood” threshold does not require the court to make exact predictions about future dangerousness: see R. v. Morales as above. Justice Gary Trotter has described the “substantial likelihood” test, in The Law of Bail in Canada, 3rd ed. Toronto: Carswell, 2010 (loose-leaf updated 2016, release 1) as a slightly enhanced balance of probabilities standard.
[29] The assessment of the likelihood of re-offence or interference with the administration of justice, and of the protection of the public more generally, requires a consideration of a cluster of factors. The nature of the offence, the criminal record of the accused, the strength of the Crown’s case and whether the accused was already on bail or probation at the time of the alleged offence(s) are all relevant considerations: see R. v. K.D., [2006] O.J. No. 2616 (S.C.J.) and R. v. Vairavanathan, [2006] O.J. No. 3053 (S.C.J.).
[30] If the court concludes that public safety is at risk, and/or that there is a substantial likelihood of re-offence or interference with the administration of justice, then the issue will be whether the proposed terms of release will adequately address the secondary ground concerns. Here, the accused bears the onus of satisfying the court that the proposed sureties and their plan of supervision will sufficiently reduce the risks posed by release.
[31] A couple of factors stand out in terms of secondary ground concerns. First, at the time of the alleged offences, T.G. was subject to three separate probation orders and he was at large on an undertaking in relation to other charged offences.
[32] Second, is T.G.’s criminal record. It is appalling.
[33] T.G. is 32 years old. He has a record stretching back 18 years. It contains 27 convictions. Some are for offences of violence, including an assault in 2002, an assault and an assault causing bodily harm in January 2018, and assault with intent to resist arrest in July 2019. Some are for possession of controlled substances, including in July 2008, August 2018 and July 2019. Others are for offences of dishonesty, including theft under $5,000 in April 2003, possession of property obtained by crime in March 2004, and theft under in July 2007. Most alarming are the 16 convictions for offences against the administration of justice, including breach of an undertaking and breach of recognizance in April 2003, breach of an undertaking and breach of probation in April 2008, breach of probation in July 2008, breach of recognizance in September 2010 and again in December 2010, breach of probation (x2) in February 2012, fail to attend court in December 2016, January 2017, and August 2018 and escape lawful custody, breach of a s. 109 weapons prohibition order, and breach of probation in July 2019.
[34] T.G’s criminal antecedents suggest he is an untrustworthy person who has little, if any respect for court orders. He is a poor candidate for release. He appears to be ungovernable. Anyone who believes that he is a changed man with a newfound respect for court orders is fooling themselves.
[35] T.G.’s counsel argued on his behalf that he was motivated not just to get out of jail, but to stay out given concerns about a higher risk of contracting the coronavirus while in custody. He also argued that with the community in a general lockdown state, there will be a significantly reduced prospect that T.G. will commit further offences. All of this is to suggest that the circumstances surrounding the pandemic and its impact on society reduce the chance of re-offence or interference with the administration of justice to something below the “substantial likelihood” threshold.
[36] Counsel’s argument was an interesting and compelling one. It might even have been persuasive but for T.G.’s demonstrated disdain for governance. He has a documented history of failing to follow court orders and of failing to attend court dates. His unwillingness to comply with the directions of the court leaves me with little confidence that he will be willing to follow “Stay Home” guidelines.
[37] The bail system does not function properly if those released on conditions fail to follow those conditions. I am satisfied that there is a substantial likelihood that T.G. will not follow the conditions imposed upon him. I am satisfied that there is a substantial likelihood that he will commit further offences if released from custody and that he poses a risk to the safety and security of the public.
[38] My conclusion about the risks posed by T.G.’s release does not automatically mean that he is not entitled to bail. But it means that he has to present a plan of supervision capable of attenuating the risks he poses. Unfortunately, the plan he has presented fails to do so.
[39] T.G.’s proposed surety is his 26 year old girlfriend. I found her to be a thoughtful and well-intentioned person. I am convinced that she wants the best for T.G. He is lucky to have her in his corner. But she can only do so much. She has two small children to care for and a job that requires her to be out of the home for 40 hours per week. Much of the supervision of T.G. will be left to her parents or his proposed employer, none of whom are offered as sureties and none of whom gave evidence on the bail application.
[40] T.G. also has a serious drug addiction. That addiction may inform many of his criminal antecedents. Y.R. has put in a great deal of effort researching support groups and their availability during the current pandemic. Regrettably, while the health crisis lasts, there will be little day-to-day assistance for T.G. in that regard.
[41] T.G., in my view, is not a person completely unsuitable for release. But he requires 24/7 supervision given his atrocious track record of breaching orders. Y.R., as well-meaning as she is, is simply incapable, on her own, of providing that level of supervision.
The Risks of COVID-19
[42] I turn now to the impact of the COVID-19 crisis in terms of the heightened risk of those persons confined in correctional institutions.
[43] The evidentiary record on this point is not helpful one way or the other. There is no evidence, for instance, of whether inmates in correctional facilities are at statistically greater risk to contract the virus than those in the general population. There is no evidence of what, if any, prevention or isolation strategies that correctional officials have in place. There is no evidence of any positive tests for COVID-19 at the Central North Correctional Centre where T.G. is being held.
[44] I do accept that if the virus enters the population of the remand centre, there is a significant risk of exponential infections given the crowded conditions of those facilities and the inability of inmates to achieve any reasonable form of physical distancing.
[45] Assuming, for the sake of argument, that T.G. has a heightened risk of contracting the virus as a result of his incarceration, that risk cannot, on its own, justify his release. Public confidence in the administration of justice would be immeasurably eroded were we simply to fling open the doors of all correctional institutions in a panic over potential exposure to the coronavirus.
[46] If this case had been a close call, I would think that concerns about increased exposure to the virus and its potential to spread quickly among inmates might very well tip the scales in favour of release. But this is not a close call.
Delay
[47] Finally, I will comment briefly on the issue of delay. T.G. presently has 5 months of pre-trial custody associated with the index offences. His preliminary hearing is still half a year away. He is, however, facing very serious charges relating to a violent home invasion. Should he be convicted he will likely be facing a penitentiary sentence. Certainly his criminal record will be an aggravating factor.
[48] One can only speculate about when T.G.’s trial is likely to be. At present, I am not persuaded that the time spent in pre-trial custody, or likely to be spent in pre-trial custody, is disproportionate, or sufficiently lengthy to warrant a release on an otherwise insufficient plan of supervision.
[49] It may be that circumstances will change. The strength of the Crown’s case may significantly weaken after the preliminary hearing. T.G. may put together a stronger plan of supervision. Or concerns about proportionality may increase the longer out T.G.’s trial date is.
[50] In the event of a change in circumstances, T.G. may apply for a further review of his detention. For now, however, it will continue.
Boswell J.
Released: April 6, 2020