Court File and Parties

COURT FILE NO.: CR-1144/20 DATE: 2020-04-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.L. Accused/Applicant

COUNSEL: J. Ostapiw, for the Crown D. Michel, for the Accused/Applicant

HEARD at Sudbury: April 7, 2020

BEFORE: A.D. Kurke J.

Reasons on Bail Review

Overview

[1] The applicant is charged with assault (x2), sexual assault, breach probation, criminal harassment, mischief under $5,000, intimidation, operating a conveyance while disqualified, and drive suspended (x2). On November 29, 2019, after a bail hearing, J.P. Bubba (the “J.P.”) detained the applicant on the primary, secondary and tertiary grounds of bail.

[2] The applicant applies for review of that decision pursuant to s. 520 of the Criminal Code, asserting that 1) the J.P. erred by finding his initial proposed surety unqualified, and 2) there have been material changes in circumstance in that the applicant now offers a new plan of release that includes a second surety and monitoring by ankle bracelet, and in that he is in danger in custody by reason of the current COVID-19 pandemic.

[3] The bail review was heard by teleconference on April 7, 2020. At the conclusion of the hearing I dismissed the application with reasons to follow. These are those reasons.

Facts at Bail

Evidence of the offences

[4] On July 31, 2019, the applicant was stopped by a police officer for making an improper turn while driving a 2006 Cadillac CRX. He promptly admitted to the officer that he did not have a licence and provided his name and date of birth. The officer discovered that the applicant was both a suspended and a prohibited driver and arrested him. The applicant was released from custody on those charges pending his trial, and the motor vehicle, which did not belong to the applicant, was seized.

[5] The bulk of the charges relate to complainant S.S., an international student from India. She took a job advertised by the applicant’s mother to babysit the applicant’s dog. At the time, the applicant was in custody. The two became friends. After the applicant’s release from custody in April 2019, the two became involved in an intimate relationship, and the applicant moved into the complainant’s apartment. He apparently assisted the complainant in paying her school tuition.

[6] Their first sexual encounter took place on their first date. The complainant alleges that the applicant persisted with extended vaginal intercourse even after she complained that she was suffering pain from it and told him to stop. The complainant continued in a relationship with the applicant, who continually forced intercourse upon her. Although it appears that she did not always decline the applicant’s advances, the complainant alleges that when she did, he either ignored the clear indications she sometimes made that she did not want to have intercourse or acquired her compliance by slapping her, punching her, or holding her by her wrist against a wall. On one occasion it is alleged that the applicant slapped the complainant’s sister when the sister attempted to intervene on the complainant’s behalf.

[7] It is also alleged that on September 15, 2019, the applicant yelled at the complainant and threatened her when she bought shoes whose colours he did not approve of. He proceeded to cut the shoes in half.

[8] The applicant regularly told the complainant that if she ever went to police, or if she did not repay him the tuition money he had fronted her, he would telephone Immigration Canada and have her deported. This threat caused the complainant fear. At her interview with police the complainant showed the applicant’s text messages to police. In those messages were references to a 1-800 number that police discovered would connect one with client support services for Immigration Canada.

[9] The complainant eventually did go to police, and police contacted the applicant on September 17, 2019, and requested him to turn himself in. He said that he would do so at 11:00 p.m. that day. But he did not. Instead, he turned off his telephone, and police were not able to contact him. They secured a warrant for his arrest. The applicant’s driving charges had a required court attendance date of October 30, 2019, but he did not attend, and a bench warrant issued for his arrest, and a fail to attend court charge laid. The applicant was arrested by police in British Columbia and turned over there to officers from the Greater Sudbury Police Service on November 10, 2019 and returned to Sudbury.

The applicant’s criminal record

[10] The applicant has a youth record extending from 1993 to 1997. Represented there are convictions for mischief, theft under (x2), theft over (x3), possession of stolen property (x9), assault (x2), assault causing bodily harm, dangerous operation of a motor vehicle, escape lawful custody, breach probation (x6), and breach bail order (x7).

[11] As an adult, the applicant has a virtually unbroken record of criminal offences extending from 1998 through December 2018 and committed in Ontario and Alberta. There are property offences: possession of stolen property (x4), take motor vehicle without consent, theft under, mischief under, and fraud over (x2). There are offences of personal violence: threatening (x2), assault (x8), criminal harassment, and forcible confinement. He was convicted of dangerous driving cause bodily harm. As to offences against the administration of justice: fail to attend court (x7), fail to comply with bail order (x4), unlawfully at large, attempt obstruct justice, public mischief, and driving disqualified (x21).

[12] In March 2013, the applicant was apparently sentenced in Alberta to at least 4 years 9 months custody for multiple offences, though it is unclear whether some of the entries under that date may have involved time consecutive to that lengthy period. He must still have been serving part of this sentence in February 2018, as he was sentenced on that date to a further six months jail consecutive for other offences. On December 17, 2018 he was sentenced to five and a half months in custody. The evidence indicates that at least three of his victims of personal violence from 2012 through 2018 were female. All 8 of his convictions for assault were registered since March 2013.

The plan at bail and the decision of the Justice of the Peace

[13] At bail it was proposed that the applicant be released to his mother D.L. as surety.

[14] D.L. is herself on ODSP for a back problem and COPD, a “breathing affliction”, and the applicant indicated that he would live with her and take care of her. Her issues were severe enough that she was unable personally to care for the applicant’s dog, which was why the complainant had been hired. The applicant had not lived with D.L. since he was 16 years old. The learned J.P. was concerned about the applicant’s mother as surety for several reasons: her poor health, and her very limited assets, which mainly consisted of a vehicle that she would need to get around. Also of concern were the applicant’s many convictions for breaching court orders, showing him to be ungovernable by any but a strong surety in every respect. The applicant’s mother was not approved. The applicant asserts that this decision represents error.

[15] On the primary grounds, the J.P. pointed out the applicant’s many convictions for failing to attend court. His record includes convictions in Sudbury and several places in Alberta. The J.P. considered the applicant’s explanation for going to British Columbia after telling police that he would turn himself in, that he went there to get better drug cessation treatment and treatment for his PTSD. Even without noting the fact of the bench warrant issued in October 2019 for his failure to attend court in Sudbury, the J.P. not unreasonably concluded that the applicant “turned off his telephone and fled to Vancouver.” The J.P. had grave concerns on the primary ground and he found that detention was necessary.

[16] On the secondary ground, the J.P. considered the applicant’s criminal record, which he described as an “incredible history” of involvement with police. He found that the applicant’s past conduct clearly indicated long-term criminality and failure to abide by court orders. There was a substantial likelihood of the commission of further offences. Furthermore, the applicant’s efforts to improperly influence the complainant in this case allowed the J.P. to conclude that the applicant’s interference with the administration of justice would also be “likely.” That conclusion would only have been strengthened had the J.P. also considered the applicant’s convictions for attempting to obstruct justice and public mischief. The court had “grave concerns” that the applicant would ignore any order that was made and approach the vulnerable complainant and her sister. The secondary ground mandated detention.

[17] The J.P. was aware of the applicant’s claimed medical concerns: a heart issue from which he had recovered, a thyroid “disease”, brain damage suffered as a teenager, and PTSD, in dealing with the tertiary ground. The J.P. expressed surprise that the applicant had secured no medical documentation at all to verify his health concerns. The J.P. then focused on issues relating to the strength of the Crown’s case: the evidence of the complainant and her sister, the text messages sent by the applicant to the complainant as evidence of pressure applied to the complainant, the evidence of the applicant’s flight to British Columbia and his incredible explanation that his trip there was for treatment. A significant period of incarceration was likely, given the lengthy sentence imposed in Alberta in 2013. The J.P. was also satisfied that the Crown had shown cause on the tertiary ground.

Material change: the new plan of bail and COVID-19 issues

[18] The applicant asserts material change in the form of an improved plan of bail, incorporating the use of an ankle bracelet by which his whereabouts could be securely monitored, and a second surety who would offer him a job and supervision at work. The applicant also points to the dangers to which he is exposed in custody as a result of the COVID-19 pandemic as a further material change.

[19] The proposed release would involve two sureties, D.L. and C.G., with amounts pledged sufficient to ensure that the sureties understand that they need to perform their duties diligently. It is still the applicant’s intention to reside with his mother in her apartment, but to work at C.G.’s place of business where he would be monitored by C.G. An ankle bracelet would be affixed to the applicant, allowing him only to be at home or at work or commuting between the two places, and keeping him away from the complainant.

[20] Additional conditions of bail would include: remaining in his residence at all times except for medical emergencies, court purposes, when he is in the presence of one of his sureties, or while at employment at C.G.’s business in Sudbury; remaining in the District of Sudbury; presenting himself at his door for police compliance checks; not operating a conveyance or being in the driver’s seat of any motor vehicle; possessing no firearms or weapons, cellphones or computers; having no contact with the complainant and remaining away from her; reporting to police every MWF; possessing or consuming no drugs or alcohol.

Conditions at the jail

[21] An affidavit of the applicant sets out his views of his current living conditions at the Sudbury District Jail, as well as his health concerns. Social distancing is not being practiced at the jail. The applicant shares a very small cell with two other inmates when he receives his suboxone treatments. Inmates have no disinfecting products to keep their surroundings clean. The jail has run out of razors, and inmates receive a shower a week. He describes being locked down since the onset of the COVID-19 pandemic. He has been denied visits with family, friends, or lawyers. No programs are offered.

[22] The applicant worries about his health as a result of the COVID-19 virus. He claims to suffer from COPD as a result of painting vehicles and is on a Ventolin inhaler for asthma. He has a crushed disc in his back causing unbearable tingling in his legs. No independent medical evidence was filed on the hearing. The applicant complains that scheduled medical and diagnostic imaging appointments for his back have been cancelled as the result of the pandemic.

[23] The Crown filed an Information Sheet relating to correctional institution responses to the COVID-19 pandemic, and presented as a witness Nathan Aubin, a deputy superintendent of operations at the Sudbury District Jail. a. As of April 3, 2020, four inmates in Ontario jails had tested positive for COVID-19. One of those was in the north, but not Sudbury. In Sudbury, precautions have been taken to screen and segregate new inmates and to isolate any inmates showing symptoms of illness. Currently there are no inmates in medical isolation. b. Social distancing is practiced as much as possible, and guards and medical staff use “PPE.” Inmates are provided with soap and instructions on how to clean their hands and, on request, cleaning products for their living areas. Additional cleaning has been undertaken by cleaning staff. c. Visitors are not permitted, and program providers have ceased coming into the jail, as precautionary measures during the pandemic. Inmates still have access to social workers, the chaplain, and recreation officers. Showers are offered every day. While there are no doctors currently on site, they “conference in,” and there is nursing staff. Nursing staff follow a cleaning regimen in the medical unit. Inmates, including the applicant, get regular time every day out of their cells and yard privileges. d. The applicant, at his request, has been alone in a cell for the past month. He has been seen by jail medical personnel and prescribed medications for pain management. The applicant’s imaging appointment was cancelled, not by the jail, but by Health Sciences North on the COVID-19 grounds that it was not an essential medical procedure. In March and April 2020, the applicant has been permitted extended socialization time outside of his cell on some 26 days.

[24] The applicant provided a letter to the court dated February 4, 2020, from the “Royal Oak Clinic” in Vancouver, British Columbia, indicating that the applicant was a patient at that clinic and received Suboxone during September and October 2019.

[25] The applicant filed an unattributed “COVID-19 Fact Sheet” that presents the grim statistics with which the entire world is now becoming increasingly familiar. Confirmed cases above 1.3 million, and more than 75,000 total deaths as of April 7, 2020. People of all ages are affected by the virus. There are 6 cases confirmed in federal institutions in Ontario, and 2 in provincial institutions. Ontario has taken steps to allow inmates out of custody including by way of temporary absences, if that can be accommodated safely. Very brief extracts from published articles raise alarms about the potential for outbreak of COVID-19 in prison settings in general, but with no particular focus on Canadian institutions.

Evidence concerning the ankle bracelet

[26] Stephen Tan, the Director of Operations at Recovery Science Corporation (“RSC”) testified, and RSC information concerning monitoring the applicant by an ankle bracelet was also filed. RSC provides a service by which the applicant would be monitored from southern Ontario through an ankle bracelet equipped with a GPS, which would allow monitors to ensure that he remains within acceptable zones while on bail. If the ankle bracelet is removed, or if the applicant were to stray outside of accepted areas, RSC monitors would be notified, and would contact local police.

[27] No system is foolproof. Given current COVID-19 limitations and the location of RSC, any release would likely have to permit the applicant to be ankle-bracelet-free for a time after release until it could be installed. The system is not inexpensive, and involves a $600 installation fee, and between $360 and $540 per month in monitoring fees. Failure to pay would represent a breach of the bail order. To date, some 30 individuals have cut off their bracelets, including one in Sudbury. Once cut off, the bracelet will not assist police in recapturing a fugitive.

The proposed sureties

[28] In her affidavit filed on this proceeding, the applicant’s mother D.L. proposed that the applicant will sleep on her couch in her one-bedroom apartment. She subsists on ODSP as a result of back injuries, as well as anxiety and depression. She says that she will advise ODSP of her son’s presence in her home. She knows G.B., the other proposed surety, with whom she will share her responsibilities.

[29] C.G. filed an affidavit and testified on the review. C.G. and the applicant have been friends since they were children. C.G. owns a business that employs 13 people. The business moves fleet vehicles to various points of destination. He also runs two businesses for a former employer, including a garage. He testified that his businesses netted more than $1 million in 2019. His intention is that the applicant would work at his businesses daily from 8:00 a.m. to 5:00 p.m. doing body work on the vehicles. He would pick up, drop off, and supervise the applicant during the work portion of the day, and coordinate supervision with D.L., at whose home the applicant would reside. C.G. was prepared to assist the applicant with the expenses of maintaining an ankle bracelet. Given his responsibility for several businesses and numerous employees, it is apparent that C.G. will not personally supervise the applicant at work.

Law concerning bail review and bail

[30] Pre-trial detention is the exception rather than the rule. It is to be employed in limited circumstances and only when it is necessary to promote the proper functioning of the bail system: R. v. Antic, 2017 SCC 27, at para. 50.

[31] Pursuant to s. 520 of the Criminal Code, a reviewing court may intervene if the J.P. at bail committed an error of law or made a clearly inappropriate decision or allocated too much or too little weight to relevant factors. The reviewing court may not intervene simply because it would have weighed various factors differently or reached a different conclusion. Additionally, the court may vary the initial decision if new evidence shows a material and relevant change in the circumstances of the case: R. v. St-Cloud, 2015 SCC 27, at paras. 120-121.

[32] The primary ground of bail in s. 515(10)(a) of the Criminal Code focuses on detention as a means of ensuring the accused person’s attendance at court to be dealt with according to law. That is, it is concerned with an accused person’s potential for flight. I have been directed to no authority where COVID-19 operates as a relevant factor with respect to the primary ground.

[33] Concerning the secondary ground in s. 515(10)(b) of the Criminal Code, its use for detention is constitutionally circumscribed: the requirement of a “substantial likelihood” of interfering with the administration of justice or committing further criminal offences has been established as the threshold: R. v. Morales, [1992] S.C.J. No. 98, at paras. 39-46. The focus under this ground is whether concerns about interference with the administration of justice or the commission of further offences can be controlled by a proper plan: R. v. Aden, 2019 ONSC 2043, [2019] O.J. No. 2439 (Sup. Ct.), at paras. 21-24.

[34] The tertiary ground in s. 515(10)(c) of the Criminal Code remains a self-standing ground for denying bail and is not limited in its focus to a certain class of crimes or exceptional circumstances. The ultimate question to be answered is whether detention is necessary to maintain confidence in the administration of justice. That question is to be answered by resort to a consideration of the combined effect of the four factors listed in the provision and of all other relevant circumstances in the case, including the personal circumstances of the accused, the status of the victim and the impact on society of a crime committed against that person, and the facts that a trial may be significantly delayed: R. v. St-Cloud, 2015 SCC 27, at paras. 50, 53-71, 87; R. v. A.A.C., 2015 ONCA 3450, at paras. 45-50.

Analysis

Error of law

[35] I am not persuaded that the J.P. made any error with respect to his rejection of D.L. as a potential surety.

[36] The J.P. considered the substantial evidence of D.L.’s many health issues and limited assets and weighed that against the applicant’s vast record of criminal offences that extended back to when the teenaged applicant was apparently still residing with D.L. The applicant’s record for breaching court orders made it appear likely that the applicant would end up losing her only real asset, her vehicle, as a result of a breach by the applicant of his order of release. The J.P. was concerned about D.L.’s health issues and need for transportation, and reasonably refused to allow that to happen.

[37] On this review, the applicant proposes that D.L. be required to promise a much smaller amount as surety, as impoverished people should not be denied the opportunity of serving as sureties. While I agree with the proposition, evidence advanced at this hearing offers much greater concerns than the loss of a vehicle. On the plan that is proposed, instead of practicing social isolation, the applicant will work daily outside the home on other people’s vehicles and potentially be exposed to significant pathogens. After work, he will return to his mother’s small one-bedroom apartment, where he will sleep on her couch. The J.P.’s concerns about D.L.’s health, including C.O.P.D., would only have been heightened by such a plan during the COVID-19 pandemic.

[38] The rejection of D.L. as a surety was not an error of law, an inappropriate decision, or an improper assessment of the evidence before the bail court. The evidence before this court supports the initial finding.

Material changes in circumstance

[39] There can be little argument, in my view, that the looming presence of the COVID-19 pandemic represents a material change in circumstance on this bail review. I accept, for the purposes of this review, that the COVID-19 pandemic is a factor to consider in the context of this bail review, with respect to the proposed new plan of bail and at least the second and third grounds of bail under s. 515(10) of the Criminal Code: R. v. J.S., 2020 ONSC 1710, at paras. 18-20; R. v. King, 2020 ONSC 1935, at para. 60. Accordingly, I must go on to consider the proposed plan of bail.

[40] I do not find that the simple addition of a further surety during the applicant’s working hours and monitoring by ankle bracelet add anything to the plan that was initially proposed. What it seems to do is add further details, to “reshuffle the deck of prospective sureties to draw out new ones,” without tangibly addressing the original reasons for the applicant’s detention: R. v. Ferguson, [2002] O.J. No. 1969 (Sup. Ct.), at para. 17. The new plan adds a new surety to the applicant’s workplace but still relies on the applicant’s mother’s supervision in the home. And this plan is strangely at odds with his initial proposal: to stay at home under house arrest and care for his mother. The ankle bracelet that is proposed will warn the applicant’s watchers after he has fled, but it neither prevents flight nor does it alert anyone to telephone contacts by the complainant with the vulnerable complainant.

[41] At bail, the applicant’s focus was on physical hardship that he would endure if he were required to remain in custody. At this review, the applicant has shifted his focus to risk factors that make him more likely to succumb to serious illness or death as a result of a COVID-19 infection. The applicant’s failure to file evidence relating to medical issues was noted by the J.P. at the initial bail hearing. No supporting material has been provided to this court either. Although we all will have our own individual fears about the virus, a plea for release based on those fears should be substantiated by evidence of actual susceptibility: R. v. Nelson, 2020 ONSC 1728, at para. 35; R. v. Jeyakanthan, 2020 ONSC 1984, at paras. 33-37; R. v. Budlakoti, March 27, 2020 (Ont. Sup. Ct.), at para. 14.

[42] Indeed, though detained persons in custody may face some health concerns, the evidence before the court on this review demonstrates that COVID-19 infection in holding facilities is currently very limited. The Sudbury District Jail is taking steps to implement the public policy of social and physical distancing, and to practice personal and facility cleanliness, insofar as possible, within the custodial setting. Programming is unfortunately limited, but that is dictated by attempts to control exposure of persons in the facility to outside sources of infection. The applicant complains about his inability to practice social distancing at the jail, but under his new plan intends to go to work every day. The applicant’s inability to undergo scheduled medical assessments is a function of cancellation of his tests by HSN, in the same manner as certain tests are being cancelled for those out of custody.

[43] On the primary ground, the new plan fails. D.L. remains an inappropriate surety, but it is still the applicant’s proposal that he reside with her. Rather than practicing social distancing, the applicant will work outside the home with his other surety, which may expose himself and both sureties to potential infection by COVID-19. The applicant claims asthma, but that is far outweighed by D.L.’s claim of COPD. Flight, a live issue in this case, as found by the J.P., remains a live issue even with an ankle bracelet. The risk of contracting COVID-19 in custody must be set against the risk of future flight to British Columbia for drug treatment that is available in Ontario.

[44] Nothing changes on the secondary ground, except for this. Travel between residence and work, and individual responsibilities at a place of employment, increase opportunities for the applicant to violate terms of release, and thereby to commit further offences and interfere with the administration of justice. Indeed, the nature of the applicant’s proposed employment, dealing as it does with motor vehicles, appears particularly inappropriate given the applicant’s extensive criminal history with automobiles and the current charges before the court. In other words, the speculative risks of contracting COVID-19 in the holding facility in no way outbalance the substantial likelihood that upon release, the applicant will commit further offences and interfere with the administration of justice.

[45] As to the tertiary ground, in my respectful view, it falls out this way. The new plan of release has the applicant working outside of his home with a new employer but an old friend while the rest of Ontarians try to isolate themselves at home, often at great financial hardship to themselves, to limit the spread of COVID-19. What would such persons think about the administration of justice when they learn that, though the Crown appears to have a substantial case, the offences are grave both inherently and in the context of the applicant’s criminal background, and a significant term of imprisonment is likely, the applicant was permitted release and employment outside the home?

[46] Although COVID-19 represents a material change in circumstances, and the applicant’s new plan of bail must be considered, I find: a. that the J.P. was correct to reject D.L. as a surety but that D.L. continues to be a significant piece of this current plan; b. that an ankle bracelet and these two sureties are insufficient to control concerns on the primary ground; c. that new aspects of the plan are not only inappropriate in the pandemic context, but insufficient to allay concerns on the secondary and tertiary grounds.

Conclusion

[47] The application is dismissed.

A.D. KURKE J. Released: April 9, 2020