Court File and Parties

COURT FILE NO.: DR(P) 107/20 DATE: 2020 04 08 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THUTOP PHUNTSOK Applicant

• and - HER MAJESTY THE QUEEN Respondent

COUNSEL: R. Geurts, for the Applicant V. Aujla, for the Respondent

HEARD: April 3, 2020

REASONS FOR DECISION ON BAIL REVIEW

BARNES J.

INTRODUCTION

[1] Thutop Phuntsok seeks a review of the detention order of Justice of the Peace Fisher-Grant dated December 11, 2019. This hearing takes place during the COVID-19 pandemic whereby in-person hearings at the Ontario Superior Court of Justice have been suspended.

[2] On consent, this hearing took place by audio conference and in the absence of the applicant. Mr. Geurts appeared on behalf of the applicant and Mr. Aujla appeared for the Crown. The primary proposed surety, Dechen Chonzom, filed an affidavit. She was cross-examined by the Crown and re-examined by Mr. Geurts. A Tibetan interpreter also participated via audio conference and provided translation from Tibetan to English for Ms. Chonzom: Criminal Code, R.S.C., 1985, c. C-46, ss. 515(2.2), 520(3), 521(3).

[3] For the reasons outlined below, the bail review application is dismissed.

BACKGROUND FACTS

[4] Surveillance footage shows the applicant arriving at a pub in Brampton on May 17, 2019. He was with an unidentified male. The applicant is seen throwing a cigarette to the ground. He and the male then entered the pub. They were joined by an adult female and a child. Together, they all had dinner.

[5] While in the pub, either the applicant or his male companion had an argument with the complainant Dushawn Smith. The argument spilled into the parking lot and turned into a physical altercation. The applicant and his unidentified companion fled the scene. As the applicant retreated, he fired six gunshots towards Mr. Smith. The bullets missed their target and no one was hurt.

[6] Video surveillance shows that the person who fired the six gunshots was wearing a hoodie or jacket with an “air C” on it, which is a Champion-brand logo. Face recognition software used by the police determined that the person wearing the said hoodie or jacket was the applicant. DNA analysis also linked the discarded cigarette in the parking lot to the applicant.

[7] The pub is located in a strip plaza that also has a busy McDonald's restaurant. At the time of the incident, there was also a Raptor’s finals game on. At the time of the shooting, the plaza was fairly busy.

[8] On August 9, 2019, police executed a search warrant on the applicant's home. They found a black Champion jacket which appears to be the same jacket depicted in the surveillance video. They also found a pack of cigarettes of the same brand as the discarded cigarette found at the pub parking lot. The police also confirmed that the applicant had been dropped off by an Uber at the pub prior to the alleged incident.

[9] Once identified as a suspect, the applicant remained at large for several weeks despite police efforts to locate him.

BAIL HEARING

[10] The applicant was charged with ten offences including two counts of discharging a firearm. This is a reverse onus situation.

[11] At the bail hearing, the applicant proposed four sureties. The applicant’s father, Rinzin Phuntsok, was the primary surety. Each surety pledged a total of $200,000 and 24-hour house arrest with the primary surety. The applicant's father was the centre-piece of the release plan as the applicant was to reside with him. His father had been his surety on three previous occasions when the applicant breached his bail.

[12] Justice of the Peace Fisher-Grant concluded that the three prior breaches demonstrated that the applicant would not listen to his father. Therefore, she concluded that the applicant's father was not a suitable surety. The Justice of the Peace also concluded that by his past criminal antecedents, the applicant had demonstrated that he was not prepared to comply with any release plan. Her Worship therefore concluded that the applicant’s detention was warranted on the secondary ground.

[13] In considering the tertiary ground, the Justice of the Peace concluded that the Crown’s case was strong. If convicted, a penitentiary sentence was warranted. Furthermore, Her Worship found that the circumstances surrounding the commission of the offences were serious, as it included the discharge of a firearm in a crowded public place. Therefore, she found that on balance, the applicant's release would not maintain the public's confidence in the administration of justice. The applicant had therefore failed to discharge his onus and his detention was also warranted on the tertiary ground.

POSITION OF THE PARTIES

[14] The applicant submits that there has been a material change in circumstances which warrants a review of the detention order. He proposes a release plan with five sureties each pledging $50,000, a 24-hour house arrest at the residence of the primary surety, and electronic monitoring.

[15] The Crown is opposed to the applicant’s release on the secondary and tertiary grounds. The Crown submits that the primary surety is not suitable and that the applicant has demonstrated that he would not comply with any release plan.

ANALYSIS

[16] Throughout this analysis, the applicant is presumed innocent of the charges against him. On review, the decision of the Justice of the Peace may be set aside or varied where: 1) there is an error in law; 2) there has been a material change in circumstance; or 3) the decision is clearly inappropriate: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 6, 12, 139.

[17] For the reasons outlined below, I am satisfied that there has been a material change in circumstances given the introduction of a psychological report and the novel COVID-19 pandemic.

Material Change in Circumstances

a. The Introduction of a New Surety

[18] Ms. Chonzom, the primary proposed surety, acts as a mother-figure to the applicant. There is no reasonable reason why she was not proffered as a surety in the original bail hearing. Thus, her introduction at this review does not constitute a material change in circumstances: R. v. Ferguson, [2002] O.J. No. 1969 (S.C), at para. 17. However, amidst a global public health crisis, in circumstances where an applicant is otherwise releasable, it is appropriate to relax the rule in Ferguson discouraging the introduction of sureties on review who were available to be put forward at the original hearing. This is not such a circumstance.

b. The Psychological Report

[19] The applicant experiences intellectual deficits. These deficits were thoroughly considered by the Justice of the Peace at the initial bail hearing. However, the justice did not have the benefit of a detailed expert report on the subject. Therefore, the court could not definitively confirm or assess the extent of the applicant's intellectual deficits.

[20] A psychological report was filed for the purpose of this bail review (“the report”). The report reveals the following:

1. The applicant has the unflinching support of a loving family;
2. The applicant does not suffer from mental illness;
3. The applicant has low intellectual functioning;
4. The applicant’s academic capabilities are at the grade-school level;
5. The applicant’s analytical and discriminatory thinking abilities are poor;
6. The applicant needs assistance when faced with unusual social or economic stress;
7. The applicant can function and carry out basic day-to-day life responsibilities;
8. The applicant was bullied as a child;
9. The applicant has low self-esteem and low body image issues;
10. The applicant struggled academically;
11. The applicant has been on several unsuccessful job interviews and has been unable to hold jobs for more than a few weeks; and
12. The applicant is unable to comprehend financial matters or manage his financial affairs.

[21] The applicant also has a criminal record with the following entries:

1. Three convictions for failure to comply with a recognizance in 2011, 2012 and 2015;
2. Convictions for attempted break and enter and failure to comply with a probation order in 2017; and
3. Convictions for assault and theft under $5,000 in 2017.

[22] For his last set of offences, the applicant received credit for 65 days of pre-trial custody and was sentenced to an additional 55 days’ imprisonment with 12 months’ probation.

[23] The report does not link the applicant’s intellectual difficulties with his past criminal antecedents. However, it is reasonable to hypothesize that there is a strong correlation between these factors and the applicant’s criminal record. Since this is only a hypothesis, it plays no role in my analysis.

[24] Nonetheless, I find that the introduction of this psychological report that provides new information detailing the applicant’s intellectual difficulties constitutes a material change in circumstance.

c. The COVID-19 Pandemic

[25] COVID-19 is a serious global health crisis. At the current time, there is no known cure for the virus. Significant aspects of daily human life across the globe has either been halted or significantly reduced. For example, all in-person Ontario Superior Court hearings have been suspended.

[26] I take judicial notice of the following information released by the Government of Ontario describing the state of COVID-19 in Ontario as of April 3, 2020:

1. It is estimated that had no preventative action been taken, the number of COVID-19 cases would have risen to 300,000 infections with 6,000 deaths;
2. Public health and safety measures have avoided an estimated 220,000 infections and 4,400 deaths to date;
3. With the current public health measures in place, Ontario predicts between 3,000 and 15,000 deaths related to COVID-19. Without these measures, 100,000 deaths are projected; and
4. By implementing public health measures, Ontario estimates that the number of COVID-19 cases can be reduced to an additional 12,500 infections and 200 deaths by the end of April 2020.

[27] I find that COVID-19 also constitutes a material change in circumstance. However, this does not result in an automatic release from custody: R. v. J.S., 2020 ONSC 1710; R. v. Nelson, 2020 ONSC 1728; R. v. Jebaili; R. v. C.J., 2020 ONSC 1933, at paras. 8-9; R. v. Joseph Sinclair-Stewart, March 20, 2020 (S.C.); R. v. Laurin, March 16, 2020 (C.J.).

[28] Social distancing has emerged as one of the primary ways of preventing the spread of the virus. It is reasonable to conclude that this will pose a challenge in correctional institutions. The adoption of public health strategies aimed at preventing or reducing the spread of COVID-19 among inmates and staff of correctional institutions is imperative. Correctional authorities’ efforts to combat the potential spread of COVID-19 among inmates is described in R. v. Jeyakanthan, 2020 ONSC 1984, at para. 31. These efforts can be summarized as follows:

1. Suspension of personal visitation, except for visits by professionals, religious and therapeutic volunteers;
2. Increased screening of all persons, including staff, who enter the institutions;
3. Personal Protection Equipment (“PPE”) is worn by medical and correctional staff working in the medical facilities;
4. As mandated by the Ministry of Health, access to PPE is provided to staff as needed and during specific activities;
5. There are thorough hygiene inspections and cleaning of the facilities;
6. A proper handwashing and coughing/sneezing protocol has been instituted;
7. Public health information is posted in inmate areas and other areas;
8. Isolation protocols are in place which will be utilized in the event of a communicable disease outbreak; and
9. Strategies have been adopted to reduce the inmate population.

[29] It is unreasonable to conclude that the adoption of these measures suggests that there can never be an outbreak of COVID-19 among the prison population. Rather, it is reasonable to conclude that these measures suggest correctional authorities are taking prudent public health measures in an attempt to prevent such an outbreak.

[30] As noted, I find that the introduction of the psychological report and the COVID-19 pandemic constitute a material change in circumstances. However, in light of the proposed release plan, I find that the secondary and tertiary ground concerns have not been adequately addressed.

THE RELEASE PLAN

[31] It is proposed that the applicant live at Ms. Chonzom’s residence with his father, Mr. Phuntsok, and his sister. The applicant’s father is also one of the five proposed sureties. His profession takes him away from the home periodically. He pledges $50,000. The other sureties are Ngawang Lobsang, Pema Dechum and Chine Youdon. They are all gainfully employed with close ties to the family. Each of them pledges $50,000. They will not reside with the applicant but will act as supervising sureties. It is apparent that apart from pledging money these sureties will not be involved in the day to day supervision of the applicant.

[32] The primary proposed surety, Ms. Chonzom, is unemployed and is available to supervise the applicant 24 hours a day. The applicant has not heeded Ms. Chonzom’s frequent advice to avoid criminal behaviour.

[33] Ms. Chonzom was untruthful about the nature of her relationship with the applicant’s father, Mr. Phuntsok. She initially testified that she did not have an intimate relationship with him, but later conceded that she had lied to the court because she was uncomfortable about disclosing this. In fact, Ms. Chonzom is beholden to the applicant’s father. Her economic resources are limited, and the applicant’s father provided her with shelter and economic support during her time of need. In addition, there is an understanding between Ms. Chonzom and the applicant’s father that should the applicant not comply with the current release plan, he will reimburse her for any money she may forfeit as a surety. Ms. Chonzom did not pledge any money in her affidavit, but even if she did, she would be reimbursed for any money she lost. In effect, the applicant's father, who on three previous occasions has been unable to exert control as the applicant’s surety, will be the person with effective control over how the applicant is supervised.

[34] Other than the one instance of untruthfulness, Ms. Chonzom provided her testimony in a truthful and forthright manner. However, I find that Ms. Chonzom will not be able to control the applicant. I am also not convinced that she will contact the authorities should the applicant breach the terms of his bail. I therefore find that Ms. Chonzom is not a suitable surety. Since she is the only surety able to provide around-the-clock supervision, the release plan is flawed.

[35] The applicant’s criminal antecedents, including three convictions for breaching court orders, demonstrate that he is not amenable to complying with court orders. Ironically, the severe intellectual deficits revealed by the psychological report may provide an explanation for this. However, this is only a hypothesis and forms no part of my analysis. The applicant’s criminal record speaks for itself.

[36] Electronic monitoring is also proposed as part of the release plan. No detail was provided on when and how the electronic monitoring will be activated. Electronic monitoring is not infallible. However, infallibility is not a prerequisite to suitability. The nature of the technology, how it will be applied, and the circumstances of each case determine whether electronic monitoring will be enough to address any primary, secondary or tertiary ground concerns. In a case such as this, where the applicant has a documented history of non-compliance with court orders, the need for evidence on how electronic monitoring can address these concerns is heightened.

[37] For all of these reasons, I conclude that there is a substantial likelihood that if released, the applicant will commit another offence. The applicant has therefore failed to discharge his onus and his continued detention is warranted on the secondary ground in order to protect the public: Criminal Code, s. 515(10)(b); R. v. Morales, [1992] 3 S.C.R. 711, at p. 737.

[38] In considering the tertiary grounds, the question to be answered is whether the applicant’s continued detention is necessary to maintain confidence in the administration of justice: Criminal Code, s. 515(10)(c). The analytical perspective is that of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law. This includes the presumption of innocence, the right to liberty, and the rights guaranteed by the Charter: St-Cloud, at paras. 72-87.

[39] Applying the four listed criteria in s. 515(10)(c) to evaluate the tertiary ground concern, I conclude:

1. The Crown’s case is strong;
2. The gravity of the offence is serious;
3. The applicant faces a significant jail sentence if convicted; and
4. The circumstances of the case include the discharge of a firearm six times in the direction of the intended victim in a busy public place.

[40] The presence of these factors does not mean that the applicant’s detention is automatic. I must also consider all of the circumstances of the detention which includes the personal circumstances of the applicant: St-Cloud, at paras. 66-71.

[41] The applicant is detained in a correctional institution during a global health crisis. He submits that he suffers from a pre-existing medical condition which makes him particularly susceptible to COVID-19 and significantly reduces his chances of survival should he become infected. To support such an assertion, medical evidence is required to confirm that the applicant suffers from a medical condition that makes him vulnerable to infection and significantly reduces his odds of surviving should an infection occur: Nelson, at para. 41; R. v. Budlakoti, [2020] O.J. No. 1352 (S.C.).

[42] The applicant has provided a doctor’s note stating that he was recently treated for asthma in the correctional institution. The fact that he was treated for asthma is not in dispute, but the Crown submits that this is insufficient evidence. Ordinarily, I would agree. However, certain pre-existing medical conditions are so notorious for increasing susceptibility to COVID-19 and reducing the survival rate from a COVID-19 infection that judicial notice of its effects can be taken. Asthma is one such condition.

[43] I am satisfied that the applicant suffers from asthma. This places him in the category of the population particularly susceptible to a COVID-19 infection and reduced survival from such an infection. Although correctional institutions are taking public health measures to reduce the spread of infection amongst the inmates, visitors and staff, a COVID-19 outbreak cannot be ruled out.

[44] The applicant submits that the psychological report supports the conclusion that at age 28, he has the cognitive abilities of a young offender. I disagree. The report reveals that the applicant has poor intellectual functioning, has no mental illness, requires assistance under unusual social or economic stress, and can function and meet basic day-to-day responsibilities. There is evidence that the applicant has been previously incarcerated as an adult and there is no evidence of any deleterious effects due to his intellectual deficits.

[45] In addition, I have also considered that a release plan has been proposed with an unsuitable surety and that the applicant also has a history of non-compliance with court orders. Electronic monitoring has also been proffered with no detail of how it would be implemented or how it would help provide adequate supervision of an applicant with a history of non-compliance.

[46] When all these factors are considered from the perspective of a reasonable member of the public, as previously described, I conclude on a balance of probabilities that the continued detention of the applicant is necessary to maintain public confidence in the administration of justice. The applicant has therefore failed to discharge his onus and his continued detention is warranted on the tertiary ground: Criminal Code, s. 515(10)(c).

CONCLUSION

[47] For the reasons outlined above, the applicant has failed to discharge his onus. I find that his detention is warranted on the secondary and tertiary grounds. The bail review application is therefore dismissed.

[48] Since the applicant’s asthma places him in the category of the population particularly vulnerable to COVID-19, the correctional institution where he resides should take mandated public health measures to keep him safe.

Justice K. Barnes Released: April 8, 2020