Court File and Parties
Court File No.: CR-20-5-090BR Date: 20200409 Ontario Superior Court of Justice
Between:
HER MAJESTY THE QUEEN, Respondent
- and - P.S., Applicant
Counsel: S. Arnold, for the Respondent Crown M. Kamel and P. Chmiel, for the Applicant
Heard: April 7, 2020 (by teleconference)
Publication Ban: PUBLICATION BAN pursuant to ss. 517(1) and 520(9) of the Criminal Code. [FOR CLARITY - COUNSEL ARE PERMITTED TO CIRCULATE ENDORSEMENT TO OTHER COUNSEL OR USE IN COURT. PUBLICATION AND QUOTATION OF GENERAL PRINCIPLES FROM THE CASE IS PERMITTED. PUBLICATION IS PROHIBITED OF ANY FACTS ABOUT PARTICULAR DEFENDANT’S CHARGES, AND IDENTIFYING INFORMATION ABOUT THE DEFENDANT OR HIS PERSONAL CIRCUMSTANCES]
Croll J.
Reasons for Decision on Application for Review of Detention Order
Introduction
[1] The Applicant, P.S., brings an application to vacate the detention order made by the Justice of the Peace on February 6, 2020. The application was heard by teleconference with consent of the parties. The Registrar arranged the teleconference and a reporter was present with the Registrar in the courtroom to ensure that an audio recording of the hearing was maintained. Both Crown counsel and I dialed in remotely. Defence counsel called in from their office, where the three proposed sureties were available in a boardroom. The Applicant was present on the teleconference from the Toronto South Detention Centre. The Polish interpreter (Mr. M. Wesolowski) was also on the teleconference, although his services were not needed as the Crown did not examine any of the proposed sureties.
Background
[2] It is alleged that on November 22, 2019, the Applicant physically assaulted his wife, the Complainant M.K. The Applicant had been drinking. The Applicant pushed the Complainant out of bed and towards the stairs. She suffered an abrasion to her arm. The Complainant was able to call 911 from outside the house, but upon returning to the house, before the police arrived, the Applicant hit her again, and punched and kicked her.
[3] The Applicant was arrested on November 24, 2019 and released on his own recognizance on November 25, 2019. The terms of that release included the conditions that he have no contact with the Complainant, that he not be within 200 meters of where she lives, works or is known to be.
[4] Then, on November 30, at 4:00 a.m., it is alleged that the Applicant used a ladder to access the second-floor balcony of the Complainant’s residence. He began banging on the door and window to be allowed in. The Applicant entered the home by force, causing various building supplies that were there, due to renovations, to fall upon the Complainant. The Applicant grabbed the Complainant by the wrists and shook her. The noise woke up the Complainant’s 22 year-old son, who intervened to protect his mother. The Applicant then apparently threatened to kill the Complainant’s son, and to put the Complainant in a wheelchair. The Applicant’s sister, who also lived at that address, was awoken by the noise and was able to calm down the Applicant.
[5] On December 3, 2019, the Applicant turned himself in, and was arrested and held for a show because hearing. At that time, the Applicant was released on a global recognizance, with the condition of no contact or communication in any way with the Complainant or her son. There was also a curfew imposed at this time, requiring the Applicant to remain in his residence between 11:00 p.m. and 6:00 a.m., unless he was with one of his two sureties, namely his business partner or his father.
[6] Then on January 31, 2020, at 12:30 a.m., the Applicant went back to the Complainant’s residence and had contact with both the Complainant and her son. He returned to the residence the next day, February 1, 2020, and then again on February 2, 2020. There is no evidence of physical violence on those dates. On those dates, the Applicant was in breach of the conditions not to be at the residence, not to have contact with the Complainant and in breach of the terms of his curfew. The Applicant was again arrested, and was detained after a bail hearing before the Justice of the Peace on February 6, 2020.
Bail Review
[7] There were two proposed sureties before the JP on February 6th, namely the Applicant’s aunt, A.S. and his cousin, M.S. The Applicant today proposes a new third surety, his uncle and godfather, R.S. The plan today also includes electronic monitoring, specifically a GPS tracking ankle bracelet provided by Recovery Science. The Applicant submits that the new plan, together with the COVID-19 pandemic, constitute a change of circumstances that allow for review of his detention order.
[8] The Crown position is that the changes to the proposed plan of release do not amount to material change. However, the Crown properly acknowledges that the significant current risk posed by the coronavirus is a material change. Consequently, bail release should be revisited de novo. R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 at paras. 122-139.
[9] That said, the Crown opposes release on the basis of the secondary ground. This is a reverse onus situation, and the onus is on the Applicant to show that if released, he would not be a risk to the public, including by reoffending or interfering with the administration of justice.
[10] The plan proposed before the JP involved two of the three sureties proposed today. It provided for a plan of house arrest, with the Applicant living with his aunt, A.S., and not being outside the home without one of either the aunt or his cousin, M.S. However, the proposal before the JP contemplated an exception for the Applicant’s prescheduled work obligations, with conditions requiring the Applicant to carry his schedule with him. The supervision while the Applicant was working would be based on telephone checks. The reasons of the JP indicated that he did not consider that the plan as proposed would satisfy the secondary ground concerns.
[11] As stated, the proposal today involves three sureties, the Applicant’s aunt, A.S., and his cousin, M.S, along with his uncle, R.S. Notably, A.S. is prepared to be liable in the amount of $25,000, and M.S. and R.S. in the amount of $10,000 each, in case the Applicant should breach his bail. The Applicant will be subject to strict house arrest, in that there will be no exception for work. He must remain in his aunt’s residence at all times, and can only leave the premises in the company of a surety. Pursuant to the proposed plan, if the aunt must leave the residence, one of the other sureties must attend at her residence prior to her leaving so that the Applicant is not left there alone. The proposed plan includes electronic monitoring so that the police will be informed if the Applicant does not comply with the terms of release. It also will include alerts should the Applicant tamper with his monitoring bracelet.
[12] I recognize that the ankle bracelet is not fail-safe and cannot prevent a person from breaching the terms of bail and committing an offence. I have reviewed the caselaw provided where electronic monitoring has been considered both a useful adjunct to a surety plan, and where it has been rejected as adding no real protection in particular circumstances. In this case, I share the view expressed in R v T.L., 2020 ONSC 1885 at para 22:
However, just because it would be possible to commit a crime while on bail, notwithstanding an ankle bracelet, does not mean that an ankle bracelet is not a useful supervision tool in many bail situations. It has, at the very least, a psychological deterrent effect. Mr. L. will know that any breach, no matter how minor, will be detected and reported. He will have no illusions about his sureties not betraying him. The electronic bracelet will not be swayed by emotion. I believe the ankle bracelet also reinforces for the sureties and other people in the home the importance of strict compliance with the terms of the bail.
[13] The Crown has referred me to the recent decision in R v Hastings, 2020 ONSC 2083, where the accused was detained, despite a revised plan that included electronic monitoring and despite consideration of the seriousness of the COVID-19 pandemic, especially within the confined quarters and restrictions of a detention facility. The Crown submits that Hastings is factually similar to this case, given that it too dealt with intimate partner violence. With respect, I consider that the two cases are largely distinguishable.
[14] In particular, in Hastings, while on release for domestic violence offences, the accused engaged police in a high speed chase after being directed to pull over because of driving at an excessive speed. The accused escaped at that time. This offence occurred on July 8, 2019. Then the accused was identified as the person who broke into a commercial building on July 19, 2019. On July 22, 2019, the accused was sitting in a van outside his girlfriend’s home, and she called police. The van struck the police car when it arrived and fled at high speed. The van hit another car, and the van driver ran away and was not apprehended. A warrant was issued for the accused’s arrest. The accused then failed to appear in court on July 31, 2019 in relation to an earlier attendance at his girlfriend’s home. He was then seen in North Bay in August 2019, where he fled from police, but was apprehended and charged with numerous offences.
[15] In sum, the accused in Hastings demonstrated a willingness to evade police capture in order to avoid being returned to custody. Given the efficacy of electronic monitoring, the court determined it was not appropriate on those facts. The facts before me today are quite different.
[16] Further, in Hastings, it appeared that the accused was not yet approaching the point at which he would likely receive a sentence of time served if convicted.
[17] In this case, the Applicant has no criminal record. He has been in custody at the Toronto South Detention Centre since February 2, 2020 — some 65 days. Given that there is uncertainty as to when the Court will reopen, and the significant backlog of cases that is building, it is fair to say that the Applicant’s trial will be several months from now, if not longer. This too is a factor to be considered in the bail review calculus. (R v Meyers, 2019 SCC 18 at paras. 50-53).
[18] Further, defence counsel has advised that he is informed by the Applicant that on February 27, 2020, while in custody, a Dr. Shedletzky performed a blood test and diagnosed the Applicant with Type 2 diabetes, and that the Applicant has since been prescribed metformin. While defence has not provided any direct evidence of the increased risk of COVID-19 to the Applicant, in my view it is appropriate to take judicial notice of the fact that COVID-19 can cause more severe symptoms and complications in some people who have underlying health conditions.
[19] In any event, with respect, I do not share the view expressed in some recent cases to which the Crown refers, that medical evidence is required to establish that an accused person in detention is at increased risk of contracting the disease, and that to find increased risk without such evidence would be speculative. As stated in R v CJ, 2020 ONSC 1933, at para. 9,
… it is incontrovertible that a jail setting is not conducive to the types of physical distancing and other safety measures being recommended by all of the health authorities to help protect oneself against the virus. To demand some “evidence” in support of that is, with respect to any contrarian view, unnecessary.
[20] In my view, the plan as proposed is a strong one, and different than that which was before the JP. It is a very strict house arrest. The Applicant must be present in the company of one of his sureties at all times. If the aunt, A.S., with whom he lives, must leave the house, one or the other of the sureties must attend the home in her place. The amounts pledged by each surety are significant. Each will have a strong motivation to scrupulously supervise bail and to contact the police if required, as they are each at risk of losing a significant amount of their savings. When coupled with the strength of the house arrest and surety supervision, I am of the view that the electronic monitoring is an effective additional tool. As well, the Applicant will be prohibited from consuming alcohol, which apparently has been a trigger for at least some of his conduct.
[21] For all these reasons, I am satisfied that the Applicant has satisfied his onus on the secondary grounds.
Terms of Release
[22] This Court orders the release from custody of P.S. on a Recognizance of Bail, with three sureties, namely his aunt, A.S. in the amount of $25,000; his cousin, M.S. in the amount of $10,000; and his uncle, R.S. in the amount of $10,000, on the following terms:
a. The Applicant shall reside with A.S. at 2111 Lakeshore Boulevard West, Unit #1106, Toronto, Ontario;
b. The Applicant shall remain in the residence at 2111 Lakeshore Boulevard West, Unit #1106, Toronto at all times in the presence of one or more of A.S., M.S. or R.S. except: (i) if there is a medical emergency AND in the presence of one or more of A.S., M.S. or R.S.; and (ii) if in attendance at court, or meeting with counsel AND in the presence of one or more of A.S., M.S. or R.S. or defence counsel; and (iii) the Applicant should provide proof of medical emergency or court attendance or meeting with counsel if requested to do so by a peace officer;
c. The Applicant shall attend court as necessary;
d. The Applicant shall surrender all travel documents, including passports to the officer in charge within 24 hours and not apply for any travel documents;
e. At the Applicant’s expense, he shall be monitored by Recovery Science Corporation ("RSC"), which shall include bracelet tampering alert notifications, according to the following conditions:
i. Enter into RSC's Participant Agreement and comply with its terms. Ensure that RSC procedure is that in the event of an alert, notification will be sent directly to the officer-in-charge or his or her designate;
ii. Wear a GPS ankle bracelet at all times;
iii. Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary;
iv. Comply with RSC leave notification and battery charging requirements; and
v. Cooperate and comply with all RSC requirements and staff directions;
f. To arrange for the installation of the GPS monitoring of the Applicant, the Applicant is to be released from the Toronto South Detention Center into the care of one or more of the sureties A.S., M.S., or R. S. who shall deliver the Applicant forthwith to Recovery Science for the purpose of installing the GPS monitoring device. Upon completion of the necessary installation, one or more of the sureties shall immediately deliver the Applicant to 2111 Lakeshore Boulevard West, Unit 1106 to commence the plan of release.
g. The Applicant shall not possess a weapon, firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance weapons or ammunition as defined by the Criminal Code;
h. The Applicant shall not possess or consume alcoholic beverages or non-medically prescribed drugs;
i. The Applicant shall not have any contact, direct or indirect with the Complainants in this matter, namely M.K. or P.T., or to be within 500 meters of their respective place of work or where he or she is known to habituate or to be;
j. The Applicant shall keep a copy of the recognizance on his person at all times; and
k. The Applicant shall present at the front door of 2111 Lakeshore Boulevard West, Unit 1106, Toronto within 5 minutes of law enforcement attending to ensure that the Applicant is in compliance with the terms of release.
[23] Finally, and importantly, I thank all counsel, the interpreter, the Registrar and the reporter for their diligent service in these challenging times.
Croll J.