Court File and Parties
COURT FILE NO.: DR (P) 208/20 DATE: 20200415
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Mr. A. Bernstein, for the Crown / Respondent Respondent
- and -
ADRIAN WILLIAMS Ms. M. Addie and Mr. J. Kopman, for the Accused / Applicant Applicant
HEARD: April 9, 2020, via audio conference
Reasons for Decision on Bail Application
STRIBOPOULOS J.
Introduction
[1] On the early morning of November 13, 2018, Jason Ramkishun was driving home from work. As he travelled northbound on Highway 410, a Dodge Durango SUV pulled up beside him. From that vehicle, someone fired seven shots from a .45 calibre handgun. Mr. Ramkishun was struck once in the torso, causing him to lose control of his car and careen into a ditch. Despite timely assistance by members of the public and first responders, Mr. Ramkishun was pronounced dead shortly after being transported to the hospital.
[2] A week later, just before midnight on the evening of November 20, 2018, Destiny Meyler was also travelling in the northbound lanes of Highway 410. A Jaguar pulled up beside him. From that vehicle, assailants fired as many as 18 rounds at him from two different firearms. Although struck by one of the shots, Mr. Meyler managed to keep driving and went directly to Brampton Civic Hospital.
[3] At the hospital, medical staff and police located Mr. Meyler in his car suffering from a gunshot wound to the hip. In his vehicle, police found a loaded .22 calibre rifle. Mr. Meyler was transported to Sunnybrook Health Sciences Centre for treatment and survived. He was arrested and charged with a variety of firearms offences.
[4] The two shootings are connected. Ballistics analysis links some of the bullets fired at Mr. Ramkishun and Mr. Meyler to the same .45 calibre handgun since recovered by police. The two victims also drove virtually identical vehicles, dark grey late-model Honda Accord sedans. Additionally, the attacks on both victims occurred after each had left the Malton area and travelled the same route towards Brampton.
[5] It appears that Mr. Meyler was the intended target of both attacks. Three days before the killing of Mr. Ramkishun, on November 10, 2018, there was an altercation between Mr. Meyler and a group of individuals. It culminated in an exchange of gunfire on a residential street in the Malton neighbourhood of Mississauga. The murder of Mr. Ramkishun, an entirely innocent law-abiding member of the public, was the apparent result of his killer mistaking him for Mr. Meyler.
[6] Mr. Williams faces charges of first-degree murder for the killing of Mr. Ramkishun and attempted murder for the shooting of Mr. Meyler. He was arrested and charged with these offences on January 28, 2020. Due to the charge of murder, an offence listed in s. 469 of the Criminal Code, R.S.C., 1985, c. C-46, after his arrest, Mr. Williams was ordered detained and remanded in custody: see Criminal Code, s. 515(11). He now applies under s. 522(1) of the Criminal Code for his release on bail.
[7] These are truly extraordinary times. In recent weeks, the COVID-19 pandemic has fundamentally altered life in Canada and throughout most of the world. With the consent of the parties, this application was heard by teleconference, with the witnesses testifying by telephone. COVID-19 influenced not only the procedure followed during the hearing of this application but was also a significant focus of the evidence and submissions.
[8] Uncontradicted expert medical evidence from an epidemiologist forms part of the record on this application. That evidence suggests that the virus will inevitably make its way into every detention centre and correctional facility in the province. Absent a drastic reduction in the number of people held in custody, social distancing in crowded custodial settings will prove impossible, putting every inmate and staff member in such facilities at significant risk of infection with this life-threatening virus. Should this occur, it could contribute to overwhelming our already overburdened healthcare system. Therefore, releasing as many people as possible from our detention centres and correctional facilities is now a matter of life and death.
[9] On this application, this court must order Mr. Williams' detention unless he "shows cause why his detention in custody is not justified within the meaning of subsection 515(10)": Criminal Code, s. 522(2). The question to be decided on this application is whether or not Mr. Williams has discharged that burden. More specifically, given the position of the parties, whether he has shown that if released, he will not pose a threat to public safety: Criminal Code, s. 515(10)(b). And, further, having regard to all of the circumstances, including the ongoing pandemic, whether he has shown that his detention is not necessary to maintain confidence in the administration of justice: Criminal Code, s. 515(10)(c).
[10] These reasons will proceed in five parts. The first part provides an overview of the Crown's case against Mr. Williams. His circumstances, along with his proposed plan of release, are detailed in the second part. The third part summarizes the uncontradicted medical evidence that formed part of the record on this hearing. The fourth part summarizes the position of the parties on this application. Finally, these reasons will turn to consider whether Mr. Williams has discharged his burden of showing that his detention is not justified.
I. The Case for the Crown
[11] The Crown called Detective Robert Bryant to testify on this application. He gave evidence about the police investigation and summarized the evidence collected that appears to implicate Mr. Williams in the crimes charged.
[12] The Crown's case against Mr. Williams consists of both circumstantial and direct evidence. The circumstantial evidence furnishes a strong basis for concluding that Mr. Williams had the motive, opportunity, and means to commit the crimes charged. Further, evidence regarding Mr. Williams’ conduct after Mr. Ramkishun's murder is suggestive of his involvement in that crime. Finally, there is direct evidence that, if accepted, would deal a decisive blow against Mr. Williams in this prosecution.
i) Motive
[13] Mr. Meyler has cooperated with the police. On his account, at around 11:00 p.m. on November 10, 2018, he saw Travon Edwards-Bryan at a Shell gas station in Malton. They were acquainted with one another from "the street" but were never friends. The two men were across the street from one another, and they locked eyes.
[14] A short time later, Mr. Meyler was driving in a residential neighbourhood in Malton. As he drove, he noticed Mr. Edwards-Bryan's vehicle travelling behind him. After making a couple of turns, with the car still behind him, Mr. Meyler concluded that Mr. Edwards-Bryan was following him. In the circles that Mr. Meyler frequents, this would seem to have been enough for him to think he faced a threat.
[15] Mr. Meyler responded by stopping and exiting his car, then pointing a firearm at Mr. Edwards-Bryan's vehicle. In response, Mr. Edwards-Bryan reversed at a high rate of speed and, in the process, crashed the car he was driving, a stolen Volvo X90. The occupants of the Volvo exited their vehicle. They then exchanged gunfire with Mr. Meyler. No one was injured. With the Volvo wrecked, its former occupants fled the scene on foot.
[16] In response to a call reporting gunfire, police attended the location where they found the damaged Volvo. During a search of the area, police also recovered a wallet belonging to Teshawn Tulloch.
[17] There is a connection between Mr. Edwards-Bryan, Mr. Tulloch and Mr. Williams. When police executed a warrant at a condominium in Toronto on December 1, 2018, to arrest Mr. Edwards-Bryan for the events of November 10, 2018, Mr. Tulloch and Mr. Williams were also present.
[18] At the condominium, police seized a cellphone from Mr. Williams. The cellphone was eventually subject to forensic examination under the authority of a warrant. The evidence suggests that the phone belonged to Mr. Williams. Beyond police finding it on him, its contents, along with voice identification evidence linking Mr. Williams to a call made from it, support a finding that Mr. Williams was the person using that phone in November 2018.
[19] A forensic examination of that cellphone reveals that Mr. Williams was in regular contact with Mr. Edwards-Bryan. Importantly, GPS data from the cellphone, along with information gleaned from the cellular towers the phone connected with on the evening of November 10, 2018, places Mr. Williams in the vicinity of the residential street where Mr. Meyler exchanged gunfire with the occupants of the stolen Volvo.
[20] This collection of evidence provides a basis for finding that Mr. Williams was one of the occupants of the stolen Volvo on the evening of November 10, 2018. Therefore, he would seem to be someone with a motive to harm Mr. Meyler in retaliation for his actions that evening.
ii) Opportunity
[21] The GPS data from Mr. Williams' cellphone and information gleaned from the cellular towers that phone accessed reveals that he also had the opportunity to commit the crimes charged.
[22] Mr. Williams' cellphone places him in Malton on the evening of November 12, 2018. That is the same area of Mississauga where Mr. Meyler has longstanding ties. The police believe Mr. Williams was in Malton that night searching for Mr. Meyler.
[23] That evening, Mr. Ramkishun was working as a security guard in Malton. He finished work at 12:30 a.m. and ten minutes later, he started his drive home. Eventually, Mr. Ramkishun made his way to Highway 401 westbound, where he exited onto Highway 410 northbound, the route to his residence in Brampton.
[24] As mentioned, the attack on Mr. Ramkishun took place while he drove northbound on Highway 410. The shooting occurred at 12:53 a.m., where Highway 410 intersects with Courtneypark Drive. (Police know the precise time because of dashcam recordings from a vehicle travelling behind Mr. Ramkishun's car when the shooting took place.)
[25] The GPS data from Mr. Williams' cellphone, along with the cellular towers accessed by his phone, reveal his movements that morning. The phone tracks along the same route travelled by Mr. Ramkishun, westbound on Highway 401, before heading northbound on Highway 410. Importantly, the phone was in the vicinity of Highway 410 and Courtneypark Drive at the precise time of Mr. Ramkishun's murder.
[26] On the evening of November 20, 2018, Mr. Meyler was in the Malton area visiting a friend. Information gleaned from Mr. Williams' cellphone and the cellphone towers it accessed also places him in Malton that evening. The police believe that he was there again in search of Mr. Meyler.
[27] Mr. Meyler left his friend's residence at 11:00 p.m. on November 20, 2018. He travelled southbound on Highway 427, before entering Highway 401 westbound, and then taking Highway 410 northbound. According to Mr. Meyler, he noticed a light-coloured Jaguar with two occupants travelling behind him as he entered onto Highway 427 southbound in Malton.
[28] As Mr. Meyler was travelling northbound on Highway 410, just under the Highway 407 overpass, he noticed the same Jaguar pull alongside him on the driver's side of his vehicle. He thought a second vehicle might also be travelling with the Jaguar. As the Jaguar pulled up next to him, someone began shooting at him. Although he was shot, Mr. Meyler managed to maintain control of his vehicle and continue travelling northbound on Highway 410.
[29] According to Mr. Meyler, after the shooting, he noticed the Jaguar and a second vehicle exiting Highway 410 at Steeles Avenue. Police have recovered video from the area of Steeles Avenue East and Tomken Road from just after the shooting. It shows a silver Jaguar, occupied by Mr. Williams and his brother, Akeem Williams, entering into the intersection before making a U-turn and heading westbound on Steeles Avenue. At the very same time, the video also shows a second vehicle making a U-turn at that intersection.
[30] Therefore, it would appear that Mr. Williams was in the vicinity when both crimes took place. In short, the evidence is consistent with him having the opportunity to commit the offences charged.
iii) Means
[31] As noted, a video recording captured the attack on Mr. Ramkishun on the morning of November 13, 2018. A vehicle also heading northbound on Highway 410 at the time had video recording equipment installed at both the front and rear. That vehicle was travelling behind Mr. Ramkishun.
[32] Video from the rear camera on that vehicle shows a late-model, dark-coloured Dodge Durango SUV, with no front licence plate, approach from behind at a high rate of speed. It overtakes the vehicle equipped with the video recording equipment before pulling next to Mr. Ramkishun's car and slowing to travel next to him. The shooting then occurs and is captured on video. Unfortunately, one cannot discern from the recordings how many people were in the Durango at the time or the vehicle's licence plate number.
[33] On November 10, 2018, Mr. Williams' girlfriend, Janique Elwood, rented a black 2018 Dodge Durango from Enterprise Rent-a-Car at Pearson International Airport. Registered in Quebec, that vehicle, like the one used during the attack on Mr. Ramkishun, did not have a front licence plate.
[34] Police have determined that at that time, Ms. Elwood routinely drove a different vehicle. There is evidence to suggest that Ms. Elwood was in the habit of renting cars for Mr. Williams. The police believe the Durango was such a vehicle.
[35] On November 11, 2018, a woman with whom Mr. Williams' brother, Akeem, has a child, rented a silver 2018 Jaguar. Akeem Williams lives in a building in Mississauga. There are two parking spots assigned to his unit.
[36] On November 12, 2018, video surveillance from the parking garage at Akeem Williams' building recorded a black late-model Dodge Durango SUV, with no front licence plate, and a silver late-model Jaguar entering the parking garage in tandem. The vehicles parked in the two spots assigned to the unit occupied by Akeem Williams.
[37] Evidence gleaned from their cellphones, along with cellular tower evidence, places Mr. Williams, Akeem Williams, and Mr. Edwards-Bryan together on the morning of November 12, 2018. It also puts them together in Malton on the evening of November 12, 2018, when police believe they were looking for Mr. Meyler.
[38] This collection of evidence suggests that Mr. Williams had access to a black late-model Dodge Durango SUV, with no front licence plate, at the time of Mr. Ramkishun's murder, and, it would seem, a silver late-model Jaguar at the time of the attack on Mr. Meyler.
[39] Police have recovered the .45 calibre handgun linked to both the murder of Mr. Ramkishun and the shooting of Mr. Meyler. That firearm has a laser sight mounted on it. There is evidence to suggest that Mr. Williams had access to such a handgun in November 2018.
[40] First, when police arrested Mr. Edwards-Bryan on December 1, 2018, they seized his cellphone. (Recall that police arrested Mr. Williams at the same time and also seized his phone). On Mr. Edwards-Bryan's phone, police discovered numerous photographs and video recordings of firearms.
[41] One of the video recordings shows a handgun that matches the appearance of the murder weapon, including having a laser sight. From that recording, some of the digits from the serial number of the handgun are visible. These numbers match the serial number of the .45 calibre handgun connected to the murder of Mr. Ramkishun and the shooting of Mr. Meyler.
[42] Second, police were able to retrieve a Snapchat recording from Mr. Williams' cellphone. In that recording, made within days of the attack on Mr. Meyler, Mr. Williams is communicating with an unidentified user on Snapchat. In that recording, Mr. Williams is offering an item for sale, which he describes as: "A .45 with beam and grain." The police believe this is a reference to a .45 calibre handgun, with a laser beam sight (“beam”) and bullets ("grain").
[43] This collection of evidence suggests that during the timeframe corresponding with the commission of the offences, Mr. Williams had access to the firearm and types of vehicles used to commit the crimes charged.
iv) After-the-Fact Conduct
[44] There is evidence from which a trier of fact could conclude that Mr. Williams' behaviour after the murder of Mr. Ramkishun is consistent with his involvement in that crime.
[45] First, there is evidence that in the aftermath of the murder, Mr. Williams spent several hours at his mother's residence in Brampton before then travelling to Sudbury with Ms. Elwood.
[46] Second, while in Sudbury on November 13, 2018, Mr. Williams' cellphone shows him conducting a Google search. He searched for "410 shooting last night." The phone does not reveal that Mr. Williams was in the habit of searching for news stories.
[47] Third, on November 14, 2018, it would appear that Mr. Williams and Ms. Elwood travelled directly from Sudbury to Pearson International Airport. At the airport, although the Dodge Durango SUV was not due to be returned until November 16, 2018, she exchanged it for a BMW. There is evidence connecting Mr. Williams to that BMW when it was crashed a few days later and then reported as stolen.
[48] Finally, the forensic examination of Mr. Williams' cellphone shows that the text messages and call log on that phone from November 10 to November 13, 2018, had been erased.
[49] This collection of evidence suggests that Mr. Williams engaged in conduct after Mr. Ramkishun's murder that is consistent with his involvement in that crime.
v) Confession
[50] A witness provided a statement to police in December 2019 in which she reports that in November 2018, Mr. Williams admitted responsibility for the killing of Mr. Ramkishun and the shooting of Mr. Meyler.
[51] If a jury were to accept the testimony of this witness, which is corroborated by the circumstantial evidence that also serves to implicate Mr. Williams, he would undoubtedly be found guilty of the crimes for which he faces charges.
II. Mr. Williams and His Release Plan
[52] Mr. Williams is 26 years of age. He was born and raised in Canada, the youngest of four siblings. Before his arrest, Mr. Williams was living in Brampton with his parents and one of his older brothers.
[53] Mr. Williams has three children of his own, two of whom are just toddlers. All three children reside with their mothers.
[54] It would not appear that Mr. Williams has ever maintained gainful employment. Instead, he has spent most of his late teens and early twenties in custody, either serving sentences or awaiting trial. That includes three years spent in pre-trial detention while facing a charge of murder for which he was found not guilty, and a year awaiting trial for a firearm offence before the Crown withdrew that charge.
[55] Of course, charges that were never proven can have no bearing on a bail application. I mention these only to explain Mr. Williams' life circumstances in recent years – for example, his lack of any apparent employment history.
[56] Mr. Williams has a criminal record that dates back to his youth. It includes entries for theft, possessing controlled substances, trafficking in a controlled substance, dangerous driving, and driving while disqualified. He also has two convictions for failing to comply with a recognizance, the first from January 2012 and the second from February 2014. Finally, Mr. Williams also breached the terms of a conditional sentence order in May of 2014.
[57] It would appear that the two bail breaches and the breach of the conditional sentence order each involved non-compliance with conditions requiring Mr. Williams to remain inside his residence. During their testimony on this application, both Mr. Williams and his mother addressed these breaches.
[58] Mr. Williams explained that he was young and immature at that time. He testified that he did not grasp the significance of his bail conditions or the implications for his parents, who were his sureties, of him breaching these orders. He insisted that he has matured over the intervening years, noting that unlike then, he is now a father.
[59] As further evidence of his increased maturity, Mr. Williams testified that when he was most recently on bail facing a firearm charge, on a bail review, the Crown successfully sought his detention. The judge ordered him to surrender into custody. Mr. Williams testified that he complied with the judge's direction and surrendered into custody. No arrest warrant was necessary. Ms. Addie confirmed these events with the lawyer who represented Mr. Williams at the time.
[60] The prior bail breaches occurred when Mr. Williams' parents were acting as his sureties. His mother testified that she never acquiesced in her son breaching bail. Rather, she explained that the breaches involved Mr. Williams sneaking out of the house after she had gone to bed.
[61] Should Mr. Williams be ordered released on bail, both his parents are again prepared to act as his sureties. Each is gainfully employed, and neither has a criminal record. His mother owns the family's home in which she has a substantial amount of equity invested. She is prepared to pledge $100,000 to secure her son's release from custody, and even more if that is necessary. She testified that she would not hesitate to call the police if Mr. Williams was not complying with the conditions of his release, noting that she would not risk her life savings to protect her son.
[62] The bail proposal is for Mr. Williams to reside in the family home and to remain there at all times, with the only exceptions being for medical emergencies, attending court, and meeting with counsel. As between Mr. Williams' parents and his older brother, who also does not have a criminal record, a member of the family would be home with Mr. Williams at all times.
[63] Finally, to ensure compliance with the home confinement condition, arrangements have been made for Mr. Williams to wear a GPS ankle bracelet while on bail. That system will notify the monitoring company should Mr. Williams attempt to remove the device or leave his residence. The monitoring company provides the police with timely notification of any apparent breach, and the system can also be programmed to alert the police directly.
[64] During his testimony on this application, Mr. Williams assured the court that he would faithfully comply with any bail conditions because he would not risk his parents losing their life savings. Nor would he jeopardize his health by inviting his arrest and return to custody during the COVID-19 pandemic.
III. Expert Evidence Regarding COVID-19
[65] On this application, defence counsel filed an affidavit from Dr. Aaron Orkin, a physician and epidemiologist. Dr. Orkin is also an Assistant Professor in the Department of Family and Community Medicine at the University of Toronto.
[66] Dr. Orkin is a clinician-scientist. As such, he spends a large portion of his time conducting research. His research focuses on health equity and vulnerable populations, especially concerning the homeless, drug users, and Indigenous communities.
[67] In terms of clinical experience, Dr. Orkin practices emergency medicine at two Toronto hospitals (St. Joseph’s Health Centre and Humber River Hospital). He also serves as the Population Medicine Lead for Inner City Health Associates, an organization providing health services to Toronto's homeless population.
[68] Dr. Orkin has specific expertise relating to the COVID-19 epidemic. He is the Medical Director of the St. Joseph’s Health Centre COVID-19 Assessment Centre. Additionally, as the Population Medicine Lead for Inner City Health Associates, he has a central role in planning and implementing a strategy to respond to COVID-19 among Toronto's homeless population.
[69] Dr. Orkin's affidavit is detailed and disturbing. It describes the inevitability of COVID-19 finding its way into our detention centres and correctional facilities. It goes on to explain the implications, once this occurs, not only for the health of inmates and staff but for our healthcare system. Dr. Orkin's expert opinions, most relevant to this application, are summarized below.
[70] Comparatively, the health of those incarcerated is substantially worse than the rest of the public. People in detention have higher rates of chronic disease, including cardiorespiratory disease, mental health challenges and addiction. Consequently, the incarcerated have a higher chance of intensive-care admission or death if they contract COVID-19.
[71] There is no specific treatment or therapy for COVID-19. Therefore, the COVID-19 pandemic cannot be managed or mitigated using clinical interventions. The only effective means of combatting the impact of COVID-19 is by using population health strategies.
[72] The central strategy for the population health management of COVID-19 is to “flatten the curve.” The goal is to take measures to reduce the incidence of new cases, that is, the number of people who become infected on any given day. The objective is to reduce the risk of the healthcare system’s most vital resources becoming overwhelmed by a sudden influx of sick people requiring intensive care and scarce resources. If overwhelming the healthcare system can be avoided, fewer people will die.
[73] The key measure for flattening the curve is social distancing. It requires reducing social contact. In Ontario and across Canada, various public health orders have been put in place to implement these measures, such as closing schools, prohibiting gatherings of more than five people, and closing all non-essential workplaces.
[74] Two meters of physical distance between people is considered an absolute minimum for appropriate social distancing to reduce COVID-19 transmission. However, that distance has not been subject to study for long-term exposure (such as sleeping arrangements). It does not refer to vertical separation (such as on bunk beds, where droplets can fall on a person sleeping on a lower bunk).
[75] Overcrowding and social distancing are mutually exclusive concepts. In other words, social distancing is not possible where there is overcrowding.
[76] From a population health strategy perspective, as well as an individual health perspective, when it comes to COVID-19 transmission, there is no substitute for appropriate social distancing. Lockdowns, hand hygiene, masks, screening for symptoms on entry, cleaning and other interventions are all important, but much less effective. Insufficient social distancing is therefore dangerous to individual and community health.
[77] A “congregate living facility” is a public health term referring to settings where people live together, such as long-term care facilities, homeless shelters, military barracks, or custodial facilities. Preventing outbreaks in congregate living facilities is a top priority to flatten the curve for four reasons:
(1) Outbreaks in tight spaces happen extremely quickly and are near impossible to control once they occur. Global experiences with cruise ships are a case-in-point.
(2) People living in congregate living facilities tend to have underlying health conditions that make them more prone to serious adverse outcomes (i.e. admission to an Intensive Care Unit or death) from COVID-19. This is true in long-term care facilities, homeless shelters, and custodial settings.
(3) Outbreaks in congregate living facilities can overwhelm healthcare systems, meaning that congregate living outbreaks consume scarce resources before the epidemic takes hold in the general population.
(4) Outbreaks in congregate living facilities serve as fuel for the fire in more generalized outbreaks. Unlike cruise ships, people in congregate living settings, including the staff who work there, transfer disease into the wider community. Therefore, preventing infection in congregate living facilities is critical for flattening the curve across the entire population. As a result, protecting congregate living settings and preventing outbreaks there is about protecting the health of the community as a whole.
[78] Experience with cruise ships, hospitals and long-term care facilities show us that it is extremely difficult, if not nearly impossible, to limit a COVID-19 outbreak in congregate living settings. Especially in those with close quarters, shared toileting and eating facilities, or service personnel moving between people confined to their rooms (who serve as vectors).
[79] As a result, it is Dr. Orkin's opinion that it is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada, and therefore extremely likely that almost all inmates in these settings will face exposure in one way or another. The only available method to substantially reduce the resulting infections and deaths is, therefore, to reduce the population in those settings.
[80] COVID-19 survives between a few hours and a few days on surfaces such as plastic and metal. For this reason, social distancing measures have also included the closure of public facilities such as playgrounds and restaurants. Continuous cleaning is required to reduce disease transmission on high-touch surfaces where people gather. This kind of constant cleaning does not and cannot occur in correctional facilities.
[81] The degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently held in these facilities. The problem is one of geometry, not a policy or strategy problem. There simply is not enough space to create the distance required between people in Ontario's detention centres and correctional facilities.
[82] The living space available for people experiencing incarceration divided by the number of people living in that space must amount to at least a distance of two meters between individuals at all times. The use of bunk beds is not conducive to maintaining social distance. Shared facilities such as toilets, telephones, dining spaces etc. represent additional hazards.
[83] Insufficient social distancing in custodial settings is hazardous to the health of those held in custody. That is true for all inmates of such facilities, but particularly true for people with underlying health problems.
[84] Therefore, reducing the population of individuals held in custody who are in good health is essential to protecting the health of those incarcerated who are in poor health. In the context of the COVID-19 pandemic, putting healthy people into correctional facilities threatens the health of the most vulnerable who are already there.
[85] Despite social distancing and other efforts, COVID-19 will likely make its way into all of our custodial facilities. Due to strict limitations on the availability of hospital and healthcare spaces, people in such facilities with mild symptoms will likely need to convalesce and recover in isolation in those facilities. In the presence of individuals with active and known infection, outbreak control is even more critical and challenging than in the context of initial infection prevention. There is a crucial need for more space and social distancing in advance of this eventuality.
[86] COVID-19 will generate significant human resource shortages in all areas, including corrections personnel, due to self-isolation, illness and absenteeism. Reducing populations in custodial facilities may also be necessary to maintain safety with reduced staffing.
[87] Therefore, every admission into custody that is prevented is an opportunity to flatten the curve and improve health for the individual involved, other inmates and staff in the facility in question, and the public. Stated otherwise, unnecessary admissions to correctional facilities are a health hazard for everyone in the context of the COVID-19 pandemic.
[88] Similarly, every person released from a correctional facility to a private residence aids in flattening the curve and improving the health for the individual involved, other inmates and staff at the facility in question, and the public. Reducing the existing population of those held in detention — especially those who are healthy and able to self-isolate in lower density private residences — will reduce the population density in such facilities. That will reduce the risk of infection for those released and those who remain in custody.
[89] Dr. Orkin's opinion about the need to reduce the population in our custodial facilities is not dependant on the state of any particular inmate's health. Whether an inmate is old or young, frail or robust, in good health or suffering from pre-existing conditions, his opinion remains the same. In his view, from a public health perspective, during the current pandemic, it would always be in the best interests not only of the inmate released but of the community at large to release an inmate to a less populated environment such as their own home.
[90] On this application, the Crown also filed a document, dated April 7, 2020, entitled "Response to COVID-19 Information Note." The author is the "Institutional Services Division, Assistant Deputy Minister’s Office." That is a division within the Ministry of the Attorney General for Ontario responsible for supervising adult offenders and those in custody awaiting trial, as well as offenders serving sentences in provincial correctional facilities.
[91] According to that Note, between March 16, 2020 and April 7, 2020, there has been a 26.9% reduction in the population of inmates in the province's detention centres and correctional facilities. As of that date, only five inmates in these facilities have tested positive for COVID-19, although test results are still outstanding for 38 other inmates. Two staff members have also tested positive. As of April 7, 2020, no one has tested positive at Maplehurst Detention Centre, where Mr. Williams is currently detained.
[92] The Note details the plan of action to reduce the chances of COVID-19 entering into the province's detention centres and correctional facilities. That has included suspending personal visits to inmates, and, effective April 6, 2020, screening both staff and inmates on entering such facilities for symptoms. The Note also details ongoing efforts to reduce the number of persons held in the province's detention centres and correctional facilities.
[93] In his affidavit, Dr. Orkin offered a critical evaluation of two earlier iterations of similar Notes, one dated March 25, 2020, and the second dated March 30, 2020. The latter appears to be the very same document filed on this application, with the only differences being an update of the statistics regarding testing and results as of April 7, 2020.
[94] In his affidavit, Dr. Orkin deposed that the information contained in these Notes did not in any way affect the opinions he expresses in his affidavit. In short, Dr. Orkin questions the utility of any measures, such as screening incoming inmates or staff or increased efforts at cleaning, absent a significant reduction in the population of persons held in custody.
[95] On the hearing of this application, Mr. Williams testified that his range at Maplehurst Detention Centre remains at full capacity, with 32 inmates housed in 16 cells. Mr. Williams continues to share his cell with another inmate. On his range, the 32 inmates share a common area where they take all meals and also share the same washroom facilities.
[96] Mr. Williams testified that the responsibility for cleaning cells and the common areas, including the washrooms, falls on the inmates. Although provided with cleaning supplies, Mr. Williams testified that the conditions are far from clean.
[97] Finally, it deserves mention that there is no evidence before me that Mr. Williams suffers from any underlying health issues. In short, there is no basis to think that he is amongst those incarcerated who are especially vulnerable to a life-threatening outcome should he contract the COVID-19 virus.
IV. Positions of the Parties
[98] The parties did not address the primary ground justifying pre-trial detention: Criminal Code, s. 515(10)(a). In all of the circumstances, this was sensible. On many prior occasions over the last decade, Mr. Williams has faced charges. Despite this, there is no suggestion that he has ever failed to attend court. His surrender into custody after a successful Crown bail review on the firearm charge he recently faced suggests that he does not pose a flight risk. That track record, combined with the fact that he is a Canadian citizen with established roots in the community, demonstrates that his detention is not necessary to ensure his attendance in court.
[99] Instead, the submissions of the parties focused on both the secondary ground (the protection or safety of the public under s. 515(10)(b)) and the tertiary ground (maintaining confidence in the administration of justice under s. 515(10)(c)).
[100] Although acknowledging that Mr. Williams' criminal record reveals a pattern of disregarding court orders, Ms. Addie emphasizes that most of these occurred many years ago. She submits that the court should accept Mr. Williams' evidence, and that of his mother, that he has matured considerably since then.
[101] Ms. Addie notes that Mr. Williams has no prior convictions for crimes of violence. She concedes that the Crown appears to have a strong case implicating Mr. Williams in the offences charged. At the same time, she reminds the court that Mr. Williams is presumed to be innocent, and that at the bail stage of the criminal process, the Crown's case often appears much stronger than it turns out to be.
[102] Ms. Addie submits that any concerns about the protection or safety of the public are adequately addressed by the proposed terms of release that will ensure Mr. Williams remains in his residence while on bail. Compliance is effectively guaranteed not only by the constant presence of one of the sureties or his older brother, but also through the use of the GPS ankle monitor.
[103] Concerning the tertiary ground for detention, Ms. Addie acknowledges that each of the factors enumerated in s. 515(10)(c) appears operative in this case. Nevertheless, she notes that that subsection requires the court to have regard to all of the circumstances. At present, this must include the ongoing COVID-19 pandemic, and the importance, for the health of inmates, staff and the broader public, of markedly reducing the number of inmates in provincial detention centres.
[104] Ms. Addie submits that a reasonable person would not lose confidence in the administration justice if the court were to order the release of her client. Instead, she argues that a reasonable person would lose confidence in the administration of justice knowing that someone like Mr. Williams, who can be effectively confined at home to wait out the pandemic, was required to remain in custody. At this point, she submits that only accused persons who have no available place in the community to self-isolate should remain in detention.
[105] On behalf of the Crown, Mr. Bernstein acknowledges the extraordinary nature of the present circumstances. He does not question the credibility or reliability of Dr. Orkin's expert opinion evidence. Mr. Bernstein notes that over the last month, the Crown has been proactive in helping to secure the release from custody of many accused. In that regard, he points to the 26.9% reduction in the number of inmates held in the province's detention centres and correctional facilities.
[106] Mr. Bernstein submits that despite all of this, the court should not order the release of Mr. Williams. He argues that concerns under both the secondary and tertiary grounds are at their zenith in a case like this. He notes that there is compelling evidence implicating Mr. Williams in two gravely serious, planned and deliberate crimes of violence involving firearms, carried out on a highway, in traffic, one of which cost an entirely innocent member of the public his life.
[107] Concerning the secondary ground, Mr. Bernstein argues that Mr. Williams' criminal record reveals a pattern of disregarding court orders. That includes two bail orders, a conditional sentence order, and, as recently as 2018, a driving prohibition. The bail breaches involved house arrest conditions and the very same sureties now being proposed. Further, there is compelling evidence implicating Mr. Williams in the crimes charged, suggesting he is someone capable of irrational and deliberate acts of extreme violence. In these circumstances, Mr. Bernstein argues that despite his release plan, Mr. Williams’ detention is necessary to protect the public.
[108] Mr. Bernstein also submits that Mr. Williams has failed to demonstrate that his detention is not necessary to maintain confidence in the administration of justice. Mr. Bernstein argues that all of the factors enumerated in s. 515(10)(c) are operative in this case, namely a strong Crown case, gravely serious crimes, the circumstances surrounding the commission of these offences involving the discharging of firearms on a public highway and the murder of an innocent member of the public, and the very lengthy sentences faced if convicted. Although Mr. Bernstein concedes that COVID-19 is a relevant consideration, he submits that in all of the circumstances, releasing Mr. Williams would undermine confidence in the administration of justice.
V. Law and Analysis
[109] This application turns on an assessment of the secondary (s. 515(10)(b)) and tertiary (s. 515(10)(c)) grounds. More specifically, whether or not Mr. Williams has shown that his detention is not justified on either of these bases. I will address each issue in turn.
Has Mr. Williams demonstrated that his detention is not necessary for the protection or safety of the public?
[110] The secondary ground in s. 515(10)(b) of the Criminal Code requires pre-trial detention where it “is necessary for the protection or safety of the public." Under this provision, the “danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention”: R. v. Morales, [1992] 3 S.C.R. 711, at p. 736. Rather, the denial of bail on this basis is only justified where an accused poses a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public": Morales, at p. 737.
[111] The secondary ground requires the court to conduct a risk assessment. By its very nature, there is always a fair degree of uncertainty inherent in such an evaluation. Invariably, the court must negotiate the tension between making a mistake that imperils public safety or making a mistake that imperils the accused's liberty: Lucia Zedner, “Erring on the Side of Safety: Risk Assessment, Expert Knowledge, and the Criminal Court” in G.R. Sullivan & Ian Dennis, eds., Seeking Security: Pre-empting the Commission of Criminal Harms (Oxford: Hart Publishing, 2012) at p. 220. The best the court can do is make a reasoned assessment based on all of the available information.
[112] In assessing the risk of release, a key piece of relevant information is the accused's criminal record. If an accused has an established propensity for not abiding with court orders, this may provide a basis for concluding that they will not be compliant with a proposed plan of supervision and the conditions of release: Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Carswell, 2010) at 3-17.
[113] The nature of the charge and the strength of the Crown's case are also important considerations. Where an accused faces gravely serious charges and overwhelming evidence, public safety concerns may foreclose bail. However, this consideration must be approached with caution. No matter the offence, the Criminal Code contemplates the potential for bail. Therefore, “the nature of the offence charged, by itself, cannot justify the denial of bail": R. v. LaFramboise, [2005] O.J. No. 5785 (C.A.), at para. 31 (emphasis added).
[114] Ultimately, on this application, I am not satisfied that Mr. Williams has demonstrated that his detention is not necessary for the protection or safety of the public. There are two main reasons why I am less than persuaded.
[115] First, there is Mr. Williams' prior track record when it comes to complying with court orders. On two separate occasions, he was released on bail and required to remain in his residence. His parents were his sureties then, and they are his proposed sureties on this application. Nevertheless, Mr. Williams disregarded the home confinement conditions. Additionally, he previously breached a conditional sentence order by failing to comply with a requirement that he remain inside his residence.
[116] I recognize that Mr. Williams and his mother both testified that his past breaches occurred when he was much younger and that he has matured since then. It is difficult to reconcile that evidence with the fact that as recently as 2018, Mr. Williams was convicted of driving while disqualified. That is, deliberately breaching a court order requiring that he not drive. In that regard, I found Mr. Williams' evidence that this resulted from him being confused about what was necessary to reinstate his driver's licence less than convincing.
[117] There is no credible evidence to substantiate the claim that since these earlier breaches of court orders, Mr. Williams has grown more responsible. In my view, his past pattern of disregarding court orders weighs heavily against his evidence that he can now be trusted to abide by his conditions of release.
[118] For most accused, a GPS ankle monitor will serve as an effective deterrent to help ensure compliance with a home confinement condition: see R. v. Doucette, [2016] O.J. No. 852 (S.C.), at para. 5; R. v. T.L., 2020 ONSC 1885, at para. 22; R. v. Rajan, 2020 ONSC 2118, at para. 32. In a case on the margins, it can undoubtedly make the difference between detention and release.
[119] However, deterrence invariably depends on rationality -- an inclination towards weighing costs and benefits. I am far from persuaded that Mr. Williams is such a person. My reservations are tied closely to the second principal reason why I have concluded that public safety concerns require Mr. Williams' detention.
[120] The crimes for which Mr. Williams stands charged are extremely serious and most troubling. The allegations are that on two separate occasions, with planning and deliberation, he repeatedly fired a high-powered firearm from a moving vehicle on a public highway at other motorists. In one instance, killing an entirely innocent member of the public, and on the second occasion, severely wounding his intended target. Of course, as already mentioned, serious allegations alone are never enough to justify a denial of bail. Otherwise, the presumption of innocence would be left without any real effect when it comes to bail.
[121] However, the evidence on this application suggests that the Crown’s case finds significant support in a body of compelling circumstantial evidence, as well as a confession. If Mr. Williams committed the crimes charged, it is apparent that he is someone capable of acting irrationally, violently and with complete indifference for public safety.
[122] All of that said, I recognize that the Crown's case can often appear much stronger at the bail stage than it proves to be later in the criminal process when finally tested. However, unlike a routine bail hearing in a busy bail court, where the Crown ordinarily reads in the allegations from a synopsis prepared by the police, I heard testimony from a detective involved in this investigation detailing the evidence in this case. At this stage, the Crown's case against Mr. Williams appears most formidable.
[123] Accordingly, Mr. Williams has failed to persuade me that his detention is not necessary for the protection or safety of the public. In coming to that conclusion, I do not mean to minimize the current threat that the COVID-19 pandemic poses for those in custody or the public health implications once the virus ultimately infiltrates our provincial detention centres. Should this occur, I accept that it will serve to tax our already strained public health resources.
[124] To be sure, in these extraordinary times, anyone who is a viable candidate for pre-trial release should be granted bail sooner rather than later. This is especially important for those accused who suffer from underlying health conditions that increase their risk of becoming severely ill or dying should they contract the virus. In close cases, this is not the time to err on the side of caution, given that bail decisions may now implicate more than an accused person's liberty. For some accused, bail decisions could now threaten their right to security in their person and their right to life. Further, given the broader public health implications, it is very much in the community's best interests to reduce the number of people held in custody as much as possible.
[125] All of that said, the criteria governing whether or not to release an accused on bail remain in effect. The evidence on this application is clear that, from a public health standpoint, the release of everyone currently held in a detention centre to self-isolate at home would be ideal. However, the wholesale release of those held in our detention centres is neither feasible nor sensible. That would serve to return a great many dangerous persons into the community, profoundly threatening public safety. The law continues to require that accused who pose a substantial risk of endangering the public, like Mr. Williams, must remain in custody, even during the COVID-19 pandemic: see R. v. King, 2020 ONSC 1935, at paras. 73-74; R. v. Syed, 2020 ONSC 2195, at para. 50; R. v. Fraser, 2020 ONSC 2045, at para. 16.
[126] Given my conclusion that Mr. Williams has failed to demonstrate that his detention is not justified on the secondary ground, this alone is decisive on this application. However, given that the parties made extensive submissions regarding the tertiary ground, I think fairness requires that I also address it.
Has Mr. Williams demonstrated that his detention is not necessary to maintain confidence in the administration of justice?
[127] Section 515(10)(c) of the Criminal Code provides that the detention of an accused person in custody is justified:
If the detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including:
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[128] Each of the factors enumerated in s. 515(10)(c) weigh in favour of ordering detention in this case.
[129] First, the Crown's case against Mr. Williams appears to be very strong. There is a body of circumstantial evidence to suggest that Mr. Williams had the motive, opportunity, and means to commit these crimes and that his conduct in the aftermath of Mr. Ramkishun's murder was also consistent with his involvement in that crime. Importantly, there is a witness who reports that Mr. Williams confessed his responsibility for these offences.
[130] Second, Mr. Williams faces charges of first-degree murder and attempted murder. Placed along a spectrum, these are the gravest offences in our criminal law.
[131] Third, the circumstances surrounding the commission of these offences are most serious and extremely troubling. On two separate occasions, with planning and deliberation, it is alleged that Mr. Williams repeatedly fired a high-powered firearm from a moving vehicle on a public highway at other motorists. In one instance, killing an entirely innocent member of the public, and on the second occasion, severely wounding his intended target.
[132] Finally, if convicted, Mr. Williams faces a mandatory sentence of life imprisonment without parole eligibility for twenty-five years for first-degree murder and, undoubtedly, a very lengthy penitentiary sentence for attempted murder.
[133] The Supreme Court of Canada has observed that even where the four factors listed in s. 515(10)(c) weigh in favour of detention, a detention order is not automatic: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 66-69, 87. Such a reading of s. 515(10)(c) would ignore the section's non-exhaustive wording: St-Cloud, at para. 68. Ultimately, a judge must consider the four factors “together with any other relevant factors” to determine “whether, in the case before him or her, detention is necessary" to "achieve the purpose of maintaining confidence in the administration of justice”: St-Cloud, at paras. 69, 87.
[134] In assessing whether or not detention is necessary to maintain confidence in the administration of justice, the concern is with public confidence: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 41; St-Cloud, at para. 72. The measure is the perception of “reasonable members of the community.” People who are dispassionate, thoughtful, well-informed, and familiar with the basics of the rule of law, the fundamental values of our criminal law, and the rights guaranteed by the Charter, including the presumption of innocence, the right to reasonable bail, and the right to be tried within a reasonable time: St-Cloud, at paras. 72-87.
[135] I entirely agree with the view expressed by many of my colleagues that the COVID-19 pandemic is a relevant consideration to be taken into account in assessing whether or not detention is necessary to maintain confidence in the administration of justice: R. v. J.S., 2020 ONSC 1710; T.L.; R. v. T.K., 2020 ONSC 1935; R. v. Cain, 2020 ONSC 2018; R. v. Rajan, 2020 ONSC 2118; R. v. C.J. (27 March 2020), Milton, 56/20 (Ont. S.C.).
[136] Reasonable members of the community, aware of the imminent threat that COVID-19 poses to the health of inmates and staff in our detention centres, and the potential impact on our healthcare system once the virus inevitably enters these facilities, would surely not lose confidence in the administration of justice in every case where release is ordered even though the factors enumerated in s. 515(10)(c) might tend to favour detention: see, for example, J.S.
[137] However, the analysis under s. 515(10)(c) must always have regard to all of the circumstances of the particular case. It is not my role to make general pronouncements about the effect of COVID-19 on the application of the tertiary ground in circumstances that are not before this court. As a result, I will return to the specific circumstances presented by the bail application brought by Mr. Williams.
[138] In my view, the release of Mr. Williams on bail would result in reasonable members of the community losing confidence in the administration of justice. To be sure, such persons do not want to see anyone exposed to a potentially life-threatening illness. At the same time, most reasonable members of the community would be deeply concerned by Mr. Williams' release on bail.
[139] Mr. Williams faces the gravest of charges, murder and attempted murder. The allegations are that, on two separate occasions, with planning and deliberation, he repeatedly fired a high-powered firearm from a moving vehicle on a public highway at other motorists. In one instance, killing an entirely innocent member of the public, and on the second occasion, severely wounding his intended target. If convicted, he faces life imprisonment. Critically, in my view, the Crown's case would appear to be very strong.
[140] In these circumstances, an accused person without a prior criminal record would have difficulty securing their release on bail, even in the context of the COVID-19 epidemic. For Mr. Williams, who has a track record of disregarding court orders, I do not doubt that his release on bail would undermine confidence in the administration of justice irrespective of the amount pledged or how stringent the bail terms.
[141] Accordingly, Mr. Williams has also failed to satisfy me that his detention is not justified under s. 515(10)(c).
Conclusion
[142] For all of these reasons, I have concluded that Mr. Williams has failed to show cause why his detention in custody is not justified within the meaning of subsection 515(10). Accordingly, I dismiss Mr. Williams’ application for bail.
Signed: Stribopoulos J.
Released: April 15, 2020
