Court File and Parties

COURT FILE NO.: 20-9394-BR DATE: 2020/04/15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – M.K. Applicant

Counsel: Moiz Karimjee, for the Crown and A. Levins for the Federal Crown S. Brass, for the Applicant

HEARD: April 8, 2020

Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant and any information which would tend to identify the whereabouts of M.K., or his family. Counsel may circulate these reasons and use them in court.

REASONS on bail review application

A. London-Weinstein J.

Procedural History

[1] M.K. seeks review of his detention order issued March 19, 2020. This bail review was held by way of audio conference due to the COVID-19 pandemic. M.K. was detained on the secondary and tertiary grounds.

[2] M.K. is facing serious charges. The first set of charges relate to January 22, 2019 when M.K. was the subject of surveillance by members of the Ottawa Police Drug Unit. Police allegedly observed M.K. engaging in three drug trafficking transactions. About 3.8 grams of crack cocaine packaged in small individual bags were seized from M.K.’s person by police upon his being searched incident to arrest. M.K. was released by police on a promise to appear and undertaking.

[3] M.K. is subject to a firearms prohibition order which does not expire until June 29, 2020. He is also subject to an order of probation requiring him to keep the peace and be of good behaviour. That order was dated June 11, 2018.

[4] On March 14, 2020 M.K. is alleged to have been driving a black Jeep Wrangler on Booth Street south of Wellington Street in Ottawa. Police officers allege that they observed an unsafe lane change with a failure to signal the intention to change lanes.

[5] A traffic stop was initiated. Police allege they observed a cellphone in M.K.’s lap and loose cannabis on the centre console and floor of the vehicle. Police asked M.K. to step out of the vehicle. M.K. fled on foot prompting a foot pursuit by police. While conducting a search of the vehicle a loaded firearm was found inside the centre console of the vehicle. Cash in the amount of $1,120 and four cell phones were seized by police.

[6] M.K. volunteered to police that there was a loaded firearm in the vehicle which he said he needed for protection.

[7] M.K. has a criminal record which includes convictions for failing to appear (2007) and failing to comply with court orders. He has prior convictions for trafficking in narcotics. [1]

[8] M.K. now offers his mother and brother as a surety, along with the GPS monitoring bracelet. His brother, A.K. was previously offered as a surety, but not his mother.

[9] At the original bail hearing, the Crown Attorney did not take issue with the credibility of the proposed surety, A.K. The Crown Attorney indicated that the surety was present in good faith and wanted to help his brother. It was accepted by the crown that the surety would call police to report a breach of the conditions if his brother was not adhering to the conditions of his bail release plan.

[10] At the initial bail hearing, the surety expressed a preference for a GPS monitoring bracelet to be worn by the accused, to enhance his ability to meaningfully enforce the conditions of bail. The original plan was to have M.K. living with his brother in Montreal. His mother lives in an adjoining duplex. However, for reasons which are not entirely clear the GPS monitoring bracelet was not offered as part of the proposed plan of bail. Reference to the GPS monitoring bracelet was scratched out of A.K.’s affidavit.

Material Change in Circumstances:

[11] Sections 520 and 521 of the Criminal Code do not provide the reviewing judge with an open-ended discretion to review the initial release decision. It will be appropriate to intervene only if the justice has erred in law, if the decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another.

[12] The reviewing judge does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. The relevant factors are not limited to the ones expressly specified in s. 515(10)(c) of the Criminal Code. Finally, where new evidence is submitted by the accused, or the prosecutor as permitted by ss.520 and 521 of the Criminal Code the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstance of the case. R v. St. Cloud, 2015 SCC 27, at para. 121.

[13] While it is arguable that M.K.’s mother could have been proposed as a surety at the initial bail hearing, the four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759, are to be interpreted in a manner consistent with how bail hearings often unfold, which is against a backdrop of rapidly changing considerations. St. Cloud, para 127. In this case, the proposed surety lives in another city, and we are in the midst of a pandemic.

[14] Flexibility is required by the reviewing judge in determining whether proposed evidence which could have been called at the initial hearing should be admitted. St. Cloud, I find it legitimate and reasonable that A.A. was not called at the first bail hearing. She is employed and cares for her 9 year old granddaughter, who she legally adopted. The child is M.K.’s biological child. It must be borne in mind that the bail hearing was held during the pandemic, although at its earlier stages. A.K. drove from Montreal to attend the bail hearing in person despite the pandemic.

[15] The proposed new evidence is relevant. I also find that the addition of A.A. could have affected the balancing exercise engaged in by the Justice under s. 515(10)(c). The Justice of the Peace found the plan at the initial bail hearing to be insufficient in view of M.K.’s lack of respect for court orders and the limited influence that A.K. had on his brother. The addition of M.K.’s mother as a surety, given her particular strengths of character and professional background strengthen the plan considerably, such that it can be said that her addition could have affected the balancing in which the justice engaged at the original hearing. Both defence counsel and the Crown made submissions regarding the tertiary ground and COVID-19. The Court detained M.K. on the secondary and tertiary ground. However, the Court did not respond to the COVID-19 issues in the reasons which were provided. I have found that the addition of the evidence of A.A. who is the mother of M.K. and A.K. meets the Palmer criteria when admissibility is considered in the contextual and flexible manner mandated in R v. St. Cloud. Given that I have found a material change in circumstances, I turn now to conduct a de novo hearing.

The Plan of Release

[16] A.K. works as a technician and is currently working from home. M.K. will live with his brother. His mother and his biological daughter, age 9, live in an attached part of the duplex. A.K. is a pro social individual who is gainfully employed, yet able to be at home to supervise his brother. A.A. lives in the attached duplex. Her hours of work dovetail with those of her son, A.K., so that M.K. will not be unsupervised. Both sureties pledge cash without deposit, as does M.K. A GPS monitoring bracelet is being proposed along with strict terms of house arrest. The home is not in Ottawa, but in Montreal.

Primary Grounds

[17] Although the Crown did not argue primary ground concerns at the initial bail hearing, they were argued before me. M.K. has a dated conviction for failing to appear. Mr. Karimjee also argues that due to the nature of the drug trafficking charges, there is a risk that M.K. will be able to disappear and elude justice. R v. Pearson, [1992] 3 S.C.R. 665.

[18] I have no evidence before me that M.K. is part of an organized drug trafficking ring which would provide him with the financial ability to escape justice, as was described in Pearson. M.K. appears to be a street level trafficker. He also has children in Montreal, including the 9 year old daughter who lives with his mother. His mother is a proposed surety. Mr. Karimjee did not strenuously press the primary ground concerns in argument. I am satisfied that the primary ground concerns are fully mitigated by M.K.’s strong ties to his family and the strong plan of bail.

Secondary Grounds

[19] There are several factors in this case which are relevant to the secondary ground concerns. M.K. has a history of not following court orders. He was on probation, and an undertaking at the time of his arrest on the firearm charge. This failure to follow court orders was fatal to the original plan of bail. However, the new plan of bail has the addition of M.K.’s mother, A.A. who is a strong surety. Mr. A.K. is also a strong surety. The addition of a GPS monitoring bracelet is also a factor which will serve to remind M.K. that if he leaves the home in the absence of his surety that this breach will be discovered and reported. I have complete confidence that both sureties would report such a breach. In light of the addition of A.A., I am satisfied that the concern that there is a substantial likelihood that M.K. will commit additional offences while on bail is offset by the new plan. I appreciate that the GPS monitoring bracelet is not without its frailties in terms of secondary ground concerns, but in conjunction with strong sureties it does strengthen the plan in this case. In other words, the secondary ground risks can be managed with this new plan.

[20] M.K. will be on house arrest. The home in which he will be living is adjoined, with both sureties living in different parts of a duplex. A GPS monitoring bracelet is being proffered. This arrangement and the working schedules of the sureties allow for supervision in an ideal setting. I regarded the sureties as being strong and reliable. Their evidence reveals they clearly understand a surety’s responsibilities. I was particularly impressed with M.K.’s mother, A.A. as a surety. She has a clear understanding of her responsibilities and is someone who, due to her background, training and profession, is particularly well suited to acting as a surety. I appreciate that M.K. has concealed his lifestyle from her and from his brother. I say this without encroaching on the presumption of innocence. However, he will no longer be able to hide his lifestyle from his brother and his mother as he will be under their direct supervision and living with his brother. At the initial bail hearing, the crown, not Mr. Karimjee, suggested that because A.K. was unaware of his brother’s lifestyle that he would not be able to exercise the appropriate sway over the decision making process of M.K.

[21] I note that this submission, in the way it is framed, is a no-win scenario for any proposed surety. If A.K. had been aware that his brother was alleged to have been involved in illegal activities, the Crown could then argue that he either has no influence over his brother if he tried to intervene and failed, or that he is an unsuitable surety, as he was aware of alleged criminal activity and did not intervene.

[22] In my view, a surety should not be disqualified because an accused person may have hidden a criminal lifestyle. The people who are most familiar with M.K.’s lifestyle are likely not suitable to act as sureties. It is not a surprise that he has hidden his lifestyle from his hardworking, pro social family. I prefer to ask whether the proposed sureties will be successful in supervising M.K. while he lives on their terms, in their presence, with the leverage of being able to revoke bail if required. M.K. will not be able to conceal what he is doing while on house arrest.

[23] The strength of the plan of bail is directly relevant to the secondary ground. However, it is not irrelevant to the tertiary ground as part of the overall circumstances which are to be considered by a reasonable member of the public. It stands to reason that a strong plan of bail on a serious charge may affect the view of the reasonable person. R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85, at para. 58.

The Tertiary Ground Analysis:

[24] Detention is justified where it is necessary to maintain [public] 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. S.515(10)(c) Criminal Code.

[25] In this case, the Crown’s case appears strong, although there are is some basis for a potential defence through a Charter argument regarding the possession of the loaded firearm. However, all four factors favour detention. M.K. is alleged to have fled from police. It is also relevant that M.K. was on a weapons prohibition as a result of a conviction for drug trafficking at the time of his arrest on this index offence. He was also on probation. He has a criminal record for drug trafficking.

[26] The four circumstances listed in s. 515(10)(c) of the Criminal Code are not exhaustive. A court must not order detention automatically even in situations where the four listed circumstances support this result. Rather, the court must instead consider the totality of the circumstances of each case, paying particular attention to the four listed circumstances to determine whether detention is justified. St. Cloud, para 68 and 69.

[27] At the end of the day, after balancing all of the relevant circumstances, the ultimate question for resolution by the court is whether detention is necessary to maintain confidence in the administration of justice. In answering that question, the court must view the circumstances through the eyes of the public to determine whether detention is necessary to maintain confidence in the administration of justice.

[28] The public in this instance is assumed to be a reasonable person, properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused. St. Cloud para 80.

[29] Chief Justice Wagner noted that the reasonable person in the tertiary ground analysis is comparable to the reasonable person in the exclusion of evidence analysis conducted under s. 24(2) of the Charter. The Chief quoted Lamer J., in R v. Collins, [1987] 1 S.C.R. 264 where the Court put the relevant question in figurative terms: “Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?” “The reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable.” Collins, at p. 282. The reasonable person test “serves as a reminder to each individual judge that his (or her in the present case) discretion is grounded in community values, and, in particular, long term community values. He (or she) should not render a decision that would be unacceptable to the community when that community is not being wrought with passion or otherwise under passing stress due to current events”: ibid., at pp. 282-283; see also R v. Burlingham, [1995] 2 S.C.R. 206, at para 142. St. Cloud, para 78.

[30] The personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.,) may also be relevant. M.K. experienced a prior episode of spontaneous pneumothorax for which he was hospitalized. Spontaneous pneumothorax, or collapsed lung not the result of injury, places M.K. at a higher risk of reoccurrence of the condition. If he were to contract COVID-19 he is at greater risk of adverse outcome if he were to experience a recurrence of pneumothorax.

[31] The public’s view of whether detention should be ordered must be informed by the risk that transmission of COVID-19 poses in custodial facilities where physical distancing is not possible. R v. J.S. 2020 ONSC 1710.

[32] The ministry itself has taken steps to reduce population. The ministry does not claim that there is any ability for a prisoner to physically isolate, as recommended by health experts.

[33] On the other hand, Mr. Karimjee provided me with an Information Note regarding the institutional response to COVID-19 dated April 6, 2020. The note indicates that the ministry in Ontario has implemented several strategies to limit the effects of COVID-19 on the inmate population and correctional staff.

[34] This information was not in affidavit form, nor was anyone available to be cross-examined on the contents of this note. However, we are conducting these bail reviews in a time of crisis. I was not surprised that the persons who are working to ensure the safety of prisoners and staff at the provincial institution are not available to attend this bail review to be cross examined. There are other urgent matters afoot. I note that this is a bail review, and not a bail hearing, but the same principles of admissibility of evidence should apply, given the purpose of the hearing, which is not a trial, but to determine whether M.K. can be released and the public protected. A more relaxed standard is mandated in regard to the receipt of evidence given this context. St. Cloud para 129.

[35] A bail hearing (or a bail review) does not have the strict rules of evidence which exist at trial. Ms. Brass did not object to the introduction of this evidence. In order to be admissible the evidence must be credible or trustworthy. (s. 518(1)(e) of the Criminal Code).

[36] I admitted the note which outlined the steps the ministry is taking to reduce the population in the jails and to limit the persons entering the jail, or being transported back and forth to court. I infer that the ministry is aware of the risk of contagion in the jails, where physical distancing is impossible, and is reducing both the population of the jail, and the movement of persons into and out of the jail.

[37] The new ministry strategy includes lowering the population in the jails, informing prisoners regarding coughing protocols, controlling the number of individuals entering the jails, increasing the use of video technology and the creation of a protocol, including notification of health professionals in the event of an outbreak.

[38] The note indicates that great progress has been made to reduce the population in the institutions. The annual average population has not been as low as the current population since the 1989/1990 fiscal year.

[39] The Ministry expresses confidence in the care being offered to the inmate population and indicates that there are 6,149 inmates in custody across all 25 institutions, which represents a 26 per cent reduction.

[40] There are currently no known cases at the Ottawa Carleton Detention Centre. However, as of April 3, 2020, only a total of 77 prisoners were tested for COVID-19, with 51 negative results, 17 total pending results, four positive results and four results unknown. Two of the positive cases relate to inmates from the Toronto South Detention Centre.

[41] Institutions are working on local initiatives to provide extra postage and phone calls for inmates. The ministry has also increased the weekly “canteen” limit by 50 per cent to $90 to allow inmates to purchase additional items.

[42] Every individual entering the institution is subject to a screening process that was developed based on Ministry of Health guidelines. I had questions in regard to the screening process. Given the lack of availability for cross-examination, my questions regarding the screening process could not be addressed. I did not speculate as to how the screening is conducted.

[43] If an outbreak is suspected, the institutional officials notify the medical officer of health and provincial health officials. Containment measures will be executed.

[44] A number of initiatives have been taken to reduce capacity. Intermittent inmates who serve time on the weekends are required to attend their reporting facility for their first reporting date, where they are given a Temporary Access Pass (TAP) from custody and permitted to return home. Those serving intermittent sentences will not have to report to a correctional facility every weekend, reducing the number of individuals entering the institution.

[45] The ministry has begun to perform a temporary absence review for all inmates to determine whether they are eligible for early release. Inmates chosen must be near the end of their sentences (less than 30 days remaining) and be considered a low risk to reoffend. Inmates who have been convicted of serious crimes, such as violent crimes or crimes involving guns, would not be considered for early release.

[46] Unlike the standard process, inmates are not required to apply for release and will be notified if they qualify and must agree to the terms and conditions of their release prior to leaving the institution.

[47] I take judicial notice of the following:

1. The virus is respiratory, contagious and outcomes upon infection vary widely.
2. Physical distancing and frequent hand washing are recommended by health professionals to protect against transmission.
3. Physical distancing and frequent hand washing are not available to prisoners at the Ottawa Carleton Detention Centre.

[48] A court may properly take judicial notice of adjudicative facts that are either (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons, or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. R v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458.

[49] Judicial notice bypasses the safeguards involved in proving facts by competent evidence. It must be approached with caution, especially given the lack of cross-examination. Judicial notice permits the avoidance of using valuable court time by proving things which could simply be assumed.

[50] As Justice Paciocco observes, “the only caveat [to the robust use of judicial notice] are related to the objective that judges are obliged to respect the adversarial system and the need to maintain the appearance of justice.” Proof and Progress: Coping With the Law of Evidence in a Technological Age,” Canadian Journal of Law and Technology. Vol 11, No. 2 (2013)

[51] I note that this is a bail review, and not a trial. Evidence which is credible and reliable is admissible. The threshold of admissibility is not as onerous as if admissibility were being addressed at trial. The doctrine of judicial notice is concerned with preserving economies of time while maintaining adversarial fairness. Further, in terms of the maintenance of adversarial fairness, the crown does not disagree that physical isolation and frequent hand washing are recommended to avoid transmission of the virus and that these things are impossible in the jail.

[52] In my view, it is beyond dispute between reasonable people that hand washing and physical distancing are recommended to avoid transmission of this contagious virus. Numerous news sources that are readily accessible to the general public and are reliable, all confirm these notorious, well known and indisputable facts. I note that the Chief Justice has cautioned judges not to automatically disregard evidence that comes from the news media. St. Cloud, para 84. Opinion evidence from the media can be considered when it is admissible and relevant. In conducting the tertiary ground analysis, I have assumed that the reasonable person is aware of reliable media content with regard to the nature of the virus, it’s contagious nature, the need for physical distancing and frequent hand washing, and the inability of prisoners in custody to physically distance and hand wash frequently.

[53] It is also beyond dispute that physical distancing and frequent hand washing is not possible in the Ottawa Carleton Detention Centre. I note that the ministry is not suggesting otherwise. In fact, the ministry is attempting to lower the prisoner population. It is a reasonable inference that prisoner population reduction in all of the ways in which it is being executed, is done in recognition of the fact that physical distancing and appropriate hand washing are not available in detention. This hearing was conducted by telephone to avoid the risk of passing on the virus. M.K. remained in the jail during the hearing. I conducted the hearing from my home. Counsel also participated from their homes. These steps were all executed to avoid spreading the virus.

[54] I rely also on the letter provided to me by a number of health professionals. Again, given the peculiar constraints of this time, this material was not in affidavit form. The health professionals who signed this letter are presumably on the front lines fighting the virus. I found the letter to be credible and reliable. The Crown did not object to its admission. No cross-examination was available. However, the signatories to this letter are various professionals working in the health care field.

[55] The letter expressed deep concern about the impact of the COVID-19 pandemic within custodial institutions. I accept the fact that, as the letter suggests, that the prison environment heightens the risk of transmission for both prisoners and staff. Prisoners lack the ability to practice social distancing. This is especially true for prisoners who share cells, but even single bunked prisoners must be frisked and handcuffed by officers, line up for daily medications, share common spaces, and use common telephones, bathrooms and more.

[56] M.K. testified that the telephone receiver is not sanitized before use. While I inferred from his evidence that sanitizer may be available from correctional officers, the telephone was not being regularly sanitized, despite being used by many prisoners.

[57] I agree with the authors that while conditions at the jail are now stable, the conditions at the jail create the “perfect storm” for COVID-19 transmission, illness and death. If prisoners become infected, it will be essentially impossible to stop the spread of COVID-19 within a correctional facility. [2]

[58] In all of the circumstances, I find that M.K. has met his onus on the primary and secondary grounds with this new plan of bail. In regard to the tertiary ground analysis, I regard the Covid-19 virus threat as one factor which must be balanced with all of the relevant factors to determine whether the tertiary ground concerns can be met in this case. I would not have released M.K. if Covid-19 had not posed such a fundamental threat to the health of M.K., who has a previously collapsed lung and the risk of reoccurrence of this condition. In R. v. Cain, 2020 ONSC 2018 I released Mr. Cain even though I found that it was not necessary for him to establish a subjective characteristic which rendered him particularly vulnerable to an increased risk of adverse outcome if he were to contract the virus. Being in prison without the ability to physically distance increased the risk of transmission and in weighing all of the relevant factors, I found that the public could be protected and Mr. Cain released. However, in Cain, the accused had a very limited record. M.K. has a record not only for drug trafficking, but for failing to follow court orders. It is highly aggravating that he was on a release for drug trafficking when the index offence is alleged to have occurred. He was also on probation and a weapons prohibition. The allegations involve him fleeing police on foot and a loaded firearm concealed in his rental vehicle. Absent the threat of the virus as it relates to his particular vulnerability if infected, the four main tertiary ground concerns mandate detention even considering the presence of COVID-19.

[59] However, M.K.’s particular vulnerability, and the risk the virus poses to him if infected given the inability to physically distance, weigh in favour of release on a very strict and strong bail plan. While M.K.’s criminal record, and his history of not complying with court orders is relevant on the secondary grounds, I also considered it as part of the tertiary ground analysis. The public at this time has, in my view, a heightened concern regarding public safety given the pandemic. If this plan of bail had been anything other than what would be described as the top rung of the ladder as described in R v. Antic, 2017 SCC 27 para 4, I would not have released M.K. However, in the final analysis, after prolonged consideration of all of the relevant factors, I am of the view that a reasonable member of the public would regard releasing M.K. on extremely tight bail conditions with excellent sureties during a pandemic where he is at increased risk of an adverse consequence if infected, to be the correct decision.

[60] I also considered, as part of the tertiary ground concern that the threat of COVID-19 is also a public health threat to the staff working in the jail, the prison population, and the community at large if the virus gets a foothold in the jail. I do not regard this possibility as speculative. M.K. has a very strict and appropriate plan of bail. The public will be protected, and he will be removed from the very real threat of the virus, while the population in the jail is reduced by one.

Terms of Release

[61] M.K. shall reside at his brother’s home in Montreal. His brother A.K. is to be named as a surety on a bond in the amount of $2,000 without deposit. His mother A.A. shall be named as a second surety on a bond in the amount of $2,000 without deposit.

[62] M.K. shall post bond in the amount of $10,000 without deposit.

[63] M.K. is to use a GPS monitoring bracelet and adhere to all of the related conditions.

[64] M.K. shall remain in the residence at all times except if there is a medical emergency wherein M.K. shall be in the company of either named surety, or during admission to hospital; and if in attendance at court, or meeting with counsel and in the company of either named surety, or Counsel, Shira Brass, or Alan Brass.

[65] M.K. should provide proof of medical emergency or court attendance or meeting with counsel if requested to do so by peace officer. Peace officer shall provide reasonable opportunity to produce this evidence and consult with Assistant Crown Attorney Moiz Karimjee or designate before laying charges relating to the failure to produce the evidence of medical emergency or court attendance.

[66] M.K. is not to possess any weapons as defined by the Criminal Code. (For example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.

[67] I am not imposing a no-cellphone condition at this time, given the ongoing health crisis, but M.K. should not possess any weigh scales, hydroponic growing equipment or other drug paraphernalia which could be used for drug trafficking.

[68] The statutory term of keeping the peace and remaining of good behaviour apply to M.K. on this release and I expect him to respect the authority of his sureties and to be subject to their direction and control.

[69] The crown suggested a cash deposit bail in this case. I considered the imposition of a cash deposit bail, but after consideration am of the view that the proposed plan, with strong sureties and a GPS monitoring bracelet offers sufficient protection of public safety. Section 515(2)(e) of the Criminal Code permits a judge or justice to require both a cash deposit and surety supervision as conditions of release if an accused ordinarily resides out of the province or more than 200 kilometres away from the place in which he or she is in custody. But this form of combined “cash-plus-surety” release is not available to accused persons who do not meet these geographic criteria.

[70] In R v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, the court noted that a cash deposit and a monetary pledge both give an accused the same financial incentive to abide by his or her release order. Neither is more coercive than the other. But requiring cash can be unfair as it makes an accused person’s release contingent on his or her access to funds. Thus, cash bail is merely a limited alternative to a pledge which must not be imposed where accused persons or sureties have reasonably recoverable assets to pledge. para. 4

[71] The sureties in this case are able and willing to pledge funds which will provide M.K. with financial incentive to abide by his release order. I also was not satisfied on a balance of probabilities that M.K. is not ordinarily resident in Ontario. While it is true that M.K.’s criminal record is entirely constituted of offences in Quebec, he provided an address in Ottawa and I was not satisfied that he was not living in Ottawa at the time of his arrest. His mother’s evidence suggested he was living in Ottawa. I found her to be a credible and reliable witness and I accepted that M.K. is ordinarily a resident of Ottawa, Ontario.

[72] I took more time than I ordinarily would in the circumstances to draft these reasons. I thought long and carefully about whether M.K. could be released. As indicated, I would not have released M.K. but for the threat of the COVID-19 virus to him specifically due to his health issue although this proposed plan meets the secondary ground concerns. To be absolutely clear, the existence of the COVID-19 virus generally, absent the specific lung vulnerability which M.K. has, would not have been sufficient to warrant release given the tertiary ground concerns in this case. The particular risk to M.K. if he contracts the virus given his health history altered the tertiary ground analysis in favour of release.

Madam Justice A. London-Weinstein Released: April 15, 2020

Footnotes

[1] He was convicted in 2007 in Montreal, Quebec for trafficking in a substance described in s. 5(1) of the Controlled Drugs and Substances Act. In 2008 he was convicted for the same offence for which he received a $500 fine and two years probation. In 2010 he was convicted for trafficking in a narcotic for which he received an 18 month sentence with 7 months of pretrial custody noted. At this time he was made the subject of a s.109 firearms prohibition for a period of ten years. In 2013 he was convicted of Obstruction (Entrave) in Montreal, Quebec and received a suspended sentence and probation. He was convicted of Obstruction of a peace officer in 2015 again in Montreal and received a sentence mandating a $250 fine and a year of probation. In 2014 he was convicted of possession of a substance contrary to s. 4(1) of the CDSA and received a sentence of a fine in the amount of $100. In 2015 he was convicted of fraudulent impersonation contrary to section 403(1) of the Criminal Code and Obstruction of a peace officer. He received fines and probation. In 2016 he was convicted of one count of breaching his probation and a single count of public mischief. The sentence imposed was fines in the amount of $200 and $350 respectively, along with a year of probation.

[2] The letter was dated April 6, 2020 and was titled: Release Prisoners to Protect Public Health: Open Letter from Medical Professionals to Canadian Federal, Provincial and Territorial Governments. The letter contained over 100 signatures from medical professionals. *Scott Weinstein RN, listed as a signatory, is not a family relation.