COURT FILE NO.: DR(P)220/20 DATE: 2020 04 14 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN A. Mavridis, for the Crown

• and -

KENNY SEEGOBINSINGH D. Heath, for the Defence

HEARD: April 8, 2020, by teleconference

PUBLICATION BAN Publication is banned pursuant to s. 517(1) and s. 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the applicant (counsel are permitted to circulate these reasons to other counsel and use in court)

REASONS ON BAIL REVIEW APPLICATION

L. SHAW J.

Overview

1The accused/applicant applies for a bail review pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46. The applicant was detained following a bail hearing held on January 28, 2020 before Justice of the Peace D’Souza.

2In these reasons, I will refer to the applicant as “Kenny Jr.” and one of his proposed sureties as “Kenny Sr.” as they both have the same name. This is for the purpose of clarity only.

3Kenny Jr. is charged with a number of offences dating back to October 25, 2019 that deal primarily with break and enter offences.

4Kenny Jr. was born on September 6, 1998 and is currently 21 years of age. He has a criminal record as a youth for robbery in 2015 to which he received a sentence of 18 months’ probation. He does not have a record as an adult.

5This hearing was conducted, on consent, by way of a telephone conference. The evidence included an affidavit from Kenny Jr. who was not cross-examined. Affidavits were also filed by the two proposed sureties – Kenny Seegobinsingh Sr., who is Kenny Jr.’s grandfather, and Stephanie Seegobinsingh, who is Kenny Jr.’s aunt. Stephanie resides with her father Kenny Sr., her mother and her sister at 70 Allenhead Crescent, Brampton, Ontario. The sureties were cross-examined.

6Other evidence that was marked as exhibits, on consent, included information sheets prepared by the office of the Solicitor General dealing with institutional responses to COVID-19, one of which was specific to Maplehurst where Kenny Jr. is detained. The Crown also relied on a COVID-19 information sheet given to inmates.

7The applicant relied on a COVID-19 fact sheet prepared by the Criminal Lawyers’ Association that contained information, drawn from a variety of sources, regarding the virus. Also filed, on consent, was a letter signed by 113 medical professionals from across Canada, dated April 6, 2020 addressing concerns about the impact of COVID-19 on people who are incarcerated.

8There is no dispute that this is a reverse onus situation meaning that the onus is on Kenny Jr. to prove that he should be released.

Summary of the Allegations

9On October 25, 2019, Kenny Jr. was driving a vehicle that was pulled over for a Highway Traffic Act offence. A search of the car revealed gold jewelry, wrist watches, credit cards and documents not in the name of Kenny Jr. or of the two occupants in the car with him. He was charged with offences under the Highway Traffic Act and Canadian Automobile Insurance Act as he was allegedly driving while under suspension and did not have authorized plates or insurance. He was also charged with possession of property obtained by crime, contrary to s. 354(1)(a) of the Criminal Code. He was released on a Promise to Appear.

10Approximately one month later, on November 22, 2019, Kenny Jr. and another individual allegedly forced open the front door of a residence and entered it. Shortly after, Kenny Jr. and his associate were arrested. A search incident to arrest revealed that Kenny Jr. had possession of items belonging to residents of the home. He was also found to be in possession of items belonging to another individual which was taken from a home four days earlier.

11In addition, a search of the car driven by Kenny Jr. on October 25, 2019 determined that items found in the car were from break-ins that had occurred that day from two other residences.

12Kenny Jr. was charged with two counts of possession of property obtained by crime contrary to s. 354(1)(a) of the Criminal Code and five counts of break, enter and committing an indictable offence contrary to s. 348(1)(b) of the Criminal Code. He was released on a Form 10/11 with specific provisions.

13Less than two weeks later, on December 3, 2019, it is alleged that Kenny Jr. forced open the front door to another residence. Shortly after, he was arrested and found to be in possession of items including jewelry, coins, cash and watches belonging to persons from that residence. He was charged with possession of property obtained by crime, contrary to s. 354(1)(a) of the Criminal Code and break, enter and committing an indictable offence contrary to s. 348(1)(b) of the Criminal Code.

14Kenny Jr. was released on a Surety Recognizance to his mother, Michelle Seegobinsingh. The conditions included a term that he reside with his surety at 1555 South Parade Court, Unit 304, in Mississauga.

15On January 24, 2020, Kenny Jr. and an associate attended at a residence. After ringing the doorbell for ten minutes, they entered the home by breaking the front door. There were two children in the residence at the time – aged 11 and 13 – who hid in a furnace room. The police were called and when they arrived, Kenny Jr. and his associate were seen in the driveway. They were arrested and upon being searched, property belonging to the residents was found on Kenny Jr. and his associate. He was again charged with break, enter and committing an indictable offence and possession of property obtained by crime. He was also charged with failure to comply with a recognizance contrary to s. 145(2) of the Criminal Code.

Bail Hearing

16A contested bail hearing was held on January 28, 2020 before Justice of the Peace D’Souza. As Kenny Jr. was on previous releases, an application was made and granted under s. 523 of the Criminal Code to have the previous bails cancelled.

17Kenny Jr. was represented by duty counsel at the hearing. The proposed release plan include two sureties – his aunt, Crystal Seegobinsingh, and his grandmother, Barbara Seegobinsingh. (Barbara is Kenny Sr.’s wife and Crystal is his daughter.) The proposal was that Kenny Jr. would live with them at 70 Allenhead Crescent in Brampton and abide by house arrest conditions. The sureties would ensure that he was not to leave the house unless in the presence of one of them.

18Both sureties gave evidence and were cross-examined during the bail hearing. Their evidence was somewhat confusing and contradictory. For example, Crystal’s evidence was that Kenny Jr. had not been living with them at 70 Allenhead Crescent, whereas Barbara’s evidence was that he had been living with them at some period of time when he was required to live with his mother at her residence. Justice of the Peace D’Souza expressed concern about Crystal, stating that he had “lost faith in her ability as a surety” when she was not forthright about the fact that Kenny Jr. had been living there when he was supposed to be with his mother. He also found that he could not accept Kenny Jr.’s grandmother as surety, “given that whether blinded by love or whatever else, I can’t trust that she will abide by court orders here” (see p. 91-92 of the bail review transcript).

19Justice of the Peace D’Souza also found that Kenny Jr. was at a substantial risk of re-offending. His Worship also could not place faith in the release plan which he said had some cracks in it, and he did not trust what Kenny Jr. could do and who he associated with. Accordingly, it was found that Kenny Jr. had not discharged his onus under the secondary ground as set out in s. 515(10)(b) of the Criminal Code.

20With respect to the tertiary ground, Justice of the Peace D’Souza held that the allegations were serious and involved vulnerable victims in their homes. As such, he found that Kenny Jr. had not discharged his onus under the tertiary ground as set out in s. 515(10)(c) of the Criminal Code.

Position of the Parties

21The applicant’s position is that there has been a material change in circumstances and that as a result, there should be a bail hearing de novo. The two changes are the new proposed sureties and the COVID-19 global pandemic. His position is that based on the two new proposed sureties and the strict release plan, he has met the onus of proving that he should not be detained pursuant to the secondary and tertiary grounds.

22The Crown’s position is that the proposal of the new sureties is merely a re-shuffling of the deck of prospective sureties which does not amount to a material change in circumstances. The Crown relies on R. v. Ferguson, [2002] O.J. No. 1969 (S.C.) where Hill J. held at para. 17 that, “[o]nly where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.” Furthermore, in the recent decision of R. v. King, 2020 ONSC 1935, Goodman J. found that Ferguson is still good law in Ontario: para. 50.

23The Crown also takes the position that the COVID-19 pandemic does not, in itself, constitute a material change in circumstances and relies on the recent decisions of R. v. Jayakanthan, 2020 ONSC 1984 and R. v. Sappleton, 2020 ONSC 1871 which made that finding. Crown counsel agreed that there have been other decisions, released since March 16, 2020, when it was announced that the Superior Court of Justice would only be hearing urgent matters remotely, which have found that the COVID-19 pandemic does constitute a material change. She asserts that in those cases, the accused has demonstrated reasons why they are particularly vulnerable to the virus. She asserts that in this case, no such evidence was led.

24If I find that there is a material change, the Crown’s position is that the accused has not discharged his onus given his alleged re-offending behaviour after being charged and the breach of a prior recognizance. Furthermore, given the strength of the Crown’s case, the vulnerable victims and the potential length of sentence if convicted, Kenny Jr. has not met his onus for discharge under the tertiary ground.

Proposed Release Plan

25Kenny Sr. is proffered as one of the new sureties. He is 66 years of age and has resided at 70 Allenhead Crescent for just over one year with his wife and two daughters. It is a rental unit. Due to COVID-19, he is currently laid-off from his part-time employment as a Guest Services Representative at Woodbine Casino. Prior to his lay-off, he worked two to three times per week from 6:00 p.m. to 2:30 a.m. He has an RRSP with a value of $22,000. There was no evidence that he owned any other assets.

26Kenny Sr.’s evidence is that he is aware of all of the allegations against his grandson. He became aware of the charges during the bail hearing process in January 2020. His evidence is that Kenny Jr. lived with him and his wife and daughters between May 2017 and December 2019. After Kenny Jr. was released with his mother as surety in December 2019, he resided with her as per the terms of his recognizance. Kenny Sr. testified that Kenny Jr. would come to their house to visit, but would return each day to his mother’s house. During the Christmas holidays in 2019, Kenny Jr. also spent time at their home and stayed overnight. His mother was present with him at those times. He proposes that Kenny Jr. live with him at 70 Allenhead Crescent where he has his own bedroom.

27Kenny Sr.’s daughter, Stephanie, is also proffered as a surety. He proposes that he and Stephanie would supervise Kenny Jr. 24/7 under strict house arrest provisions. Kenny Jr. would not be allowed to leave the house unless with him or Stephanie. He will also ensure that Kenny Jr. attends court as required.

28According to Kenny Sr., Kenny Jr. respects him and would not jeopardize his financial well-being. Kenny Sr. also understands his role and responsibilities as a surety and will not hesitate to call the police if Kenny Jr. breaches or is about to breach the terms of his release. He is prepared to pledge the amount of $8,000 and understands that if Kenny Jr. breaches and he does not contact the police, the Crown may bring an application to ask the court to forfeit the entire amount he has pledged. It is also his evidence that he is aware that Kenny Jr. breached his release conditions on a prior occasion and he will be very strict with him to ensure he does not do so again.

29During cross-examination, he testified that while Kenny Jr. was living with them when he was charged in October, November and December 2019, he was not aware of the charges until the bail hearing in January 2020. He also agreed that at the original bail hearing, although he was not proffered as a surety, the intention was that he would be involved with supervising Kenny Jr.

30Stephanie is also proffered as a surety. She is 34 years of age and lives with her parents and sister at 70 Allenhead Crescent in Brampton. For the past seven years, she has worked from home as a remote agent for a telecommunications centre. She works between the hours of 9:00 a.m. and 5:00 p.m. and earns approximately $2,100 per month.

31Stephanie’s evidence is that Kenny Jr. respects her and will listen to her and abide by the rules placed on him. She is aware of all of the allegations against Kenny Jr. She also testified that while Kenny Jr. was living with them between May 2017 and December 2019, she was unaware of the charges against him until the bail hearing in January 2020. Her affidavit evidence echoed the evidence of her father regarding the proposed plan of release and her understanding of her role as a surety. She is prepared to pledge $2,000.

32Stephanie testified that she attended court on January 27, 2020 for a bail hearing and was prepared to act as Kenny Jr.’s surety. That hearing was adjourned to January 28, 2020, which she could not attend due to work commitments. She also agreed during cross-examination that the initial plan of release in January 2020 was that she would be involved with supervising Kenny Jr. as the entire family agreed to watch him.

Analysis

Has There Been a Material Change in Circumstances?

33A judge can review a Justice of the Peace’s decision with respect to the detention of an accused where new evidence is submitted that shows a material and relevant change in the circumstance of the case: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121. A generous and liberal interpretation should be given to the meaning of “new evidence” in the context of ss. 520 and 521 of the Criminal Code: St-Cloud, at para. 131.

34If there is a change in circumstances, bail release should be considered de novo: St-Cloud, at paras. 122-139.

i. Proposed New Sureties

35First, I will deal with the proposed new sureties. In my view, this is not a situation as described by Hill J. in Ferguson to be a re-shuffling of the deck. This is not the accused taking a “second kick at the can” and proffering new sureties hoping that they will be more acceptable to the court. I find that the new sureties are responsive to the reasons why detention was initially ordered.

36A change in sureties can be a material change if the original decision to detain was linked, connected to or based on the proposed sureties. The Crown asserts that the Justice of the Peace’s decision was not simply based on his concern about the sureties, but based on his finding that Kenny Jr. would not follow the release plan, regardless of who was proffered as a surety.

37Based on my review of the transcript from the bail hearing and the oral reasons delivered by Justice of the Peace D’Souza, it is evident that he was troubled by the evidence from the sureties. Their evidence appeared to suggest that they were either not truthful or that they had knowingly violated a court order by allowing Kenny Jr. to live at their home when he was required to live with his mother.

38The evidence of Kenny Sr. and Stephanie, which was not contested, clarifies the evidence given at the initial bail hearing regarding Kenny Jr.’s living arrangements. It is unfortunate that duty counsel did not re-examine Barbara at the initial bail hearing to clarify her evidence on cross-examination about when Kenny Jr. lived with her and her husband. Had the court been aware that there had been no violation of the prior release order, in my view, this would have impacted the justice’s decision on the secondary ground.

39I am satisfied that had Kenny Sr. and Stephanie been proffered as sureties at the initial bail hearing, with their cogent evidence regarding Kenny Jr.’s living arrangements, the Justice of the Peace would have found them to be suitable sureties. These sureties, who are now home 24/7, and the evidence they gave, would have impacted the Justice of the Peace’s decision on the secondary ground.

40I therefore find that the new proposed sureties constitute a material change in circumstances with respect to the secondary ground for detention.

ii. COVID-19 Pandemic

41If I am not correct in finding that the new proposed sureties constitute a material change in circumstances, I am satisfied that the threat to inmates caused by COVID-19 is a material change in circumstances with respect to the tertiary ground for detention.

42In that regard, I adopt the reasoning of Copeland J. in R. v. J.S., 2020 ONSC 1710, where she found at para 18:

In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest, is a factor that must be considered in assessing the tertiary ground.

43I also agree with Copeland J.’s comments at para. 19 of J.S. regarding the impact of COVID-19 on detention centres:

I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.

44The information provided by the Crown details the various steps taken at Maplehurst to reduce the risk of exposure to COVID-19. This includes the elimination of personal visits and the supply of cleaning products. The Crown also introduced information about the number of persons tested and the limited number of positive results. At this time, there are no reported cases at Maplehurst.

45As noted in R. v. Rajan, 2020 ONSC 2118, at para. 62, the efforts being made by institutions across Canada are laudable. These are, however, unprecedented times in our history. Despite significant restrictions in all aspects of daily lives and precautions found in many institutional settings such as long-term care facilities and even hospitals, there have been thousands of people who have been infected by the virus in Canada. As of today, there are close to 25,000 confirmed cases in Canada. That number will grow by the time these reasons are released.

46This virus has had an impact of historical proportions on almost every aspect of our daily lives. All but essential businesses have closed. Schools are closed and students are now being taught virtually. We are urged by public health officials to stay home. The term “social distancing”, unheard of by most until three weeks ago, has now become a ubiquitous term used daily. It is now recommended by public health officials that we wear masks in public if we cannot maintain two meters of distance from another person so as to prevent spreading the virus by those who are asymptomatic or undiagnosed.

47This was not evidence led at this hearing, but I find that I can take judicial notice of COVID-19 and the impact it is having on our society.

48According to the information presented by the Crown, as of April 6, 2020, there has been a 26% reduction in the number of inmates in custody. This reduction in capacity has been achieved by changes to intermittent inmates who will not have to serve time on weekends and by early release for inmates near the end of their sentences. Non-custodial options are also being considered by the court for individuals charged with non-violent or less serious offences. In addition, the institutions are assisting with the use of virtual hearings so that those incarcerated do not have to travel to court. All of these steps are being taken in order to prevent the spread of COVID-19 in institutions by maintaining physical or social distancing as has directed by public health officials.

49Unfortunately, despite these efforts, as in other institutions, it is simply not possible to maintain the recommended social or physical distancing while incarcerated that we have been told is critical to stop the spread of the disease.

50There is no evidence that Kenny Jr. suffers from any condition that would place his health at a higher risk due to COVID-19. However, I do not agree with the Crown that this court needs evidence that Kenny Jr., while in jail, is more at risk of contracting COVID-19 than if he was not in jail or that he is a more vulnerable individual. In R. v. C.J., 2020 ONSC 1933, Conlan J. found that “it is incontrovertible that a jail setting is not conducive to the types of physical distancing and other safety measures being recommended by all of the health authorities to help protect oneself against the virus. To demand some ‘evidence’ in support of that is, with respect to any contrarian view, unnecessary”: para. 9.

51It has been impressed on citizens of Canada and elsewhere that we have a collective responsibility to each other. Our individual actions are not only meant to keep ourselves safe, but also to prevent the spread of the disease amongst the community. Accordingly, even if Kenny Jr. does not have any heightened risk factors making him more susceptible to contracting the virus or having a more serious response to it, what is equally important is that he not be a source of spreading the disease to others in the inmate population, many of whom are at heightened risk. The focus is not just on Kenny Jr.’s health, but also his ability to spread the virus should he become infected but remain asymptomatic. Indeed, this is the reason why there has been a change in the position of public health officials who now recommend wearing masks in public if social distancing cannot be maintained.

52To suggest that COVID-19 does not constitute a material change in circumstances seems to be incongruous with the method by which this bail review application was conducted. At this time, all hearings in the Superior Court of Justice are being conducted by way of virtual courts, either through video or audio conferences. There has been a profound change to the justice system in a very short period of time. It has required significant collaborative efforts by a number of legal organizations such as the Ontario Bar Association, The Advocates’ Society, the Federation of Law Societies and the Criminal Lawyers’ Association, together with the government and members of the judiciary to ensure that access to justice is maintained and that the justice system continues through the development of a virtual court system.

53For these reasons, I am satisfied that the risks faced to the global community by COVID-19, which are amplified in institutional settings, constitutes a material change in circumstances. As such, I do not have to find that the Justice of the Peace was in error, but can consider the bail hearing anew.

Should the Applicant be Released?

54Pursuant to s. 515(10)(a) of the Criminal Code, detention of the accused is justified where the detention is necessary to ensure the accused’s attendance in court. This is known as the primary ground. It is not at issue in this proceeding.

55According to the secondary ground in s. 515(10)(b) of the Criminal Code, detention is justified where it is necessary for the protection or safety of the public having regard to all of the circumstances. The likelihood that an individual will commit a criminal offence does not in itself provide a basis for detention. Rather, bail is denied for those who pose a “substantial risk” of committing an offence and where this substantial likelihood endangers the “protection or safety of the public”: Criminal Code, s. 515(10)(b). If there is a substantial likelihood that the accused will not comply or cooperate with the terms of bail, they will likely be denied bail. When looking at the secondary ground, the question is whether the proposed bail plan sufficiently reduces the risk factors.

56The tertiary ground, as set out in s. 515(10)(c) of the Criminal Code, provides that detention of an accused is justified to maintain confidence in the administration of justice having regard to all of the circumstances, including the list enumerated in that section. This basis for detention does not focus on the accused and what they might or might not do, but rather on the public’s perception or attitude towards release of the accused. In Rajan, Harris J. thoroughly reviewed the tertiary ground for detention and concluded that the public’s confidence in the criminal justice system has been significantly altered by the threat of COVID-19 in the jail setting: paras. 36-74.

57In this case, the Crown is seeking detention on the secondary and tertiary grounds. The Crown conducted a brief and concise cross-examination of the two proposed sureties, Kenny Sr. and Stephanie. Kenny Jr. had been residing with them up until December 2019. Both testified in a straight-forward fashion and both presented as credible and well-meaning. They are now fully aware of the allegations against Kenny Jr. and understand their responsibility to supervise him closely, 24/7. Unlike the sureties proffered at the initial bail hearing, their evidence was clear and direct. I have no concern that they do not fully understand the gravitas of their role as sureties.

58The proposed plan is for strict house arrest. Both Kenny Sr. and Stephanie will be home, as Stephanie works from home and Kenny Sr. is currently unemployed. If Kenny Sr. is called back to work, Stephanie will still be home to supervise Kenny Jr. as Kenny Sr. only works evenings.

59The Crown’s position is that even if the sureties are suitable and fully intend to carry out their duties with diligence, the concern is that given Kenny Jr.’s history of re-offending and breaching release orders, he remains at substantial risk to re-offend. He has thus not discharged his onus under the secondary ground.

60Even in light of the global pandemic, the court must remain vigilant and mindful of the risk posed by the release of violent offenders. As stated by Harris J. at para. 74 of Rajan, the risks posed by COVID-19 do not constitute a “get out of jail free card”. Those who constitute a serious physical threat to the public must be detained in pre-trial custody. Violent offenders should not be released into the community simply to reduce the prison population. Each decision must be made on a case-by-case basis.

61While Kenny Jr. has allegedly re-offended on three recent occasions, the allegations against him do not involve acts of violence nor the use of any weapons. While there were young and vulnerable children in the home he allegedly broke into in January 2020, the evidence suggests that that was not done deliberately as he allegedly rung the doorbell for an extended period of time before breaking the door to enter the home. This property-type offence, not involving weapons or acts of violence, leads me to conclude that the proposed release plan involving house arrest will ameliorate or reduce the risk that Kenny Jr. will re-offend or breach the terms of his release.

62I therefore find that Kenny Jr. has met his onus under the secondary ground.

63With respect to the tertiary ground, according to s. 515(10)(c) of the Criminal Code, detention is justified to maintain public confidence in the administration of justice, having regard to all 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.

64As noted above, this ground focuses on the attitude of the public regarding the release of the accused on bail. When considering this section, if there is a strong case against the accused, who has allegedly committed a serious offence, involving vulnerable victims, facing a lengthy sentence if convicted, the public would lose confidence in the administration of justice if the accused was released. In those cases, detention will be ordered: St-Cloud, at para. 88.

65In this case, the Crown appears to have a strong case against the accused. For a number of the allegations, he was arrested shortly after the break and enters occurred. He was also found with property in his possession belonging to residents of the homes. While there was no violence or weapons involved, there were young victims in one of the homes. If convicted, the accused will likely face a penitentiary term. Those factors all favour detention under the tertiary ground.

66However, in my view, COVID-19 has changed the landscape when assessing the public’s confidence in the administration of justice. As found in Rajan, King, and J.S., the elevated risk posed by the virus on detained persons, as compared to being on house arrest, must be considered in assessing the tertiary ground.

67While there is no evidence that Kenny Jr. has any health issues making him more vulnerable to the virus, the risk extends beyond the risk to his own health. While incarcerated, he also poses a risk to being exposed to the virus and spreading it among other inmates and those who work in the institution. Furthermore, while there is no evidence of any positive findings within the population of Maplehurst, it is too late to wait until there are reported cases to take steps. Now is the time, before there are reported cases, to be proactive and prevent any infections. (Since I heard this application, it has come to my attention that there may now be an inmate diagnosed with COVID-19 at Maplehurst and that some correctional officers were in contact with that individual.)

68On consent, defence counsel filed an open letter to the federal, provincial and territorial governments signed by 113 medical professionals from across Canada, dated April 6, 2020. That letter addressed the concern about the impact of COVID-19 on the prison population. According to the letter:

The prison environment heightens the risk of transmission for both prisoners and staff. Conditions are crowded, and 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 daily for medications, share common spaces such as dining halls, and use common telephones, bathrooms, and more. They also lack access to some of the critical supplies people in the community are using to keep themselves safe, such as hand sanitizer, cleaning products and sometimes soap. Conditions such as lockdowns could actually increase close human contact, since multiple officers would be required to transport each prisoner around the institution.

These conditions, combined with the health profile of prisoners, create the perfect storm for COVID-19 transmission, illness, and death. If people in prison become infected, it will be essentially impossible to stop the spread of COVID-19 within a correctional facility.

69The letter goes on to caution that the window to act to prevent the spread of COVID-19 in correctional facilities is closing. Those who signed the letter called on the governments to stop admitting people unless absolutely necessary and to release as many people as possible. The letter ended by stating:

We need to act now and take drastic measures to protect all Canadians, including people in detention.

70The means by which this hearing was conducted speaks to the importance we have now placed on social/physical distancing. The hearing was conducted by way of teleconference. Parties on the call were in different cities throughout the province. The sureties were cross-examined in their home by the Crown. During their cross-examination, defence counsel observed them through FaceTime on another phone line. He identified them by way of their driver’s license, and his observations on FaceTime confirming that they were one in the same person. These arrangements were agreed to by counsel. This spirit of cooperation will hopefully continue when we resume our new “normal” operations. I thank counsel for their civility and cooperation.

71This process speaks to the priority we now place on physically distancing ourselves from each other to prevent the spread of the virus. It is our combined societal efforts that will hopefully wrestle this virus to the ground. These efforts are simply not possible for those who are incarcerated. As noted by the medical professionals, if the virus is to take hold in the institutions, it will be impossible to stop. This will also result in further strain to our medial system.

72In this matter, but for the COVID-19 pandemic, detention of Kenny Jr. may have been authorized under the tertiary ground. In my view, the reality of the virus and its impact must now be considered as a circumstance to consider under s. 515(10)(c) of the Criminal Code. The public’s confidence in the criminal justice system requires that. The threat of COVID-19 therefore pulls in the favour of release.

73To be clear, the concern is not just the health of the inmates, but all those who work in the system and are vital to the safety and security to all who are incarcerated and employed in these institutions. Their health must also be protected.

74In my view, given the strict terms of the proposed release plan, and considering all the factors under the tertiary ground, Kenny Jr. has discharged his onus to show that his release on those terms would not undermine public confidence in the administration of justice.

Conclusion

75The bail review application is granted. I order that Kenny Jr. shall be released.

76There will be a release order with named sureties as follows:

i. Kenny Seegobinsingh in the amount of $8,000. ii. Stephanie Seegobinsingh in the amount of $2,000.

without deposit or valuable security, but with conditions as follows:

i. To reside with your sureties at 70 Allenhead Crescent, Brampton, Ontario and abide by the rules of your sureties. ii. To remain in your residence at all times unless you are in the direct and continuous presence of one of your sureties, except for medical emergencies involving you or one of your family members. iii. To not communicate directly or indirectly with the following individuals: John Christian, Aaron Walters, Robert Ramnarine, Richard Mercier, Karen Mercier, Cui Rong Zhang, Maria Franco, Qiu Jin Zhang, Jifeng Zhang, Shen Lian He, Phillip Lee, Phou Miou; Douangmala Miou, Honey Anna Liwang, Madelyn Merten, Jasmine Merton, Liam Merton, Robert Molnar, Hong Tran, Azib Hanis, Bibi Hanis, Fayyaz Hanis, Farhad Hanis, Jessica Krajacic, Theomir Krajacic, and Avery Maharaj. iv. To not be within 100 metres of the following address: 104 Barr Crescent, Brampton, Ontario; 51 Binder Twine Trail, Brampton, Ontario; 4 Commodore Drive, Brampton, Ontario; 4942 Rosebrush Road, Mississauga, Ontario; 5201 Swiftcurrent Trail, Mississauga, Ontario; 72 Donna Drive, Brampton, Ontario; and 104 Kempenfelt Trail, Brampton, Ontario. v. To not possess any break and enter tools. vi. To not occupy the drivers’ seat of any vehicle. vii. To attend court as necessary.

77The accused is remanded to June 18, 2020 at 9:00 a.m.