COURT FILE NO.: CR-20-00000097-00BR DATE: 20200415 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Tony Sferruzzi, for the Crown Applicant
- and -
STEVEN PAUL McARTHUR David North, for the Defendant Defendant/ Respondent
HEARD: April 9, 2020, at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling Re: Crown Bail Review under s. 521 of the Criminal Code
Introduction
[1] This proceeding was heard by teleconference on April 9, before the Easter weekend, during the COVID-19 pandemic, and after the Chief Justice of the Ontario Superior Court of Justice suspended regular court operations.
[2] The accused, Steven Paul McArthur, currently faces very serious charges of (i) aggravated assault on N.R. (the “Complainant), and (ii) with failing to comply with the terms of the recognizance he was on from an earlier alleged offence, at the time of these offence, alleged to have occurred on December 29, 2019.
[3] Mr. McArthur was arrested and charged on February 1, 2020. At a reverse onus show cause hearing on February 7, 2020, Justice of the Peace H. Worku (the “J.P.”) released Mr. McArthur, with a surety and conditions.
[4] On this review application under section 521 of the Criminal Code (the “Code”), the Crown asks this court to vacate Mr. McArthur’s release order and detain him pending his trial. The Crown asserts that the decision by the J.P. to release Mr. McArthur was “clearly inappropriate” in the circumstances, and that there has been a “material change in circumstances” in the matter, namely allegedly “new” video footage evidence of two of the three alleged attacks, evidence that Crown counsel says would now support the detention of the accused on the tertiary ground.
[5] The defence responds that the Crown has not demonstrated either (i) that the decision of the J.P. was “clearly inappropriate” in the circumstances, or (ii) that the alleged material change in circumstances is actually a change at all, material or otherwise. As such, on an analysis of the decision of the J.P. based on the law applicable to review hearings and the step principles set out in R. v. Antic, 2017 SCC 27, the defence claims that the Crown has not met its onus and that this application should be dismissed.
[6] I agree. In my view, it is not open to me to vacate the J.P.’s order, considered in its entirety and contextually applying the review principles mandated in R. v. St. Cloud, 2015 SCC 27. Further, regardless of whether the presence of video surveillance footage constitutes a material change in circumstances in this case, and in my view it does not, what is quite clear today is that there is a different material change in circumstances. It is the ominous presence of the COVID-19 pandemic in our communities and our correctional institutions, only 2 months after the accused was released. I address all of these matters in the reasons that follow.
Background
[7] At the time of these alleged offences, Mr. McArthur was on a recognizance arising from another impaired driving charge on August 6, 2018. At about 9:00 pm on that evening, while driving his 2004 red Dodge Caravan and evidently having consumed alcohol, Mr. McArthur allegedly skidded through the intersection of Donlands Avenue and O’Connor Drive, went up onto the sidewalk, and struck the building at 302 O'Connor Drive. The large two-foot hole left in the cinder-block foundation of that establishment and the skid marks that started 10 meters east of Donlands Avenue suggest that Mr. McArthur’s vehicle was speeding at the time of the accident. Civilian witnesses immediately called police.
[8] Mr. McArthur was arrested on scene. A roadside breath test registered a Blood Alcohol Concentration of 50 to 100 mg per 100 ml of blood, an “Alert” reading. Police also found 7.32 grams of a substance believed to be hashish beside Mr. McArthur’s wallet. Mr. McArthur was taken from the scene to hospital for chest pain, but then to 55 Division where he was held for a show cause hearing.
[9] Mr. McArthur was released on his own Recognizance on August 8, 2018. His release included a term to not have care and control of a motor vehicle. Nine days later, that term was varied to permit him to operate a motor vehicle between 6:00 am and 9:00 pm, but only for employment. Mr. McArthur was on this recognizance when the current alleged offences occurred.
[10] At about 3:00 pm that day, the Complainant arrived at New Cancey’s Bar at 1347 Danforth Road. Mr. McArthur arrived at the bar sometime later and sat at a table adjacent to the Complainant. They were both consuming alcohol. Mr. McArthur and the Complainant knew each other. They had both attended at that bar on other occasions.
[11] Mr. McArthur became involved in a loud argument with the patrons at his table. The Complainant allegedly told Mr. McArthur to “stop acting like a goof”. This allegedly caused Mr. McArthur to lunge across the tables and punch the Complainant two to three times in the face. Patrons separated them. Mr. McArthur left the bar.
[12] Mr. McArthur returned just after 9:00 pm. The Complainant was outside smoking a cigarette at the time. Mr. McArthur attacked him again, and once again patrons intervened and pulled Mr. McArthur off the Complainant.
[13] Mr. McArthur drove his vehicle to the rear of the building, but then returned to the front, exited his vehicle, approached the front of the bar and looked inside. The Complainant had left the bar. Mr. McArthur got back into his vehicle and drove away in pursuit, all allegedly captured on video by the Bar’s CCTV equipment.
[14] As the Complainant was walking away along Danforth Road, he became aware that Mr. McArthur had located him again. Video surveillance footage from a TTC bus evidently shows the Complainant starting to run as Mr. McArthur parked, crossed Danforth Road and tackled the Complainant, allegedly punching him nine times in the face. Mr. McArthur then calmly returned to his vehicle and drove away.
[15] This attack took place immediately adjacent to a TTC bus that was occupied by several passengers and the driver. They got off the bus to assist the Complainant. He was taken to hospital. His medical treatment included surgery to reconstruct his nose, and assessments diagnosing three fractures to his left orbital bone and two fractures to his right orbital bone.
[16] Mr. McArthur was arrested on February 1, 2020. Between the date of the incident and the arrest, police tried to locate Mr. McArthur. They called him on his cell phone and left messages, but Mr. McArthur did not return any of those calls or voluntarily make contact with the police.
[17] At the conclusion of the February 7, 2020 reverse show cause hearing before the J.P., Mr. McArthur was released on a recognizance with a surety. While he acknowledged that it was a difficult borderline case, the J.P. concluded that the accused had met the onus, and released him with a surety of $2,500 and conditions. The J.P.’s reasons concluded specifically that the detention of the accused was not justified on either the secondary, or the tertiary grounds.
The Governing Legal Principles
[18] Section 515(10) of the Code spells out the only statutory grounds for the pre-trial detention of an accused. In summary, those grounds are:
(i) flight risk, that is, the need to detain the accused to ensure his attendance at court;
(ii) where the detention is necessary for the protection or safety of the public, having regard to all the circumstances including any “substantial likelihood” that the accused will re-offend or interfere with the administration of justice if released from custody; and
(iii) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the strength of the prosecution’s case, the gravity and circumstances of the offence and the likelihood that a conviction would yield a potentially lengthy term of imprisonment.
[19] The Supreme Court instructs in R. v. Morales, [1992] 3 S.C.R.711 that bail is not to be denied for individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Rather, it is to be denied only for those who pose a “substantial likelihood” of committing an offence, and only where that substantial likelihood endangers the protection of the safety of the public.
[20] In St-Cloud, 2015 SCC 27 as well, I am reminded that a judge on a bail review must remember that the accused is still presumed innocent at this stage of the criminal proceedings, regardless of the gravity of the offence, the strength of the prosecution's case, or the possibility of a lengthy term of imprisonment.
[21] The review is to be broad, and the focus is correctness, but it as Trotter J.A. observes in his authoritative text on The Law of Bail in Canada (3rd) (Thomson Reuters: Toronto):
Given the preferred standard of review (i.e “correctness”), considerations relating to the reasonableness of the J.P.’s conclusions on fact and law become superfluous. This is not to say that no importance ought to be attached to the conclusions reached at first instance. Findings of fact and determinations of credibility, features of first-instance decision-making which normally attract some measure of deference on appeal or review, ought to be afforded similar treatment under ss. 520 and 521. Of course, it is open to either party to adduce evidence which displaces the wisdom of relying on these types of findings. [6] [my emphasis]
[22] In considering whether the release decision of the J.P. should stand or fall, I have reminded myself that I am not permitted to simply substitute my assessment of the evidence, but am permitted to intervene only if the J.P. gave excessive weight to one relevant factor or insufficient weight to another.
The Personal Circumstances of the Accused
[23] Mr. McArthur is 56 years old. He is self-employed as a plumber. He lives by himself.
[24] As the J.P. observed and aptly described it, Mr. McArthur has a “terrible” record. Although there is a recent gap of several years, his lengthy goes back to 1981 and includes 4 separate penitentiary sentences in addition to reformatory jail sentences. Mr. McArthur’s preferred crime of choice for the first two thirds of his career appears to have been property related, namely, break, enter and theft, most recently in 2011. He was convicted of assaults more than 20 years ago, and more recently of uttering threats, but even that was more than seven years ago. His only “recent” conviction was a 2015 conviction for driving while impaired, apart from being recommitted in 2013 for violating his terms of statutory release. That latter conviction is his only fail to comply offence over the entirety of his long record.
[25] There was no specific evidence presented at the show cause hearing, or before me, of any particular physical or medical disabilities or weaknesses that affect Mr. McArthur, apart from counsel acknowledging that he has the same reduced immune systems any person does who is getting close to 60 years of age, and that he has been in the penitentiary on several prior occasions which has potentially exposed him to various diseases, such as tuberculosis, hepatitis and HIV, which may be present from time to time in the correctional institutions owing to the backgrounds of many members of the prison population.
The Show Cause Hearing and Decision of the J.P.
[26] The defence called only one witness at the show cause hearing, Mr. Wesley Vibert, a gentleman in his early 80’s who has known Mr. McArthur for over 10 years. Mr. Vibert is a mechanic and it was through that role that he came to know and be a friend of Mr. McArthur. They each live alone, but about 10 minutes apart. The proposed plan put before the J.P. involved a $2,500 surety being posted by Mr. Vibert, with Mr. Vibert keeping in daily contact with Mr. McArthur by cell phone to ensure that Mr. McArthur was complying with the conditions that were proposed to govern him. The J.P. found, and I accept, that putting up $2,500 was a significant amount of money that Mr. Vibert could not afford to lose.
[27] The conditions that were put before the J.P. included that (i) Mr. McArthur reside at an address approved by his surety, Mr. Vibert; (ii) notify the Officer in Charge of that address within 24 hours of release; (iii) be subject to a curfew and remain at his residence between the hours of 9:00 pm to 5:00 am; (iv) have no contact directly or indirectly with the complainant; (v) that he not go within 500 metres of any place where the complainant may be, except for court appearances; (vi) that he not attend at New Cancey’s Bar on Danforth Avenue where the altercations started; (vii) that he not possess any weapons; and finally, of importance in the present context, (viii) that he not attend any establishment licensed to serve alcoholic beverages EXCEPT: for while on a service call as a plumber, and to specifically notify the OIC of any intent to do so and prior to attending any such place for that purpose.
[28] It is important in the context of this review proceeding to understand the circumstances of the show cause hearing and the position taken by counsel at that time. The hearing took place at the Scarborough courthouse on a frantically busy Friday, February 7, a week after Mr. McArthur was arrested. The matter was quite literally squeezed in that day. Indeed, I understood from counsel that the J.P. permitted the matter to go ahead even though it took an hour and a half and ate materially into the midday break. Nevertheless, the matter was completed and the J.P. gave his decision on the spot. The J.P.’s reasons may not be linguistically perfect, but in my view some of the alleged deficiencies in his reasons for releasing the accused need to be considered and viewed in that context.
[29] The burden of persuasion rested on the defence at that reverse onus hearing. Defence counsel’s submissions initially focused on the step principles in Antic. Since the accused was on a lowest-end self-recognizance for the 2018 drinking and driving offences, he argued that it was inappropriate in the circumstances to jump to the top of the ladder and an order of detention. The transcript shows that the J.P. understood that point, but was not satisfied with that alone, and specifically asked Mr. North for his position on each of the three grounds under s. 515(10), not just the step principles.
[30] On the tertiary ground, defence counsel insisted that an informed member of the public who understood the principles that govern bail in this country, would not be offended if Mr. McArthur were to be released on strict conditions. On the primary ground, counsel said there was no history of Mr. McArthur not appearing for court. He did fail to return the officers’ calls before he was arrested, but that was not, nor was there any other evidence of flight risk.
[31] Despite Mr. McArthur’s record, since his last conviction was the driving offence in 2015 and he had not committed any offences of violence for many years, counsel argued the risk of re-offending under the secondary ground was addressed by the surety release proposal with strict conditions. Moreover, he suggested this may turn out, when more evidence is known, to have been an assault prompted by a grudge between two men, a one-off event, in light of the acknowledged but presently unknown past history between the complainant and the accused. Regardless, there was no evidence to suggest that, if released, Mr. McArthur would be at risk of randomly attacking and assaulting members of the public. He would more likely adhere to his bail terms and try to get his business back on track, and prepare for his trial.
[32] At that hearing, and at this review hearing, Crown counsel opposed Mr. McArthur’s release on all three grounds stipulated in s. 515(10) of the Code. He argued Mr. McArthur’s failure to return calls to the police was indicative of flight risk. On the secondary ground, the essence of the Crown’s position was that Mr. McArthur has been charged with very serious assault charges, that Mr. Vibert would not be able to supervise him, that the release plan and conditions were inadequate, and that the negatives of his 40 year record supported concern for a substantial risk of reoffending. Finally, given the acknowledged availability of allegedly strong video surveillance footage as evidence to support the Crown’s case, the acknowledged aggravated level of the assault, and the likelihood of a substantial custodial sentence if convicted, Crown counsel asserted those factors all supported detention on the tertiary ground as well.
[33] At the end of the show cause hearing, while acknowledging that it was a difficult decision, the J.P. determined that Mr. McArthur should be released on the surety plan that was before him and subject to the terms and conditions included in that plan.
Analysis
[34] In addition to the breach of recognizance charge, the accused presently faces a very serious criminal charge of aggravated assault against the Complainant. If made out, that charge could command a significant multi-year penitentiary sentence. See for example, R. v. Tourville, 2011 ONSC 1677 at paras. 27-30.
[35] While the accused is presumed to be innocent of these charges, the Crown’s case does appear to be strong, given the presence of video surveillance footage from two separate CCTV’s showing two of the three successive parts of the alleged assault, an assault that required surgery to repair the Complainant’s smashed nose and treatment for his bilateral orbital bone fractures. But these same circumstances were present when the show cause hearing was conducted before the J.P.
[36] Crown counsel claims that there has been a material change in circumstances since the show cause hearing because the video surveillance is now in police possession. I will address the issue of material change in circumstances below, but first address the question whether the release order was “clearly inappropriate,” applying the analytical framework that is imposed upon me as the reviewing judge.
(i) Is the decision “clearly inappropriate”?
[37] St-Cloud is clear and forceful on the nature of the detention review hearing and the powers of the reviewing judge. Wagner J., now C.J.C., concludes that the review processes set out in ss. 520 and 521 of the Code do not confer open ended discretion on a reviewing judge to vary the initial decision whether to detain or release the accused, but rather provide a hybrid process and remedy. In the absence of new evidence, I am in no better position as the reviewing justice to evaluate the need to detain the accused than the J.P. was on the show cause hearing. Indeed, I am in a worse position, because I do not have the surety here before me: I only have a transcript.
[38] St. Cloud instructs that I must first consider and determine whether the power of review is appropriate to exercise in the circumstances of this particular case. Those circumstances are threefold:
121 It will be appropriate to intervene if the J.P. has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the J.P. who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[39] In my opinion, viewed in that way and considering his decision as a whole in all of the circumstances of this case, the J.P. was correct in concluding that the accused should be released and that his detention was not justified on any of the three grounds.
[40] Crown counsel challenges the reasons of the J.P., pointing to the alleged deficiency of particular statements or calling into question whether his expression of reasons should survive the judicial review that is inherent in this process. As reviewing judge, however, I need not and must not look for perfection. In R. v. Sheppard, 2002 SCC 26, Binnie J. explained that judicial decision-makers need to give reasons that are transparent and permit their reasoning and process of logic to be understood by a reviewing court. They need to show the route that led them to their conclusion. So together with considering whether the result is appropriate, I must consider whether the reasons of the J.P. permit meaningful review on this section 521 application. In my view, for the reasons that follow, they do.
[41] It is evident to me from his Reasons, that the J.P. was acutely aware of a number of matters and had them in the forefront of his mind when he decided to release Mr. McArthur on this surety plan with these conditions. In my view, these facts show that the J.P. had a very good understanding of the evidence and the persons that were before him:
(i) The J.P. knew and correctly articulated the law relative to the balancing exercise he was undertaking. Specifically he knew the “step rules” and that Antic confirms the law in Morales and Hall that pre-trial release should be the norm, not the exception. But he was not satisfied with that alone. He knew and demanded that both counsel address him specifically on each of the primary, secondary and tertiary grounds, and not just the step principles. He heard their respective positions, and was able to evaluate their submissions against his findings on the evidence;
(ii) The J.P. knew that Mr. McArthur had a “terrible” record but that the existence of a bad record is not on its own just cause to deny bail;
(iii) The J.P. knew that apart from the alleged assault occurring outside curfew hours and at a bar, there was no evidence that the accused had previously violated any of the conditions of that earlier recognizance;
(iv) The J.P. knew that Mr. Vibert had come forward as the proposed surety, and had pledged a significant amount of money to secure Mr. McArthur’s release.
(v) The J.P. had the direct opportunity to assess Mr. Vibert’s veracity, reliability and demeanour as he observed his evidence in chief and cross-examination. He assessed the quality and reliability of Mr. Vibert as a surety in the following words:
The impression of the Court is that Mr. Vibert is a very reasonable, decent human being. He gave truthful testimony. As long as he has known you, he has found you to be a reasonable person, and as surety that he would do his best to make sure that you follow all the conditions, and if you do not, he will call the police, and be relieved of his responsibility as a surety.
Fairly, and to his credit, Crown counsel confirmed on this review that he took no issue with whether Mr. Vibert would call the police immediately if Mr. McArthur were to deviate from the terms of his release or failed to adhere to Mr. Vibert’s terms of supervision.
(vi) The J.P. knew the gravamen of the alleged offence. He described it as “revolting”, “animal behaviour.” He specifically stated:
The allegation is really shocking [and] when I was listening to the Crown enumerate what happened on that particular day, but I won’t dwell on that, but I am shocked. The Crown is saying, "I have a strong case. There is video." And definitely that you will be convicted of the offence that you have committed. [My emphasis]
Yet, the J.P. correctly acknowledged that even such grave allegations do not mean the accused should not be released with appropriate supervision, so that he can defend himself being outside.
(vii) At one point in his reasons, the J.P. notes that Mr. Vibert had commented in his testimony on the possibility of Mr. McArthur’s business closing were he to be detained, but the J.P was emphatic, and correctly noted that had no relevance to the question of release. He specifically said that the decision whether to release is not about whether Mr. McArthur’s business would close if he were detained. He states: “Obviously, you made that decision on that day, but that is not my primary concern. If it is to be closed, so be it. You [will have] caused it to be closed.”
(viii) Finally, the J.P. knew and mentioned that Mr. McArthur had not responded to police efforts to reach him by his cell phone and that Mr. McArthur’s failure to respond “does not go to your credit. It goes against you”. However, there is no indication that the J.P. was concerned that failure raised primary ground concerns, and there was no evidence that Mr. McArthur would not attend court as required under Mr. Vibert’s supervision.
[42] Against this thorough understanding of his role, the guiding principles, and the facts of the matter, the J.P. then described his conclusions, first on the tertiary ground against the background of Mr. McArthur’s record and second on the secondary ground.
[43] Relative to the tertiary ground, Crown counsel challenged the J.P.’s use of a reference to “notorious offenders.” Certainly I accept that the tertiary ground does not look to questions of the “notoriety” of accused persons in determining whether they should be detained on that ground. In my view, when seen in the context of the whole decision, the J.P.’s language focuses on a possibly unique background between the accused and the complainant, presently unknown, and accepts that the public would not be offended or lose confidence in the administration of justice if Mr. McArthur were to be released because he is not:
…what they call a "notorious offender" that the public is aware of, and these notorious acts happen quite often, and when the public sees you again and again out in the street, that they will lose confidence in that administrative justice.
Instead, the J.P. concludes that Mr. McArthur’s criminal antecedents have not yet reached a point where he is a particular “notorious” offender in respect of whom the public cries out for protection. The language is stilted and perhaps unfortunate, and its focus may be slightly off, but in the context of the reasons as a whole, the manner in which I am required to consider them, I am satisfied that the J.P. did give consideration to the proper tertiary ground factors and having done so, reached the conclusion that he did.
[44] Finally, I turn to the J.P.’s reasons on the secondary ground. His words speak for themselves:
With the secondary ground, I do not think you have had any dealings with the victim, and this is the first incident as far as the police know. It is not a repeated offence that happened, so there is also that understanding that it is a one-time incident, although violent and revolting.
[But] There is also now this individual who has known you for ten years. The gentleman, the mechanic, who has known you, but he thinks that he can supervise you and have you under his supervision so that you can defend yourself by being outside. As I said, whether or not your business will be closed is not my concern. If you have that business closed by your actions so be it. I do not see anywhere where you have violated [a] court order and that stands to your credit.
Now, you have been in custody for six, seven days. That does not mean that it is the first time that you have a taste of it, but the record shows that is something that you are aware of. But on the strength of Mr. Vibert, I will give you one more chance and release with you with some strict conditions, and if you are a serious human being you will never violate these conditions otherwise you will come back here and we will keep you in custody.
[45] Given his knowledge of the circumstances and considered as a whole and in context, I find that the J.P.’s reasons are clear, transparent and explain why he reached the decision to release Mr. McArthur. This Justice has over a decade of extensive experience in the trenches of bail courts and show cause hearings. Even if not perfect, he knew what considerations apply, and he applied them. He balanced all of the relevant considerations. He did not give undue weight to any one factor over another. This was not merely a “coin toss.” Indeed, the J.P. specifically acknowledged that it was a difficult decision. At the end of the proceeding, he specifically, directly and forcefully addressed the accused:
THE COURT: Let me tell you, I had a difficult time between keeping you in custody and releasing you. I had difficult time and [so if] you step out of these conditions; I can guarantee you that Mr. Vibert will lose his $2,500, and you will stay in custody until the matter is tried. You understand that?
STEPHEN MCARTHUR: Yes, Sir.
[46] The issue before the J.P. was not one of absolute certainty. Rather the question he faced was whether or not there was a reasonably manageable risk, if released into the community under the proposed plan, that the likelihood of the accused re-offending was not substantial. R. v. Walton, [2005] O.J. No. 48 (S.C.J.) He concluded that risk was manageable with the proposed plan. Looking at the entirety of his decision, in my view it was open to the J.P. to reach the conclusion he did on the evidence before him. His decision is not “clearly inappropriate”. I would not disturb the decision on this ground.
(ii) Is there a material change in circumstances?
[47] As noted, Crown counsel claimed that the fact that police now have the video surveillance footage of Mr. McArthur’s actions in their possession, as distinct from knowing it was coming, is a material change of circumstances justifying a hearing de novo.
[48] In R. v. Baltovich, however, Justice Rosenberg of the Court of Appeal observed that a material change in circumstances, for this purpose, would require additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in the governing provisions. More recently, Trotter J.A. has remarked that to qualify, the change in circumstances must be “of such magnitude that the order of the lower court can no longer stand.”
[49] In my view, the change from “anticipation” to “possession” of that video surveillance footage is not a material change in circumstances in this case. The existence of the video evidence and its explicit content was well known at the time of the show cause hearing. It is plain from his reasons that the J.P. fully understood the gravamen of the attack, and knew that it was all captured on video. He specifically referenced it in his decision. I advised Crown counsel that I rejected this position during his submissions at the hearing.
[50] What is quite clear today is that there is a different material change in the circumstances of this case, a material change that will likely be present in every other bail review we conduct for the foreseeable future. It is the ominous presence of the COVID-19 pandemic in our communities and our correctional institutions.
[51] In the intervening period of two months since the show cause hearing, the virus has caused the world to endure a painful and jolting transformation. None of us, or our systems are immune to its effect, including the criminal justice system. In R. v. Brandon Cain, [2020] ONSC 2018 London-Weinstein J. observes that it would have been unimaginable only two months ago that a bail review hearing would be conducted by teleconference as this one was, with none of the participants able to actually see each other, or that the accused would not be physically before the court. And as the days progress, we increasingly understand that it may be many months yet before we return from this “new normal” status, if we ever fully do.
[52] In Cain, as in this case, the accused was not present during this hearing by teleconference. At the commencement of the hearing I raised the point with defence counsel that Mr. McArthur was not present. While Mr. North objected in the present circumstances to the Crown now seeking to have Mr. McArthur detained and his bail vacated, he confirmed that he was prepared to proceed and that no challenge would be made. Subsection 515(2.2) makes clear that alternatives to physical presence are permitted, including “by suitable telecommunication device, including telephone, if satisfactory to the Justice” and s. 520(3) shows inferentially that the accused need not be present but can be ordered to be.
[53] The first decision of this court dealing with the COVID-19 pandemic was Copeland J.’s March 20, 2020, decision in R. v. J.S., 2020 ONSC 1710. In that case, she found that the greatly elevated risk posed to detained inmates from the COVID-19 virus as compared to being at home on house arrest is not determinative, but a factor that must be considered in assessing the tertiary ground. R. v. J.S., at para 18. She did not suggest there was any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy and attempt to limit the spread of the virus, but took judicial 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. Copeland J. released the defendant.
[54] In his March 30 decision in R. v. T.K., 2020 ONSC 1935, A. Goodman J. observes that Copeland J. was specifically addressing the tertiary ground concerns in J.S., rather than the primary and secondary ground concerns that arose before him. He agreed with Copeland J. regarding the impact of COVID-19 as it applies to the detention centres, but concluded those concerns also applied to the primary and secondary grounds. He determined that he was satisfied with the new release plan under all the circumstances, and released the accused from detention, stating that:
60 While the consideration of this risk factor in J.S. is focused under the tertiary ground, I would go further and find that the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials (that are currently suspended) is also a valid factor when considering the secondary ground for detention; in particular for non-violent offenders on a bail review.
[55] There have been a number of other judicial interim release decisions issued across this Province between March 20 and the date of this hearing, all defence applications for the release of detained individuals due to COVID-19, all but two evidently related to domestic or publicly violent crimes. In all of those cases, the court has acknowledged that the risks of COVID-19 are a factor to be taken into account on bail reviews, but that they are not determinative on their own. R. v. Nelson, 2020 ONSC 1728 (March 23, 2020); R. v. Budlakoti, Unreported, and R. v. C.J., 2020 ONSC 1933 (both March 27, 2020); R. v. Cain, above (April 1, 2020); and R. v. Fraser, [2020] O.J. No. 1411 and R. v. Hastings, 2020 ONSC 2083 (both April 3, 2020).
[56] As of April 9, however, when this hearing was conducted just before the Easter weekend, neither counsel nor I were aware of any decisions considering COVID-19 in the context of a Crown application, like this one, to revoke an accused’s bail and cause him to be detained, as in this case.
[57] Since mid-March when emergency measures were proclaimed to deal with the pandemic, circumstances have worsened. Events have changed rapidly, from week to week, and indeed from day to day, with a corresponding rise in the numbers of individuals who are infected, who are being treated, and sadly, who have died. Correctional facilities will not likely be able to remain immune to these developments.
[58] Crown counsel has provided me with material suggesting that the COVID-19 situation is under control in the jails, that prisoners are being queried upon admission for signs of the virus, and that numerous other protective measures have been put in place.
[59] The authorities did issue an “Institutional Services Response to COVID-19”, dated April 6, 2020, just three days before this hearing, stating that Ontario “has implemented several strategies to limit the effects of COVID-19 on our inmate population and our correctional staff” and “have made great progress over the past weeks to reduce the population in our institutions”, noting that the annual average population has not been as low as the current population since the 1989/1990 fiscal year. To the credit of the Corrections officials, the document outlines many steps being taken to protect the population in Ontario’s correctional facilities, to test, to segregate, to try to minimize the risk of spreading the virus, and expressing confidence in the care being provided to the inmate population.
[60] Ironically, however, on the same day one hundred and thirteen doctors, nurses and other front-line health care providers signed an open letter to Canadian Federal, Provincial and Territorial Governments, expressing “deep concern about the impact of the COVID-19 pandemic on people in prisons and jails,” and calling upon those authorities “to act swiftly to protect them in the interest of public health and human rights”.
[61] These health care professionals emphasize that the conditions in correctional facilities, where prisoners cannot adequately socially isolate nor wash their hands with frequency, combined with the health profile of prisoners, “create the perfect storm for COVID-19 transmission, illness, and death.” They bluntly state that “[i]f people in prison become infected, it will be essentially impossible to stop the spread of COVID-19 within a correctional facility.” They stressed that the window to act to prevent the spread of COVID-19 in correctional facilities is closing more and more with each passing day, and urged the authorities, including the courts, to stop detaining persons in jails and prisons wherever possible, and to release as many prisoners as possible.
[62] As will be evident, I agree with the numerous decisions of other judges of this court that the existence of the COVID-19 virus constitutes a material change of circumstances that permits a reviewing judge to conduct a de novo hearing under s. 520 of the Code. However, there is no purpose to conducting such a review here.
[63] Even if COVID-19 can itself constitute a material change in circumstances, in my view it is not open to a reviewing judge to use the existence of that change alone to reopen a hearing where the accused was previously released, absent a conclusion by the reviewing judge that the decision of the J.P. was clearly inappropriate, or otherwise failed one of the two other tests set out in paragraph 121 of St. Cloud, that is, an error of law or the presence of new evidence, neither of which is present in this case.
Conclusion
[64] For these reasons, the application is dismissed. So long as he remains in compliance with his terms of release, Mr. McArthur shall remain on release with Mr. Vibert as his surety, and with the terms and conditions imposed. I rely on and am confident that Mr. Vibert will respect his specific obligation to the court as surety to call police first, and ask questions later should there be any non-compliance by the accused. Equally, I am confident that the plan of release, and in particular the distancing terms, will protect the safety and security of the complainant. Obviously, any violation of the terms of this release will immediately result in the arrest of the accused, and the likelihood of a detention order pending trial.
Michael G. Quigley J.
Released: April 15, 2020