Her Majesty the Queen v. Arjuna Paramsothy

NEWMARKET COURT FILE NO.: CR-18-4159-00BR

DATE: 20200416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ARJUNA PARAMSOTHY

Applicant

Brian McCallion and Greg Elder, for the Respondent

Sean Robichaud, Shalini Gunawardhane and Minu Walia, for the Applicant

HEARD: April 8, 9 and 14, 2020

RULING IN RELATION TO BAIL REVIEW BROUGHT PURSUANT TO S. 522 OF THE CRIMINAL CODE

jUSTICE v. CHRISTIE

Overview

[1] Matthew Arcara was shot and killed in his vehicle parked on a residential street in Richmond Hill on the evening of May 16, 2018. A few hours later, two men entered Mr. Arcara’s condominium in Toronto. Two male occupants of that condominium were held at gunpoint and bound while the intruders searched for items. One of the occupants was able to call 911 and the police arrived. Arjuna Paramsothy (“The Applicant”) was arrested in a stairwell of the condominium building. Two Glock handguns were found near him. In his possession were keys to Mr. Arcara’s unit, Mr. Arcara’s driver’s licence, and a cell phone registered to Mr. Arcara. Brandon Hudson was arrested several days later. The Crown has alleged that Mr. Paramsothy and Mr. Hudson planned and executed the murder of Mr. Arcara in order to rob him.

[2] The Applicant in these proceedings, Arjuna Paramsothy, stands jointly charged, along with Brandon Hudson, with the following offences which are alleged to have occurred on May 16 and 17, 2018:

a. first-degree murder to the person of Matthew Arcara, contrary to section 231(2);

b. robbery of Donato Catizzone with a firearm, contrary to section 343;

c. robbery of Nicholas Price with a firearm, contrary to section 344;

d. unlawful confinement of Donato Catizzone, contrary to section 279(1)(a);

e. unlawful confinement of Nicholas Price contrary to section 279(1)(a); and

f. killing a dog, contrary to section 445(1)(a).

[3] The Applicant brought an application for release pursuant to section 522 of the Criminal Code, R.S.C. 1985, c. C-46 in December 2018. At that time, no date for a preliminary hearing had been set. Evidence was heard on December 10, 2018 and closing submissions were heard on January 9, 2019. The release plan proposed involved three sureties (his father, mother and sister), house arrest at his parents’ home with the constant presence of a surety and electronic monitoring, with limited exceptions to attend court, for medical appointments and to meet with counsel. It was proposed that the sureties sign in the range of $150,000 to $300,000. A third surety, Mr. Paramsothy’s younger sister, Arathi, was also prepared to act as an additional surety and had assets totalling approximately $10,000.

[4] The Honourable Madam Justice Fuerst released her decision on January 10, 2019, and detained the Applicant on both the secondary and tertiary grounds. With respect to the secondary grounds, the court found that the surety plan, which included the Applicant residing with his parents and his sister at their home where they lived at the time of these events, to be insufficient to ease any secondary ground concerns. The court stated that, despite the fact that they all lived together, the family had been none the wiser about Mr. Paramsothy’s prior actions. It was also of concern that the Applicant’s family were likely to be Crown witnesses at trial, given that they had all been interviewed by police. With respect to the tertiary grounds, the court found that all four factors under section 515(10)(c) fell in favour of the Crown. While the court acknowledged the Applicant’s health issues and his inability to prepare a defence, these concerns did not outweigh the other four factors as enumerated.

[5] The Applicant now brings this application pursuant to section 522 of the Criminal Code on the grounds that:

a. A material change in the Applicant’s circumstances has occurred in light of the COVID-19 pandemic that Canada is facing;

b. A material change in the Applicant’s circumstances has occurred given the evolution of the landscape of this case since the original application for judicial interim release;

c. The Applicant has a strong plan of release with constant and direct supervision from his sureties, as well as constant electronic monitoring of his whereabouts;

d. No substantial likelihood exists that the Applicant will commit any criminal offences, or interfere with the administration of justice, in the event that he is released;

e. There are no tertiary ground concerns that outweigh the strength of the proposed surety plan;

f. The release of the Applicant is essential for the Applicant to make full answer and defence; and

g. The Applicant has some underlying conditions which may cause him risk if he contracts COVID-19.

There is no suggestion that Regional Senior Justice Fuerst erred in detaining the Applicant; rather this application is brought solely on the basis of a change in circumstances, in relation to the case, the Applicant personally and the world at large. The proposed plan of release is substantially the same, including house arrest with his parents, constant supervision, electronic monitoring, and substantial assets. The only real changes are that his sister is no longer being suggested as a surety and the residence has now changed, as the Applicant’s parents have since moved to Mount Albert.

[6] As for changes in the world at large, on March 11, 2020, the World Health Organization officially categorized the COVID-19 virus a global pandemic. Since then many parts of the world, including Canada, and specifically the province of Ontario, have implemented social distancing and quarantine measures to help prevent the spread of this virus. According to the Applicant, this presents a material change in circumstances which warrants a review of the Applicant’s request for judicial interim release.

[7] As a result of concerns surrounding the spread of this virus, on March 15, 2020, the Superior Court of Justice suspended all non-urgent matters. The Order stated in part:

To protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice (SCJ) is suspending all regular operations, effective Tuesday, March 17, 2020, and until further notice.

All criminal, family and civil matters scheduled to be heard on or after Tuesday March 17, 2020 are adjourned. This includes all telephone and videoconference appearances scheduled prior to March 17, 2020, unless the presiding judicial officer directs otherwise. Lawyers and litigants with matters scheduled on or after March 17, 2020 are advised not to attend the courthouse.

The Court will continue to hear urgent matters during this emergency period. The Court plays a fundamental role in our constitutional democracy. Access to justice for the most urgent matters must always remain available. This Notice identifies the urgent civil and family matters that shall be heard during the suspension of operations, and the process for bringing such matters before the Court.

This suspension will cause substantial inconvenience to those with matters before the Court. The decision to engage this emergency process was not made lightly. However, the health and safety of the public, as well as all justice participants is a priority.

[8] Trial dates in this matter were set, specifically two weeks of pre-trial motions were scheduled to begin on April 14, 2020, followed by a one-week break, and then the commencement of a four-week trial on May 4, 2020. As a result of the suspension, these trial dates have been vacated, and will likely not be rescheduled for some time, given the uncertain nature of the pandemic and its associated restrictions. Given these delays, the Applicant will now spend further time in custody awaiting his trial.

[9] The Applicant has submitted that there are significant dangers facing Ontario’s inmates in the wake of this global pandemic, due to the inability to implement recommended social distancing and proper hygiene protocols. This, the Applicant submitted, is a material change in circumstances that gives this court jurisdiction to review his detention.

[10] Further, at the time of the previous hearing, there was a concern regarding the Applicant’s parents being both sureties and potential Crown witnesses. Since that time, a preliminary hearing has been held, at which the Applicant’s sister was called as a witness, but his parents were not. The Applicant’s parents were also not subpoenaed for the trial which was scheduled to commence this spring. The Applicant submitted, therefore, that any concern the court previously had on the secondary grounds as a result of these circumstances, are no longer valid. With respect to the Applicant’s sister, she is not being proposed as a surety at this time and, in fact, is willing to change residences if necessary.

[11] It is the Applicant’s position that the proposed surety plan is sufficient to mitigate the Court’s concerns of any substantial likelihood for re-offence or risk of bringing the administration of justice into disrepute.

[12] Due to these extraordinary circumstances, this application was heard through teleconferencing. The Applicant was able to be present on the teleconference for the first day of the hearing (April 8), but was not able to be present for the remaining days. All parties, including the Applicant, consented to this matter proceeding by teleconference and, for portions of it, in the absence of Mr. Paramsothy. Mr. Paramsothy was represented by counsel.

Jurisdiction

[13] Initially, a concern was raised by the Crown regarding the jurisdiction of this court, the Superior Court of Justice, to hear a further bail review where the charge is a listed section 469 offence. Reference was made to s. 522(4) which states:

(4) An order made under this section is not subject to review, except as provided in section 680.

[14] Section 680 of the Criminal Code states:

680 (1) A decision made by a judge under section 522, a decision made under subsections 524(3) to (5) with respect to an accused referred to in paragraph 524(1)(a) or a decision made by a judge of the court of appeal under section 320.25 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court …

[15] These sections might leave the impression that any subsequent bail review, where the charge is a listed section 469 offence, must be considered by the Court of Appeal.

[16] However, after considering further the case law on this issue, the parties now agree that this court has jurisdiction to hear this matter, given that this application does not challenge the decision of the original bail review judge, but rather alleges a material change in circumstances. In R v. Whyte, 2014 ONCA 268, 310 C.C.C. (3d) 335, Tulloch J.A. for the court stated as follows:

[21] The relevant practice in Ontario can be summed up as follows: Where an applicant is detained pursuant to a charge for an offence listed in s. 469 of the Code, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant's grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, the proper course is to seek review by a court of appeal under s. 680 of the Code: R. v. Daniels (1997), 1997 CanLII 3670 (ON CA), 35 O.R. (3d) 737, [1997] O.J. No. 4023 (C.A.), at p. 746 O.R. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson (2009), 95 O.R. (3d) 309, [2009] O.J. No. 1284, 2009 ONCA 205, at para. 5; R. v. Klymchuk, 2007 CanLII 15804 (ON SC), [2007] O.J. No. 1799, 220 C.C.C. (3d) 439 (S.C.J.), at pp. 447-48 C.C.C.; R. v. Saleh, 2007 CanLII 11727 (ON SC), [2007] O.J. No. 1375, 252 C.C.C. (3d) 521 (S.C.J.). This second avenue reflects the "considerable common sense in returning to the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release": R. v. Boyle, [2006] O.J. No. 5094, 2006 CanLII 42662 (C.A.), at para. 3.

This court was also referred to the cases of R. v. Robinson, 2008 CanLII 47026 (ON SC), [2008] O.J. No. 3641 (S.C.) and R. v. Saleh, 2007 CanLII 11727 (ON SC), [2007] O.J. No. 1375 (S.C.) in which the Superior Court accepted jurisdiction in such circumstances.

[17] The Applicant, in the case at bar, concedes that the decision of Justice Fuerst was correct and valid in ordering detention back in January 2019, however seeks a review on the basis of a change in circumstances, pursuant to s. 522. It is clear that this Superior Court of Justice has jurisdiction in this case.

Material Change in Circumstances

[18] As to what amounts to a material change in circumstances, the categories are not closed and depend upon the specific circumstances of the case. In R. v. Daniels (1997), 1997 CanLII 3670 (ON CA), 35 O.R. (3d) 737 (C.A.), a bail pending appeal case, the purported material change consisted of more comprehensive legal arguments, including a new ground of appeal. Doherty J. held that these arguments will “seldom” amount to a material change in circumstances, however, it was sufficient in that case. The Court stated:

[43] Usually, subsequent applications based on an alleged change in circumstances depend upon some event which occurred between the initial application and the subsequent application. On occasion, subsequent applications are brought when a part of the trial record becomes available and adds significant weight to the merits of the appeal. Here, the alleged change in circumstances rested in large measure on the restatement in a more comprehensive form of legal arguments made on the first application. In addition, one new argument was put before Laskin J.A. I agree with Laskin J.A. that these kinds of arguments will seldom amount to a material change in circumstances justifying release. I would not, however, interfere with the conclusion of Laskin J.A. that this was one of those rare cases where a rearticulation of arguments previously made supplemented by a new ground of appeal amounted to a material change in circumstances which affected the outcome of the public interest inquiry required under s. 679(3)(c).

These comments by the Court of Appeal would suggest that the types of things that will amount to a material change in circumstances are fairly broad.

[19] A number of years after Daniels was decided, the Court of Appeal offered some further guidance, and held that the changes must address the considerations that underpinned the original bail judge's decision. In R. v. Whyte, the court held as follows:

[25] Courts have recognized that a material change in circumstances will warrant judicial interim release where, for example, in the bail pending appeal context, additional sureties become available, R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 47 O.R. (3d) 761 (Ont. C.A. [In Chambers]), or where the applicant offers a new legal argument and rearticulates existing arguments in a more comprehensive form, Daniels, supra.

[26] In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge's refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material.

See also R. v. C. (A.A.), 2015 ONCA 483 at para. 56

[20] As previously stated, the Applicant has submitted that, essentially, two material changes in circumstances have occurred since his original hearing which culminated in his detention in January 2019. Those changes are:

a. The proposed sureties, the Applicant’s parents, are no longer expected to be witnesses for the Crown, as they were not called as witnesses at the preliminary hearing and have not been subpoenaed to the trial;

b. The COVID-19 virus, unknown to most at the time of the original bail hearing, has now been declared a global pandemic. Measures that need to be taken to avoid the spread of this virus, such as social distancing and proper cleaning, are either not possible or are not being followed at the institution where he is being held. This puts the Applicant, and the larger inmate population, at significant risk of contracting the virus. Any outbreak at the institution will have an overwhelming, and possibly unmanageable, effect on the health care system and society.

Sureties No Longer Witnesses

[21] The fact that the Applicant’s parents were expected to be called as witnesses for the Crown certainly was referred to at the original bail hearing. In her reasons for decision, Justice Fuerst stated:

Defence counsel emphasizes the prospect of constant supervision in the home by sureties if Mr. Paramsothy is released on bail. However, each one of the three sureties were interviewed by the police, and each one of them is a potential Crown witness on issues including Mr. Paramsothy’s relationship with Mr. Hudson and his access to the firearms retrieved by the police in the condominium stairwell. For an accused charged with first degree murder to live and have constant unmonitored contact with three Crown witnesses raises a real potential for interference with the integrity of the evidence gathered by investigators.

While those circumstances were not the only concerns expressed by Justice Fuerst, they were certainly a factor in the detention.

[22] The Applicant submitted that the circumstances have now changed. The Applicant’s parents were not subpoenaed or called as witnesses at the preliminary hearing. Further, a trial date was set for the beginning of May (which has now been vacated), and the Applicant’s parents were not subpoenaed. Having said that, however, the Crown candidly stated that while he would like to avoid calling the Applicant’s parents, if possible, he does not rule out the possibility. Even if not called as part of the Crown’s case, initially, there is always the possibility that they would be called in reply depending on how the case unfolds.

[23] While the Crown would like to avoid calling the Applicant’s parents as witnesses, it has not been ruled out. The fact remains that the parents have been interviewed by the police and may well have relevant evidence to give at the trial. Given the uncertainty of this matter and how it may unfold at trial, this court can not conclude this to be a material change in circumstances.

COVID-19

[24] COVID-19 has changed the world in an unprecedented way. Life is different.

[25] It has changed the way people live on a daily basis. Many people have been laid off due to reduced work hours or complete business closures. Many of those who are fortunate enough to continue in their employment are presently working from home. Those who are still working on the front line are taking as many precautions as possible to avoid personal contact. Students around the world have had their education put on hold or have been shifted to the virtual learning arena. People are unable to gather for worship. Everyone is being asked to limit their social contact, and the term “social distancing” has become a common household phrase.

[26] The number of people with COVID-19 continues to increase. The public is constantly being provided with new and changing information as to how to stay safe and how to keep others safe. At this point, there is simply no certainty as to what new measures will need to be put in place to combat the growing number of cases. At this point, there is simply no certainty as to the length of time measures will need to be in place.

[27] This court agrees with the Applicant that, due to the extraordinary circumstances, it is very difficult, if not impossible, for the Applicant to present an evidentiary record that it might otherwise have been able to present. The Applicant requests that this court rely on information on the COVID-19 crisis through medical sources, media reports, governmental advisories, and the Applicant himself. The Applicant submits that this is “credible and trustworthy” evidence, even though not in affidavit form normally required under Rule 20.05 of the Criminal Proceedings Rules. The Applicant requests that this court consider Rule 1.04(1), which states:

1.04(1) These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

[28] The Rules also provide for the fact that the court can dispense with compliance. Rule 2.01 states:

2.01 A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.

[29] There is no question that it is necessary in the interests of justice to dispense with the strict compliance with Rule 20.05 at this time. Certainly, in the wake of this pandemic, the interests of justice call out for some flexibility.

[30] Further, section 518(1)(e) of the Criminal Code allows the court to consider evidence which is “credible and trustworthy” in the bail context.

[31] The Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 made it clear that bail hearings are to be dealt with expeditiously, and therefore rules of evidence must be somewhat relaxed to allow the parties to present arguments to the court without a lot of lead time. Having said that, there will be times where one of the parties needs to present evidence. See St-Cloud at paras. 107-9, 129; See also R. v. Cheung, 2016 BCCA 221 at para. 54.

[32] It is the view of this Court that the Applicant does not need to provide evidence of certain things that are undeniable at this point, such as:

a. COVID-19 is highly contagious;

b. The virus is transmitted through small particles which spread while coughing, sneezing, or even talking to someone in close proximity;

c. The virus can be spread by touching contaminated surfaces. Public health officials have advised that the virus can last on certain surfaces for several days; and

d. Public health officials have stated that the best way to avoid transmission is to thoroughly wash your hands, avoid touching your face, consistent cleaning of surfaces and social distancing of at least two metres.

[33] The Applicant has filed an affidavit from Dr. Aaron Orkin, a physician, epidemiologist, and Assistant Professor in the Department of Family and Community Medicine at the University of Toronto. Dr. Orkin is the Medical Director of the St. Joseph’s Health Centre COVID-19 Assessment Centre. Further, as Population Medicine Lead for Inner City Health Associates, he plays a central role in planning and implementing strategy to respond to COVID-19 among people experiencing homelessness in Toronto. This affidavit was prepared in order to provide expert testimony at an unrelated detention review hearing in Cornwall, Ontario on April 6, 2020. However, the affidavit has been provided to other counsel to use in a similar context.

[34] In the case at bar, counsel have agreed that the court receive this affidavit as credible and trustworthy evidence pursuant to s. 518 of the Criminal Code. However, the Crown does take issue with some of the opinions expressed by Dr. Orkin and questioned that some of his conclusions went to the ultimate issue in the case and, in fact, in some respects, that he, inappropriately, took on the role of advocate.

[35] Some of the relevant points that can be taken from Dr. Orkin’s affidavit, and which are not contentious, are as follows:

a. COVID-19 is a novel coronavirus that was declared pandemic by the World Health Organization on March 11, 2020. “Pandemic” is declared when a new disease for which people do not have immunity spreads globally beyond expectations.

b. Every province and territory in Canada have declared a state of emergency in response to COVID-19. Health Canada has declared that the risk of infection and of health harms to Canadians from COVID-19 is high.

c. Best-modelling suggests that Ontarians will experience the peak of the COVID-19 pandemic within the next 7 weeks, likely before June 2020. On April 3, 2020, the Government of Ontario suggested that the peak of this curve is likely to occur in mid-April 2020.

d. The population health status of people experiencing incarceration is substantially worse than the rest of the public, in other words having higher rates of chronic disease including cardiorespiratory disease, mental health challenges and addiction. People experiencing incarceration have a higher chance of intensive-care admission if they get COVID-19.

e. There is no specific treatment or therapy for COVID-19. The health impact of COVID-19 can only be managed through population health strategies to reduce the number of new people getting infected. This means that the health care system’s most vital resources are not overwhelmed by a sudden bolus of sick people requiring intensive care and scarce resources. If the healthcare system is not overwhelmed, fewer deaths will occur.

f. The central public measure to reduce the number of new people getting infected is social distancing, in other words, reducing social contact. In Ontario and across Canada, various public health orders have been put in place to implement these measures, such as cancelling schools, forbidding gatherings of more than 5 people, and closing all non-essential workplaces.

g. Two meters of physical distance between people is considered an absolute minimum. However, this distance has not been studied for long-term exposure, and does not refer to vertical separation, such as on bunk beds where droplets would shower down over longer distances.

h. Overcrowding and social distancing are mutually exclusive concepts.

i. There is no substitute for appropriate social distancing. Other interventions such as hand hygiene, face masks, screening for symptoms are all important but less effective.

j. Preventing outbreaks in congregate living facilities is a top priority for a “flatten-the-curve” strategy for four reasons:

i. Outbreaks in tight spaces happen extremely quickly and are near-impossible to control once they occur.

ii. People living in congregate living facilities tend to have underlying comorbidities that make them more prone to serious adverse outcomes from COVID-19.

iii. Outbreaks in such circumstances can overwhelm health care systems, meaning that scarce resources are consumed by local congregate living outbreaks.

iv. Outbreaks in such facilities serve as tinder for the fire in more generalized outbreaks. People in these settings, including staff who work there, may transfer disease into the general population.

k. Experience with cruise ships, hospitals and long-term care facilities show that it is extremely difficult (near impossible) to limit a coronavirus outbreak in congregate living settings, especially those with close quarters, shared toileting and eating facilities, or service personnel moving between people confined to their rooms (who serve as vectors).

l. Coronavirus survives between a few hours and a few days on surfaces such as plastic and metal. Effectively, continuous cleaning is required to reduce disease transmission on high-touch surfaces where populations are gathered.

[36] Beyond these propositions, the Crown questioned Dr. Orkin’s ability to speak to what is actually occurring in the incarceration setting, and that rather the institutions themselves are in the best position to say what they are and are not doing. This court would agree with this position. Dr. Orkin stated that, “The degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently located in these facilities.” While Dr. Orkin can certainly speak to the risks involved with congregate living generally, he should not be speaking to the specific risks at any particular institution without knowing all of the specific facts, including the size of the institution, the number of people at the institution, the protocols in place, and whether those protocols are being followed, the implementation of which may vary from one institution to another.

[37] The Crown also questioned the basis for Dr. Orkin stating the following in his affidavit:

From a medical and population health perspective, it is in the best interest of the community at large that an aggressive approach be taken to depopulating custodial facilities, be they jails, prisons, penitentiaries, reformatories or detention centers, and whether they be for males or females, youths or adults. So long as individuals are forced to congregate in relatively small spaces where they cannot keep at least 2 meters apart from each other at all times, and where they share bathroom, shower, telephone and other facilities, and where people from the outside (new inmates, correctional staff, volunteers) occasionally populate their space, COVID-19 will have a perfect environment in which to spread both inside and then outside the facilities.

The state of health of a particular inmate is irrelevant to my recommendations. Whether an inmate is old or young, frail or robust, in good health or suffering from pre-existing conditions, my opinion would remain the same: from a public health perspective, during the current pandemic it would always be in the best interest not only of the inmate but of the community at large to release the inmate to a less populated environment such as their own home.

The Crown submitted that Dr. Orkin’s conclusions seem based on the assumption that everyone in custody has a home to go to upon release. The Crown submitted that this conclusion is radical, misinformed, and that his opinion comes from a policy view point. The Crown questioned where people would go if the jails are aggressively depopulated with no consideration to other important factors. The Crown submitted that this would put pressure on other systems, such as shelters, where the risk of transmission would in turn increase. The Crown submitted that this should affect the weight of his opinion, as depopulation into an uncontrolled community shelter cannot be responsible.

[38] Dr. Orkin’s opinion on depopulation comes from a “medical and population health perspective”, as he stated in his affidavit. The court, of course, has many other considerations to take into account, and must apply legal principles to its determination. It is the view of this court that Dr. Orkin’s opinion on depopulation fails to consider the practical realities and options available to many who are incarcerated. This does affect the weight to be given to these comments.

[39] The Crown further asks that this court disregard his opinion that “it is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada, and therefore extremely likely that almost all inmates in these settings will be exposed in one way or another. The only available method to substantially reduce the resulting infections and deaths is therefore to reduce the population in those settings.” This court agrees that Dr. Orkin does not appear to have sufficient information about the incarceration setting to make such bold statements. This is speculative. While this court certainly agrees with the general proposition and logic that reducing the population will reduce the resulting infections and deaths, it would seem to be an overstatement to suggest the extreme likelihood that COVID-19 will arrive at nearly every correctional facility in Canada, without knowing all the facts.

[40] This court accepts a great deal of Dr. Orkin’s evidence, in that it provides helpful information about the circumstances of the pandemic and, more particularly, the risks involved in congregate living. This court accepts that the risks of congregate living do not only affect those in that environment, but that this can have a significant and overwhelming affect upon the public at large if outbreaks occur. However, in certain respects, Dr. Orkin’s evidence and opinions go beyond a permissible scope, and as discussed, it must be given little to no weight on those points.

[41] There is no question that while a large percentage of the public are able to take precautions in these uncertain times, persons who are incarcerated are in a very different situation, without full control of their movement and environment. The Applicant has personally experienced the following:

a. On March 20, 2020, a cellmate was transferred into the Applicant’s cell from the Toronto South Detention Centre. This was the same day that the Toronto South Detention Centre reported a confirmed case of COVID-19 amongst their correctional officers, leading to the self-isolation of three other officers. According to the Applicant, his cellmate told him that he was asked screening questions, but his temperature was not checked, and no testing was done before he was brought to the unit. The Applicant agreed that his cellmate did not have a fever, cough, difficulty breathing, or tiredness.

b. He is not provided with hand sanitizer because of the alcohol content in the solution. He washes his hands with 3-in-1 shampoo, which he must ration, because he also uses it to clean the rest of his body whenever he uses the communal showers.

c. He is not provided with gloves.

d. From the Applicant’s perspective, the day rooms, where inmates spend most of their days, are irregularly cleaned, and all cleaning is done by designated inmates. The Applicant stated that it was impossible for 25 people to be 2 metres apart in this room.

e. The Applicant testified that the time he is required to be in his cell varies. In the afternoon, it is between 90 minutes to 3 hours. Overnight, he is required to be in his cell from 8 p.m. to 7 a.m. or 8 a.m. The cell has a solid metal door with a hatch and a window. Through the window, Mr. Paramsothy is able to see about a third to a half of the day room. It was suggested to him that the institution has cleaners other than inmates, to which he disagreed. However, he ultimately agreed that he only occupies a small part of the institution and he could not say whether there were areas being cleaned outside of his visual area.

f. The Applicant agreed that he had a sink in his cell and that is where he keeps his 3-in-1 soap. He agreed that there was a toilet in the cell, as well as two bunks, one for him and one for his cellmate.

g. The inmates are provided with a water-based solution, on an irregular basis, which requires hand-mixing, and is dispensed from a spray bottle from which the spring function has been removed – leading to ineffective disbursement of the unknown cleaning solution. The inmates clean with mops and brushes which are rarely cleaned.

h. Most programming has been suspended.

i. In the Applicant’s observation, correctional officers do not change their gloves between interactions, despite the COVID-19 crisis. Gloves they use to open doors and handle inmates are generally the same gloves that are used when handling meals. Meal trays are provided without any lid or covering.

j. Meals are served through a “hatch” which are not cleaned regularly. Multiple inmates touch the tray before it is given.

k. Correctional officers are not wearing masks.

l. Inmates have been taught practices for monitoring and self-assessing symptoms. They have been instructed to cough or sneeze into their sleeves. However, a shortage in clothing changes and soap provisions means that the Applicant and other inmates are forced to cough into the same contaminated clothes repeatedly.

m. The Applicant states that social distancing is not possible. The inmates share the day room, tables, phones, sinks, showers, and washrooms. He described his cell as too small to keep any distance from his cellmate. The Applicant also stated that suggesting social distancing to other inmates could result in altercations.

n. In his affidavit the Applicant stated that the repercussions for reporting symptoms are severe and akin to solitary confinement. If they report, they will be immediately isolated in “the hole”. These cells are notoriously unclean and void of any sanitation products. However, when he testified, he stated that if he had symptoms, he would have to report this to a correctional officer and that he then did not know where he would be taken. He was fearful as to where he would go. He was also fearful of the prospect of being seen talking to a correctional officer privately.

o. According to the Applicant, once symptoms are reported, the inmates fear that correctional officers will begin to leave work citing unsafe work conditions. A number of officers have already walked off the job in some institutions in the wake of this pandemic. A shortage of staff means that the institution goes into lock down. See Philpott J. and Pate, K., “Prison population is highly vulnerable to COVID-19”, March 24, 2020, online: Toronto Star: www.thestar.com/opinion/contributors/2020/03/24/prison-population-is-highly-vulnerable-to-covid-19.html

p. The Applicant is afraid that if he develops symptoms, he will not be able to report them, fearing repercussions from other inmates for alerting the staff and effectively causing a lockdown. Fearing repercussions from fellow inmates for bringing about these circumstances, the Applicant believes that inmates would stifle coughs and not report medical conditions.

q. The Applicant reported that it is also more difficult to see a physician at this time for ongoing health concerns.

[42] The challenges of protecting against the spread of COVID-19 in jails and prisons is not specific to Canada. Concerns have been expressed across the world. See: Pei Li and Se Young Lee, “Hundreds inside Chinese prisons infected with COVID-19 as coronavirus cases swell outside epicenter”, February 21, 2020, online: The National Post: https://nationalpost.com/news/world/hundreds-inside-chinese-prisons-infected-with covid-19-as-coronavirus-cases-swell-outisde-epicentre; “Coronavirus: Death toll jumps again in Italy’s ‘darkest hour’”, March 9, 2020, online: BBC News: https://www.bbc.com/news/world-europe 51805727

[43] In addition to general concerns that any member of the incarcerated population has regarding contracting COVID-19, the Applicant also has a number of underlying medical conditions. These include the following:

a. The Applicant suffers from bowel issues. He stated that he had a colonoscopy in the fall of 2019 but is unaware of the results.

b. At the time of the original application, the Applicant was in the beginning stages of an unknown skin condition. In the past 14 months, the Applicant’s skin condition has worsened significantly, going from a small rash to now involving most of his body. These skin lesions are deep, dry and over time result in open wounds. A punch biopsy of these lesions was conducted on October 24, 2019 and he has been diagnosed as having spongiotic dermatitis. He stated that his skin is constantly inflamed and he wakes up itching.

c. He gets frequent nose bleeds from the poor air quality in the facility.

d. He suffers from seasonal allergies.

e. The Applicant agreed that he was not experiencing any fever or difficulty breathing.

It is unclear whether these conditions would put the Applicant at a heightened risk of contracting the virus or in a more vulnerable position to the virus.

[44] There have been a number of cases that have addressed the issue of bail in the wake of the COVID-19 pandemic.

[45] In R. v. J.S., 2020 ONSC 1710 (March 20, 2020) (Copeland J.), the Applicant brought a bail review on the grounds that the Justice of the Peace had erred, and that there was a material change in circumstances as a result of new proposed sureties and the emergence of the COVID-19 pandemic. Justice Copeland accepted both of these factors to be a material change and, therefore, did not deal with any alleged error at first instance. In deciding to release the Applicant, Justice Copeland stated:

[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.

[19] 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.

[20] This factor must, of course, be balanced with the other tertiary ground factors. In my view, in the circumstances of Mr. S., including the new proposed release plan, he has discharged his onus to show that his release on strict terms would not undermine public confidence in the administration of justice.

In light of the COVID-19 risks, along with the accused’s newly proposed sureties, vacating the detention order and ordering release in the form of restrictive house arrest was determined to be appropriate in that instance.

[46] In R. v. Nelson, 2020 ONSC 1728 (March 23, 2020) (Edwards J.), the court held that although COVID-19 represented a material change in circumstances, the application was dismissed due to the seriousness of the charges, the accused’s prior criminal record, the weaknesses of the plan of release, and the absence of evidence demonstrating that Mr. Nelson may be more susceptible to contracting the virus or was at heightened risk of symptomology. The Applicant in that cases had outstanding charges that related to a robbery at a local jewellery store, as well as charges related to trafficking of a loaded firearm.

[47] In R. v. Sappleton, 2020 ONSC 1871 (March 26, 2020), Bird J. released a 34-year-old male charged with possessing a loaded restricted or prohibited firearm, possession of that firearm in contravention of an order prohibiting him from possessing firearms, and two counts of failing to comply with a recognizance. Mr. Sappleton brought this subsequent bail review pursuant to sections 520 and 525 of the Code, alleging three new changes in circumstances: 1) the addition of electronic monitoring, 2) the fact that he had provided notice of significant Charter violations in relation to the seizure of the firearm, and 3) the COVID-19 pandemic. In relation to COVID-19, Justice Bird stated as follows:

[21] …The impact of the Covid-19 pandemic is something that warrants consideration under the tertiary ground. Detention in circumstances involving significant delays or an increased risk to an accused person’s health may not be necessary in order to maintain public confidence in the administration of justice.

[22] In this case, I am not satisfied that the Covid-19 pandemic is a material change of circumstances that ought to lead to Mr. Sappleton’s release. In coming to this conclusion, I do not in any way wish to minimize the seriousness of the virus or its potential impact on a large segment of the population. However, there is no evidence that at the current time Mr. Sappelton’s health is at risk. There is no evidence that there are cases of Covid-19 in his detention centre. Nor is there evidence of any failure on the part of correctional staff to appropriately manage the health concerns created by the virus.

Justice Bird found a material change in relation to the Charter arguments brought forward and the addition of electronic monitoring, and determined that an appropriate release could be fashioned to address the secondary ground concerns.

[48] In R. v. C.J., 2020 ONSC 1933 (March 27, 2020), Conlan J. released a 33-year old male, previously detained on a number of drug and firearm related offences from Maplehurst Correctional Complex. He stated:

[9] As to any suggestion that this Court may need “evidence” that C.J. is, while at the jail, more at risk of contracting COVID-19 than if he was not in jail, I reject that submission. I accept what I already have as evidence from C.J. – Maplehurst Detention Centre has curtailed or eliminated altogether the few niceties that prisoners had available to them previously, such as family visits and religious services. Viewed strictly in the context of the virus, that is welcome news. But I also do not live in a bubble; 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.

Justice Conlan found that the combination of electronic monitoring, not having been previously offered, and the COVID-19 health crisis, together, amounted to a material change in circumstances. The Applicant was released on conditions, including electronic monitoring.

[49] In R. v. Budlakoti, [2020] O.J. No. 1352 (March 27, 2020) (Justice Laliberté), the court found that, while COVID-19 warranted a review of the detention order on the basis of a material change in circumstances, the applicant had not shown that his continued detention was not necessary on the secondary and tertiary grounds. The Court took judicial notice of the risks associated with the COVID-19 crisis, and also was mindful of the increased risks for inmates confined in detention centres. The court also accepted that it was likely challenging for counsel to get medical evidence in support of such applications. However, the court found that the increased risk to the accused in the wake of COVID-19 was merely “possibilities”. The court stated, “The need for more cogent evidence is reinforced by the significant risks for public safety associated to the accused being released in the community even with the bail plan, which was already rejected by Justice Doody.” The court also considered the steps being taken by the correctional system to manage the risk of COVID-19.

[50] In R. v. T.L., 2020 ONSC 1885 (March 30, 2020), Justice Molloy granted release to a 28-year-old male with a criminal record. He was facing a series of firearms offences relating to a shooting that took place at a plaza in Toronto. He was alleged to have passed the firearm to another person immediately before a shooting took place, and then used his car to pick up the shooter and flee the scene. He was charged with transferring a handgun, discharging a firearm with intent to wound, various counts of possession of the firearm, and accessory after the fact by assisting the shooter to escape. He was originally detained on both the secondary and tertiary grounds. Justice Molloy concluded that the plan proposed, including 24-hour supervision, electronic monitoring and house arrest, was adequately strict in the wake of the COVID-19 pandemic. At para. 36, she wrote:

[36] Detention prior to trial is difficult at the best of times, which is one of the reasons that, on sentencing, extra credit is provided for pre-trial custody. In the middle of a pandemic, serving that time in an institution is even more difficult. Transmission of the virus would be so much easier within an institution than in a private home. Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment. Not only that, the more people that are housed in the institutions, the harder it will become to achieve any distancing to prevent infection or to contain or treat any infections that do occur. It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).

It is of note that the plan of release, including the sureties proposed, was significantly different on the bail review when compared to the bail at first instance. Justice Molloy had great confidence in the plan being proposed.

[51] In R. v. T.K., 2020 ONSC 1935 (March 30, 2020) (Goodman J.), the Applicant, with an extensive criminal record, was charged with possession of a Schedule 1 substance (methamphetamine) for the purpose of trafficking, possession of proceeds of crime under $5,000, and failing to comply with probation x 4. He was originally detained on the secondary grounds. He brought a bail review application on the grounds of a material change in circumstances, as a result of an updated surety plan and COVID-19. There had also been a recent withdrawal of a charge. The Court stated:

[72] When I consider the current state of affairs in the detention centres and with due consideration to the COVID-19 pandemic, I am persuaded by Ms. McCourt that the applicant will abide by the release conditions imposed instead of remaining in detention awaiting trial months, if certainly not longer.

[73] In adding the COVID-19 pandemic into the proposed release plan’s “mix” and as expressed in J.S., in this case, I am persuaded that the release plan proffered will address the Crown’s primary, secondary and tertiary concerns. At the same time, this decision is not intended to send out a message that due to the pandemic there exists a revolving door policy for offenders to commit crime with the expectation of release or that offenders can now benefit with a “get out of jail free” card. Indeed, if this were the case generally, it would erode the public confidence in the criminal justice system, especially as it pertains to violent offenders or crimes of violence.

[74] In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.

The court ordered release with strict conditions.

[52] In R. v. Jeyakanthan, 2020 ONSC 1984 (March 31, 2020) (McWatt J.), the Applicant alleged two material changes in circumstances: 1) different plan of release, including house arrest and a “hard curfew”; and 2) COVID-19 concerns. Justice McWatt did not agree with the comments in J.S., finding that the conclusions were “based on speculation and not on evidence”. Justice McWatt then reviewed a “Briefing Note- Institutional Response to COVID-19” filed by the Crown setting out various steps being taken in Ontario’s correctional facilities. The court found that some medical evidence should be submitted by an applicant if they claim increased susceptibility to the virus. The court stated:

[37] I am not able to conclude, at this time, and in this case, that COVID-19 is a relevantly material change of circumstances that would allow me to interfere with the Justice of the Peace’s decision to detain Mr. Jeyakanthan…

Detention was continued in this case.

[53] In R. v. Cain, 2020 ONSC 2018 (April 1, 2020) (London-Weinstein J.), the court held that COVID-19 was a material change in circumstances triggering a de novo hearing and was also one of the relevant factors to be considered on the tertiary ground. The Applicant was facing very serious charges arising from a violent attack on two complainants. It is of note that the Applicant had been initially released at the Ontario Court of Justice, however he was alleged to have breached the terms of that release, at which point he was detained. On the review of that detention, the Applicant was released on house arrest with strict conditions. The court stated:

[11] I do not find that Mr. Cain must satisfy me that he has some subjective personal characteristic in order to accept that he is at increased risk of infection by virtue of his incarceration at OCDC…

[12] That being said, Mr. Cain has testified that his prior liver injury puts him at a higher risk of infections generally. I have no evidence to contradict his assertion on this point and I accept it.

[13] In my view, the arrival of the Covid 19 virus is a material change in circumstances triggering a de novo hearing and is also one of the relevant factors to be considered on the tertiary ground.

The court found that the Crown’s case, while strong, was far from overwhelming as the credibility of the complainant’s observations would be at issue. The court found that the new surety plan proposed, including the addition of a home security camera and electronic monitoring, satisfied any concerns that the court may have on release.

[54] In R. v. Brown, unreported, April 6, 2020, Justice Crawford referred to Justice McWatt’s decision in Jeyakanthan, in which she described the response of correctional institutions to COVID-19. Justice Crawford also stated that there was no evidence before the court of any cases of COVID-19 in Central East Correctional Centre or of any current risk to the inmates of the institution. Detention was ordered.

[55] In R. v. Phuntsok, 2020 ONSC 2158 (April 8, 2020) (Barnes J.), the Applicant was facing ten charges, including two counts of discharging a firearm. The application was based on a material change in circumstances, including the introduction of a new surety, a psychological report describing intellectual deficits, and the COVID-19 pandemic. The court found that the psychological report and the COVID-19 pandemic constituted a material change in circumstances, however, held that this does not result in automatic release from custody. The court found that the Applicant suffered from asthma which put him at great risk medically, with a reduced chance of survival if he contracted the virus. Despite this, the Applicant was detained.

[56] In determining what constitutes new evidence in the context of a material change in circumstances, the Supreme Court of Canada in R v. St-Cloud 2015 SCC 27, at para 129, held that the court should apply the factors established in R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 (S.C.C.), at p. 775. The court cautioned, however, that these rules must be applied flexibly, given the fact that bail hearings often take place at a time when the case is still in its infancy.

[57] Having considered the totality of the circumstances, including other cases that have considered the concern of COVID-19 in the context of bail, it is the conclusion of this court that Mr. Paramsothy has met his onus in demonstrating a material change in circumstances as a result of this pandemic. This is so for the following reasons:

1. The Applicant’s last bail hearing culminated in a detention order on January 10, 2019. At this time, most of the world had never heard of COVID-19 or the coronavirus. This concern did not exist at the time of the first bail hearing and could, therefore, not have been raised.

2. On March 11, 2020, the World Health Organization officially categorized the COVID-19 virus a global pandemic.

3. COVID-19 is highly contagious. The virus is transmitted through small particles which spread while coughing, sneezing, or even talking to someone in close proximity.

4. The virus can be spread by touching contaminated surfaces. Public health officials have advised that the virus can last on certain surfaces for several days.

5. Public health officials have stated that the best way to avoid transmission is to thoroughly wash your hands, avoid touching your face, consistent cleaning of surfaces and social distancing of at least two metres.

6. Since declaring the COVID-19 virus a pandemic, the world has changed in an unprecedented way. It has changed the way most people live on a daily basis.

7. While many of the changes felt by most people are not, at least immediately, felt by a person who is incarcerated, those persons have experienced change as well. It has changed the way correctional authorities run the institutions, leading to increased measures to reduce the risk of the virus being spread, such as:

a. Personal visitation has been suspended until further notice. Professional visits are still permitted.

b. All court appearances for those incarcerated are conducted by video or telephone in order to reduce the movement of inmates in and out of the institutions (unless specifically requested by the Court).

c. There has been a hiatus placed on non-essential transfers of inmates between institutions in order to reduce the risk of transmission between institutions and communities.

d. Additional cleaning is being considered and implemented where possible.

e. Proper handwashing and cough/sneezing protocol has been communicated to the inmates.

f. If an outbreak of any communicable disease occurs or is suspected, immediate precautionary containment measures will be taken, including medical isolation.

See Information Note - Institutional Response to COVID-19, April 6, 2020

8. There is no question that the Applicant’s experience in custody has significantly and materially changed since his last bail review according to the evidence he has provided.

9. These changes experienced by the Applicant are “relevantly material” and affect the considerations that underpinned the original bail judge’s decision. The information concerning COVID-19 and its impact upon incarcerated individuals is relevant and bears upon a decisive issue. Specifically, the tertiary ground requires the court to consider whether detention is necessary to maintain public confidence in the administration of justice. Certainly, this consideration of public confidence in the administration of justice must take into consideration a global pandemic which does have an impact on the Applicant’s experience in custody.

10. While there are certainly many unknowns in relation to the COVID-19 pandemic, there is no question that there is credible evidence to suggest that there has been an impact on much of the world, including persons who are incarcerated.

11. The COVID-19 pandemic and its effect on incarcerated persons is something that must be taken into account when determining whether detention is necessary. The profound effect that the COVID-19 pandemic has had upon most of the world must be considered in relation to the primary, secondary and tertiary grounds, as it could affect all of those factors.

12. There is no question that COVID-19 has affected the rate at which persons are being incarcerated and released. The reality of the COVID-19 pandemic could reasonably be expected to affect whether someone is or is not ordered detained.

[58] Very recently, in R v. Kazman, 2020 ONCA 251, the Court of Appeal was deciding the issue of bail pending Mr. Kazman’s application for leave to appeal to the Supreme Court of Canada. The Court found that while Mr. Kazman’s leave application was not frivolous, it was weak. The Court made it clear that the case turned on the assessment of the public interest under s. 679(3)(c). In ordering Mr. Kazman’s release, the court made the following relevant comments:

[16] That said, the particular circumstances of this case justify release. The applicant’s crimes were serious but not violent. These offences were the first offences with which he has been convicted. There are no lingering public safety or flight risk concerns that weigh in favour of immediate enforceability.

[17] Further, the applicant’s health conditions, which were well documented in the record before the court, as well as his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19. It is necessary for him to practice social distancing to lower the risk of contracting COVID-19. Being in jail will make it difficult, if not impossible, to practice such social distancing.

[18] As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[19] For these reasons, and in light of all of these factors together, the applicant’s release for a limited period would not undermine a reasonable and informed person’s confidence in the administration of justice.

[20] I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue. In R. v. Morgan (31 March 2020), Toronto, M51470 (C67536) (Ont. C.A.), bail pending appeal was denied due to the applicant’s risk of reoffending and the inadequacy of his sureties to supervise against further offending.

[21] However, the particular circumstances of this case justify release. Given the applicant’s health issues amidst the COVID-19 situation, and the limited bail period sought, I am persuaded that the applicant’s detention is not necessary is in the public interest.

It would appear that the Court of Appeal has determined the COVID-19 pandemic to be a relevant consideration when it comes to the public interest factor. If this is the case, the COVID-19 pandemic must be a relevant consideration, minimally, in relation to the tertiary grounds, when considering whether detention is necessary to maintain confidence in the administration of justice. As previously stated, this court would suggest this evidence may be relevant to all three grounds. This is not to say that the COVID-19 pandemic will or should result in the release of everyone and anyone raising this as an issue. The determination of bail has never been based on one factor, nor should it be at this time. However, to suggest it is not a relevant consideration to bail ignores the reality of the world in which we are currently living.

[59] It is also worth noting that, as this application progressed, the Crown conceded that the reality of the COVID-19 pandemic does amount to a material change in circumstances.

[60] For all of the foregoing reasons, the Applicant has demonstrated that the COVID-19 pandemic has created a material change in circumstances. Given that a material change in circumstances is present, this court has jurisdiction to review Mr. Paramsothy’s detention and determine whether he has established that his detention in custody is not justified. As was made clear in St-Cloud, at para. 138, “If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr.C. as if he or she were the initial decision maker.”

Allegations

[61] In order to properly consider whether detention is necessary and whether Mr. Paramsothy has met his onus, this court must take a closer look at the allegations in this case.

[62] The allegations in relation to the offences were succinctly set out by Justice Fuerst in her reasons at the time of the first bail hearing and were as follows:

On the evening of May 16, 2018, Matthew Arcara was shot in the head and killed while seated in his vehicle parked on a quiet residential street in Richmond Hill. Hours later, two men entered the Toronto condominium unit where Mr. Arcara lived. Two other males who were present in the unit were confined at gunpoint and bound while Mr. Arcara’s bedroom was ransacked. One of the men was able to call 911. Police arrived in the unit. Arjuna Paramsothy was arrested in a stairwell, attempting to flee from the building. Two Glock handguns were found near him. Mr. Paramsothy was in possession of the keys to Mr. Arcara’s unit, Mr. Arcara’s driver’s licence, and a cell phone registered to Mr. Arcara…. Brandon Hudson was arrested on May 21, 2018 and charged separately with similar offences. The Crown alleges that Mr. Paramsothy and Mr. Hudson planned and executed the murder of Mr. Arcara in order to rob him, and that they perpetrated the subsequent home invasion robbery at Mr. Arcara’s residence.

The Applicant takes no issue with this summary of the allegations.

[63] In addition to this summary, there is also evidence to suggest that Roopa Paramsothy, the Applicant’s mother and proposed surety, did not know where her son was on the evening of May 16, 2018. She acknowledged that he took her gun without her permission. She gave the police a statement on May 17, 2018 and identified Mr. Hudson in a photograph. She told the police that Mr. Hudson had dinner at their home earlier that week. Rasiah Paramsothy, the Applicant’s father and proposed surety, also gave the police a statement on May 17, 2018. He said that he knew Mr. Hudson, who had been to their home on occasion, including earlier that week.

[64] Arathi Paramsothy, the Applicant’s sister, also gave a statement to the police. She told them that Mr. Hudson called her and then came to the house very early on the morning of May 17, 2018. He asked her to let him into the garage, where he retrieved a backpack. She testified that Mr. Hudson had been at the house and had dinner with the family two days earlier.

[65] Following his arrest, on May 17, 2018, after speaking privately with counsel of choice, Mr Paramsothy gave a videotaped statement in which he made numerous admissions, including:

1. He had known Brandon Hudson for a year or a year and a half. He stated, “It’s like that kind of friendship. It starts off nice but then you see the money going and the stress building, you see these weird requests and then one day you just realize you’re ingratiated.”

2. About a week prior to May 16, 2018, Mr. Hudson told Mr. Paramsothy that he was going to “stain” or “waste” the victim, which was street lingo for “I’m going to shoot this guy”. Mr. Paramsothy understood Mr. Hudson wanted to do this for the money.

3. When asked why he could not just rob him, Mr. Paramsothy stated, “Because he’s connected. You don’t rob someone who is connected to an organization that deals in extortion and narcotics and gambling”.

4. In addition to shooting the victim, there was also a plan to go to his residence after and rob him.

5. Mr. Hudson asked Mr. Paramsothy for the guns a few days before, “maybe the Friday of last week”.

6. A couple of days prior to May 16, 2018, Mr. Paramsothy and Mr. Hudson were at the shooting range together, Target Sports, at Stouffville Road and Highway 404. Mr. Hudson did not have proof of address so he could not shoot. They went there so that Mr. Hudson could try out his guns and Mr. Paramsothy was going to renew his membership.

7. A couple of days before May 16, 2018, Mr. Hudson came to Mr. Paramsothy’s house for dinner.

8. He was with Brandon Hudson on May 16, 2018.

9. Mr. Paramsothy stated, “I was coerced into this, which is why it’s my firearms…which is why I’m not entirely innocent.”

10. Mr. Paramsothy picked up Mr. Hudson at his house that day at about 7:30 or 8:00 p.m. It was still light out.

11. Mr. Paramsothy picked him up using his CRV.

12. Mr. Paramsothy left his phone at Mr. Hudson’s house. He stated, “probably not a good idea travelling around with your cell phone when you’re doing stuff like this”.

13. They drove around for a bit, including driving to the neighbourhood in Richmond Hill where the victim was later located. He estimated that this would have been 8:30 p.m.

14. They then drove to a park on Yonge Street in Richmond Hill, south of Stouffville Road.

15. Mr. Hudson arranged the meeting with the victim by phone. Mr. Paramsothy stated, “I kind of delegate that. That’s not my relationship, like I’ve been saying from the beginning, I don’t know the victim.”

16. He did not know if the conversation between Mr. Hudson and the victim was while they were at the park or when they were on their way back to the residential neighbourhood in Richmond Hill.

17. He believed that the conversation between Mr. Hudson and the victim suggested it was a business relationship and it was a discussion about where and when to meet. Mr. Hudson also mentioned that he was going to loan the victim a gun.

18. They had guns with them because Mr. Hudson “said he was going to rob the money”. Mr. Hudson told Mr. Paramsothy this about a week prior. Mr. Hudson asked Mr Paramsothy to bring “the strap”.

19. Mr. Paramsothy and Mr. Hudson drove back to the residential neighbourhood in Richmond Hill. They did not drive onto the street where the victim was parked this second time.

20. He stated that the purpose of going there was to get money. When asked what the money was for, he stated, “Why do we want money? There’s a lot of different reasons why you want money…maybe it’s just the easiest mark… or the highest mark.”

21. He stated that Brandon Hudson was buying drugs from the victim previously. The victim sold cocaine primarily. Mr. Paramsothy stated that he would drive Mr. Hudson around to do his deals, buying and selling, and Mr. Hudson would give him gas money.

22. As they returned to the residential neighbourhood a second time, they parked a couple of streets down form the cul-de-sac.

23. As they left the car and were walking, Mr. Paramsothy gave Mr. Hudson a gun. Mr. Hudson had a bag he put it in. Mr. Paramsothy had the black gun in his back pocket. He said “I never pulled it out….I was just eyes”.

24. They walked through the park.

25. Mr. Paramsothy saw the dark-coloured Jeep which was running.

26. Mr. Hudson told him to wait three or four minutes as he did not want two guys to show up at the same time. Mr. Paramsothy thought that he had only met the victim once in passing.

27. Brandon Hudson walked to the victim’s vehicle.

28. Brandon Hudson was at the victim’s vehicle before Mr. Paramsothy. When asked why Mr. Hudson would be there a few minutes before he was, he said “I don’t shoot people….I specifically, don’t shoot people.” When asked again why the other guy would be there before him he said, “To do things that I don’t do?...Perhaps.”

29. Mr. Paramsothy heard a gunshot. He did not know how many gunshots he heard.

30. He did not shoot the victim and was not in the victim’s car at the time. Mr. Paramsothy estimated that he was on the other side of the crescent, about twenty metres away when the victim was shot.

31. He stated that Brandon Hudson shot the victim.

32. Mr. Paramsothy approached the Jeep two minutes after Mr. Hudson went up to the vehicle. When Mr. Paramsothy approached the Jeep, the victim was already shot.

33. As he approached the Jeep, Mr. Paramsothy stated that he did not hear anything. He then saw the door open and Mr. Hudson stepped out, looked around and got back in. Mr. Paramsothy then went up to the vehicle and the victim was bleeding. There was blood all over his chest and flowing under his cap.

34. Mr. Hudson was collecting things from inside the car. Mr. Paramsothy stated, “I think he got some money…It’s all kind of a blur.”

35. Mr. Paramsothy stated that he opened the driver’s side door and the guy was bleeding. He put the vehicle from neutral or drive into park, took the keys from the ignition and grabbed his wallet. There was cash and cards in the wallet. As for money, he said “it’s stacked. I’d say, I don’t know, maybe a cool grand”.

36. Mr. Paramsothy also admitted to taking the victim’s cell phone from his front pocket. It was in the same pocket as his wallet.

37. Mr. Paramsothy stated that he knew the victim’s name was Matthew but did not know the victim’s full name until he took his licence.

38. It took them about 5-6 minutes to get back to the CRV at a brisk pace.

39. Mr. Paramsothy believed that items were tossed out of the window in a blue gym bag, which was inside a garbage bag, when he was driving, including the empty wallet and some of their clothing.

40. They drove to Mr. Paramsothy’s house.

41. Besides the bag that was thrown out the window, they brought another bag of items to the house which was left in the garage.

42. At the house, Mr. Paramsothy’s mother, father and sister were home asleep. No one knew he came in.

43. At the house, Mr. Paramsothy had a beer. He cleaned blood off some of the money.

44. Mr. Hudson also had a knife that had blood on it. Mr. Hudson cleaned it off in the laundry room sink and put it back on his person.

45. They did not divvy up the money. Mr. Hudson kept all of it. Mr. Paramsothy estimated that there was two or three thousand dollars.

46. They were at the house for 45 minutes.

47. They got into his mother’s Audi and went to downtown Toronto.

48. They went straight to Harbour Street and parked at the lot next door.

49. The plan was to go and grab weed and money. He said that they assumed the place would be empty. Mr. Hudson had stated that there would probably be a lockbox, so for Mr. Paramsothy to bring a big bag. He brought a big bag from home.

50. They entered the apartment building and apartment with a fob and with keys. It was the same keys he took from the ignition of the Jeep.

51. They stopped at the mail room to “look normal”. They tried the keys and grabbed the mail. Mr. Paramsothy stated to security “Oh yeah, I’m just visiting my buddy and I’m looking for the name.”

52. When they first got to the apartment, they did not think anyone was there.

53. There was a dog in the apartment. When they opened the cage for the dog because it was barking, the dog got scared and bit Mr. Paramsothy. He pushed the dog back and then Mr. Hudson lunged in with a knife from the kitchen and stabbed the dog. That knife was left at the scene.

54. After he was bit by the dog, Mr. Paramsothy put gloves on because he was bleeding everywhere. The gloves had been in the black-handled bag that Mr. Hudson had carried into the condo.

55. The two bedroom doors were closed. Mr. Paramsothy pointed at the first door. Mr. Hudson cocked the gun and then Mr. Paramsothy opened the door.

56. One guy was on the bed. Mr. Paramsothy said “Hey man, it’s nothing personal. We’re here for someone else, we’re here for your roommate and his stuff, we’re not robbing you, we don’t want to hurt you. I just need you to be calm and comply”. He said the same thing to the guy in the other room.

57. Mr. Paramsothy and Mr. Hudson brought the two occupants out to the couch and Mr. Hudson bound them with duct tape and zip ties. Those items came from the black bag that was over Mr. Hudson’s shoulder, but which was originally Mr. Paramsothy’s bag.

58. He stated that he held the black firearm in their general direction with no bullet in the chamber.

59. The intention in the apartment was to get cash.

60. Mr. Paramsothy stated that he was not looking for anything in the apartment, but was just watching the occupants. He was the “lookout”.

61. Mr. Paramsothy stated that he took an empty bag into the apartment and “hauled” a bag out. He did not know what was in it, as he did not fill the bag.

62. Mr. Paramsothy stated that he could not tell what Mr. Hudson was grabbing. He filled the suitcase, grabbing stuff from the closet.

63. Mr. Paramsothy was just leaving the apartment, at the front door of the unit, when the police arrived.

64. He was in a rush to get out of the apartment because of the police. Mr. Hudson and Mr. Paramsothy went down the stairs. Mr. Hudson threw a bag at him and ran. He stopped to pick it up, turned around and police took him down.

a. Brandon Hudson was wearing a wig when they were downtown that night as “he wanted to fool these cameras”.

b. Mr. Paramsothy was arrested with a cell phone which belonged to the victim, which was taken from the condo.

c. Mr. Paramsothy suggested that he was afraid to tell the police what happened. He was afraid for his own safety and the safety of his family. He specifically stated that he was afraid of Mr. Hudson, and associates of the victim.

[66] The Applicant submitted that there will be a section 10(b) Charter argument raised in relation to statements and utterances made by him following his arrest. In essence, the argument will be that initial utterances made by Mr. Paramsothy at the time of his arrest were improperly obtained and that, where an initial statement is tainted by a breach of s. 10(b) of the Charter, a court must consider whether the subsequent statements, including the video taped statement, were "obtained in a manner" that violated the Charter. The Applicant conceded that this was not a strong argument, but that it will be advanced at trial. Having said this, the Applicant conceded that even without the statement, there was still an overwhelming Crown case on many of the charges, with the exception of first degree murder. Having reviewed the entirety of the transcript of the statement of Mr. Paramsothy, it is of note that he had spoken to a lawyer of his choosing and claimed to be fully aware of his rights. Mr. Paramsothy declined to answer questions numerous times. It was sometime into the statement, and after many refusals to provide answers, before Mr. Paramsothy made any statements which could be said to be inculpatory.

[67] In addition to Mr. Paramsothy’s statement, the police obtained statements from various witnesses and gathered video surveillance, cell phone records, and physical evidence. The evidence tends to show the following:

a. Mr. Paramsothy and his family are the legal owners of numerous firearms and ammunition.

b. On May 14, 2018, Mr. Paramsothy and Mr. Hudson went to a shooting range, which was captured on video surveillance. Mr. Hudson did not have identification and was not permitted to shoot. Mr. Paramsothy did some target shooting.

c. On May 15, 2018, Mr. Paramsothy bought two oil filters, which was captured by video surveillance.

d. About four hours before the meeting with the victim, Mr. Paramsothy drove in his Honda CRV to “scout” the Richmond Hill Street where the meeting was to occur. This was captured on video surveillance from a residence in the cul-de-sac.

e. Upon their return to the residential neighbourhood, at the time the victim was shot, some of the activity was captured on video surveillance from a nearby residence.

f. Later, Mr. Paramsothy drove his mother’s Audi to the victim’s condo on Harbour Street in Toronto. Video surveillance shows them entering at 2:12 a.m. Mr. Hudson was wearing a wig and carrying a shoulder bag. Mr. Paramsothy had a suitcase, which he brought from home. Mr. Paramsothy went to the mailboxes and removed a letter from the victim’s box, to make their entry look normal.

g. They went to the victim’s unit where they used his key to enter. Two males and a dog were inside the unit. Mr. Paramsothy and Mr. Hudson each pointed a firearm at the men, and one of them killed the dog. The men’s wrists were bound, and they were confined to the living room while Mr. Arcara’s bedroom was ransacked.

h. One of the males called 911. As the police arrived, Mr. Paramsothy and Mr. Hudson fled down a stairwell. Mr. Hudson escaped, although he was captured on the building’s video surveillance. Mr. Paramsothy was apprehended. A black Glock handgun was located near his feet. A bag found near him contained a tan Glock handgun. Mr. Paramsothy was in possession of the keys to Mr. Arcara’s residence, Mr. Arcara’s cell phone, and Mr. Arcara’s driver’s licence, as well as the Audi key fob.

i. The black handgun was registered to Mr. Paramsothy’s mother. It was loaded with 10 rounds of ammunition. The tan handgun was registered to Mr. Paramsothy. It contained eight rounds of ammunition. It was scratched on the barrel, which the Crown alleges was because of the use of an air filter as a silencer. The Crown alleges that this handgun was the murder weapon.

j. The police found the Audi. Inside it they located the identification of Mr. Paramsothy, and Mr. Hudson’s wallet containing his identification.

k. The police executed a search warrant at the Paramsothy home. They found a garbage bag in the garage, which contained a duffle bag. Inside the duffle bag was packaging for a Fram oil filter, the bill of sale for the victim’s Jeep, a letter bearing the victim’s name, and a sweater containing gunshot residue particles that was stained with the victim’s blood. The garbage bag also contained a white plastic bag, inside which was the key to the victim’s Jeep, an oil filter with an exit hole that had gunshot particles on it, believed to be used as a silencer when the victim was shot.

l. The police found blood-stained jeans in Mr. Paramsothy’s bedroom. There was a fired shell casing in one of the pockets of the jeans. The Crown alleges that Mr. Paramsothy retrieved the shell casing from inside the victim’s jeep.

m. Additionally, the police found in Mr. Paramsothy’s bedroom, two wallets. One contained photo identification, credit cards and documents in the name of Medini Ghumman. The second contained photo identification, credit cards and documents in the name of Murad Khangura. On March 31, 2018, Mr. Ghumman and Mr. Khangura told the police that they were robbed at gunpoint by a black male.

n. Mr. Hudson was arrested on May 21, 2018. He told the police that he was not with Mr. Paramsothy after 10:00 p.m. on May 16, and that he found out about the murder on the news.

Personal Circumstances of the Applicant

[68] Mr. Paramsothy is 33 years old. He was born in England, but immigrated to Canada with his mother in 1987. He has lived in Canada since that time. He is a Canadian citizen. He has no criminal record.

[69] At the time of his arrest, he was living with his parents and younger sister at 788 Kingsmere Avenue in Newmarket.

[70] Mr. Paramsothy completed a business program at Humber College. He attended Ryerson University for one year, then Dalhousie University for two years, where he studied mechanical engineering. He returned to Ontario without finishing his degree, and ran his own business for a year. He then worked as a driver for a courier company, and subsequently was a driver for a limousine company. He was unemployed at the time of his arrest.

[71] Mr. Paramsothy has been held at the Central East Correctional Centre since May 17, 2018.

Proposed sureties

[72] The Applicant’s parents, Rasiah Paramsothy and Roopa Paramsothy, proposed sureties, live in Mount Albert, Ontario with their daughter, Arathi, in a 5-bedroom bungalow. They moved to this home in August 2019. The house is a distance from the nearest neighbour. The couple’s third and youngest child is studying abroad in the United Kingdom.

[73] The Applicant’s father, Rasiah, was born in Sri Lanka in 1948. He has been a Canadian citizen since 1989. He works as a psychiatrist in a private practice in Newmarket. He also is a staff psychiatrist at a local hospital. He works Monday to Thursday, usually from 1:00 p.m. to 5:00 p.m., in addition to being on call four times per month.

[74] The Applicant’s mother, Roopa, was born in Sri Lanka in 1955. She has been a Canadian citizen since 1989. She is retired from a career as a financial planner, however, she assists with managing and bookkeeping at her husband’s practice. She does this work from home. She also works from home as an online life coach.

[75] Neither proposed surety has any criminal record or outstanding charges.

[76] Arathi, the Applicant’s younger sister, is still living with her parents. She graduated from an engineering program at Seneca and then worked at some contract jobs. She is now tutoring on line part time.

[77] The Applicant’s parents both provided statements to police, as did Arathi Paramsothy. While Arathi did testify at the preliminary hearing, the Applicant’s parents did not. The Applicant’s parents were not subpoenaed to testify at the trial, which was scheduled to commence in May. However, the Crown indicated that it is still a possibility that they would have to testify at the trial, although it is hoped to be avoided.

[78] The Applicant’s parents are willing to implement and enforce the proposed plan, and any more restrictive plan that this court may order, including 24-hour supervision of the Applicant if necessary. They have made inquiries in relation to electronic monitoring and are open to Jemtec, or any other company that the court approves doing such monitoring. They are aware of the costs involved.

[79] They described their son’s relationship with them as very close and positive. Since his arrest, they have visited him in jail and spoken with him by phone.

[80] The sureties are able to pledge approximately $500,000 and are willing to risk everything for this bail review.

Principles of Bail

[81] The wording of section 522(2) of the Criminal Code is important to keep in mind:

Where an accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

In this reverse onus situation, the onus is on the accused.

[82] Section 515(10) of the Criminal Code provides the grounds upon which detention of an accused person is justified. It reads as follows:

s. 515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

1. the apparent strength of the prosecution’s case

2. the gravity of the offence

3. the circumstances surrounding the commission of the offence, including whether a firearm was used, and

4. 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.

[83] The animating principle in the criminal justice process is always the presumption of innocence. It is not for the bail judge to decide the guilt or innocence of the accused. This is not a trial. An accused person should not be denied bail without just cause. Moreover, section 11(e) of the Charter guarantees both the right to obtain bail and the right to have that bail set on reasonable terms. See R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, paras. 28-31

[84] Therefore, despite the case that the Crown suggests that it has, Arjuna Paramsothy is presumed innocent of all charges that he faces at this moment. Also, despite the fact that he has the onus to show cause why his detention in custody is not justified within the meaning of subsection 515(10), Arjuna Paramsothy is presumed innocent of all charges that he faces at this moment.

[85] When assessing the case for bail, the Court must always be mindful of the presumption of innocence and must assess the issue of bail through the lens of that presumption and the Charter right to reasonable bail.

[86] In R. v. Antic, 2017 SCC 27, [2017] 1 SCR 509, the court reaffirmed the right not to be denied bail without just cause. In para. 40, the court stated:

[40] A provision may not deny bail without "just cause". The right not to be denied bail without just cause imposes a constitutional standard that must be met for the denial of bail to be valid. Lamer C.J. held that there is just cause to deny bail only if the denial (1) occurs in a "narrow set of circumstances" and (2) the denial of bail "is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system": Pearson, at p. 693; see also Morales, at p. 737; Hall, at para. 16.

[87] Section 515(10) of the Criminal Code requires that the Court consider the primary, secondary and tertiary grounds in assessing the issue of bail.

Primary Grounds

[88] To consider the primary ground concern, the court must look at things such as ties that the accused has to the community. Factors such as the presence of family and friends, work or education in the community, and other roots in the community are relevant considerations. The rationale, of course, is that a person with these sorts of associations with a certain community is more likely to remain and appear for trial than a person who has far less ties and is more mobile. The character of the accused should also be considered. Further, on this ground, sureties and conditions of bail can provide the court with sufficient confidence that the accused will attend court when required to do so.

[89] The real issue on the primary ground is not simply whether the accused has the ability or means to flee if he or she is so motivated, but whether in fact there is anything suggesting that flight is a realistic and pressing possibility, and whether conditions of release can adequately address any such flight concerns.

[90] The Crown is not alleging any primary ground concerns in this case. The Court agrees with this conclusion for the following reasons:

a. Mr. Paramsothy is a 33-year-old Canadian citizen.

b. While Mr. Paramsothy was born in England, he has been in Canada for a very long time, in fact, most of his life. This court is not aware of Mr. Paramsothy having any roots in other jurisdictions.

c. He obviously has family and friends in this area. Prior to his arrest, he lived with his parents and sister.

d. Mr. Paramsothy does not have any convictions for fail to attend court. In fact, Mr. Paramsothy has no record whatsoever.

e. While there is no question that Mr. Paramsothy is facing a lengthy jail sentence if convicted, there is no basis to believe that he will flee the jurisdiction to avoid the harsh realities of jail.

f. Mr. Paramsothy is alleged to have attempted to flee from police when confronted at the condominium. However, this fact alone does not lead this court to have concerns.

[91] Mr. Paramsothy has ties to this community and only to this community. This court is confident that Mr. Paramsothy will attend court when required to do so.

Secondary Grounds

[92] The Supreme Court of Canada, in the case of R. v. Morales 1992 CanLII 53 (SCC), [1992] 3 SCR 711, followed the principles that the Court had established in Pearson. One of the issues in Morales was to decide the constitutional validity of s. 515(10)(b) of the Criminal Code. The Court reiterated the principles set out in Pearson and applied the analysis in the context of s. 515(10)(b). The court determined the section to be constitutional. However, the Court held that the section could only be constitutional if the scope of the section was narrowed. Chief Justice Lamer stated as follows:

[38] In Pearson, I identified two factors which in my view are vital to a determination that there is just cause under s. 11(e). First, the denial of bail must occur only in a narrow set of circumstances. Second, the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system. In my opinion, the public safety component of s. 515(10)(b) provides just cause to deny bail within these criteria.

[39] I am satisfied that the scope of the public safety component of s. 515(10)(b) is sufficiently narrow to satisfy the first requirement under s. 11(e). Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s. 11(e).

[41] In my view, the bail system also does not function properly if individuals commit crimes while on bail. One objective of the entire system of criminal justice is to stop criminal behaviour. The bail system releases individuals who have been accused but not convicted of criminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accused will not engage in criminal activity pending trial. In Pearson, the reality that persons engaged in drug trafficking tend to continue their criminal behaviour even after an arrest was one basis for concluding that there is just cause to require persons charged with certain narcotics offences to justify bail. Similarly, if there is a substantial likelihood that the accused will engage in criminal activity pending trial, it furthers the objectives of the bail system to deny bail.

[43] While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated. In R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 364-65, La Forest J. considered the validity of the dangerous offender provisions of the Criminal Code:

However, as Holmes has reminded us, the life of the law has not been logic: it has been experience. The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring....

It seems to me that a "likelihood" of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means of proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the court to

assert an ability to predict the future. [Emphasis in original.]

[46] The public safety component of s. 515(10)(b) establishes narrow circumstances in which bail is denied. Those circumstances are necessary to promote the proper functioning of the bail system and are not undertaken for any purpose extraneous to the bail system…

[93] It is, therefore, only in these very narrow circumstances that bail can be denied under the secondary grounds. It is not sufficient to deny bail where the individual poses a “risk” of committing an offence. There must be a “substantial likelihood” that the accused will commit an offence or interfere with the administration of justice. In addition, the denial of bail can only occur where the “substantial likelihood” endangers the “protections or safety of the public”.

[94] With respect to the secondary ground concerns, this court has considered several factors, including the following:

a. The Applicant has no criminal record. Neither further charges nor institutional complaints have been lodged against the Applicant since his incarceration at the Central East Correctional Centre.

b. Should the Applicant be released, he would be supervised and confined to his home, assisted by sureties and electronic monitoring.

c. The incentive to leave the home in the wake of the COVID-19 pandemic may be reduced. However, it is of note that there was no evidence from Mr. Paramsothy regarding his concerns of leaving home while the pandemic is ongoing.

d. Mr. Paramsothy is charged with, among other things, first degree murder, one of the most serious offences in the Criminal Code. It is alleged that the murder involved a firearm that he supplied. The motive was said to be robbery. Just a few hours after the murder occurred, Mr. Paramsothy is alleged to have participated in a robbery of the victim’s residence. That robbery is alleged to have involved firearms that he supplied and confinement of the two residents at gunpoint. Located at his home during a search by police were identification and documents that link him, at least circumstantially, to another gunpoint robbery at an earlier time. Since the time of the original bail hearing, the police have analyzed Mr. Hudson’s cellphone and found messages which would purport to be setting up one of these robberies. Notwithstanding the fact that Mr. Paramsothy has no criminal record and no outstanding charges, all of this suggests an inclination to commit violent robberies in which the safety of individuals is put at risk.

e. Mr. Parmasothy is alleged to have taken steps to dispose of items linked to his crimes and tried to flee the police when they arrived at the condominium building to apprehend the suspects.

[95] A most restrictive release plan is being offered, including living with his sureties, 24-hour supervision, coupled with electronic monitoring. It is proposed that he would be in the complete control of his sureties and the electronic monitoring company.

[96] When he was originally ordered detained, it was the early stages of the case. No preliminary inquiry had been held, and disclosure was not yet complete. It was unclear what role, if any, the Applicant’s parents and sister would play in the trial, however, they were all potential Crown witnesses. While the Applicant’s sister was subpoenaed as a Crown witness for trial, originally scheduled for May 4, 2020 but since vacated, his parents were not subpoenaed, nor did they receive any notice that they were being called. The sister, Arathi Paramsothy, was called as a witness at the preliminary hearing and is wiling to change residences in order to lessen any lingering concerns the court might have regarding her and the Applicant residing together.

[97] This court must consider whether the sureties presented, Mr. Paramsothy’s parents, and the plan proposed, a very restrictive one, can satisfy any concerns this court may have on the secondary grounds. Again, it is on Mr. Paramsothy to satisfy those concerns as the onus is on him.

[98] Mr. Paramsothy was 31 years old at the time of these alleged offences. He was living with his parents and sister when it is alleged these events occurred. If these allegations are true, his parents obviously had little influence or control over his activities leading up to and on May 16. Having said that, however, given his age, it makes sense that they would not necessarily know where he was on the night in question. He was an adult, with no restrictions, and could come and go as he pleased. Dr. and Mrs. Paramsothy were not sureties at that time, they had no obligation, financial or otherwise, to know of the comings and goings of their adult son. See R. v. Iglesias, 2020 ONSC 169, [2020] O.J. No. 251 (S.C.), para 51

[99] The thing that troubles the court, however, is that all of the affidavits, including those of the Applicant and the sureties, all speak about love, mutual respect and admiration for one another. It was submitted that this is a close relationship between Mr. Paramsothy and his parents. Yet, his actions that night and early morning demonstrate little regard to those he claims to be closest to him. The actions of Mr. Paramsothy do not show any love, mutual respect or admiration for his parents; in fact, quite the opposite. There is certainly inconsistency between the relationship described in the affidavits and what has been demonstrated. This court has considered the following alleged events:

a. Mr. Paramsothy brought Brandon Hudson into their lives, someone he describes as a dangerous sociopath and someone connected to organized crime.

b. Mr. Paramsothy stated that he knew that Mr. Hudson intended to kill the victim, yet he brought Mr. Hudson to their home for dinner only a couple of nights before this occurred.

c. Mr. Paramsothy allegedly took a weapon registered to his mother without her permission or knowledge and gave it to Mr. Hudson, knowing that he intended to kill and rob the victim.

d. Mr. Paramsothy returned to his parent’s residence with Mr. Hudson after the victim had been killed. He seemed to have no problem bringing this dangerous individual back into a home where his parents and sister slept.

e. Mr. Paramsothy and Mr. Hudson brought evidence to their home, which was left behind in their garage.

f. Mr. Paramsothy and Mr. Hudson remained at the residence for 45 minutes, where they drank beer, and cleaned blood off money and a knife.

g. Mr. Paramsothy then took his mother’s car, the Audi, without her permission or knowledge.

h. Mr. Paramsothy knew that when he took the Audi they were going to the victim’s residence in Toronto to rob him. Therefore, he involved his mother’s vehicle in this alleged crime.

[100] It is the obligation of the sureties to understand the charges and the role of being a surety. This court accepts that the parents have met this obligation. However, while well meaning, it is not clear to this court that Mr. Paramsothy’s parents are able to exert any influence over him whatsoever. While this court accepts that they are committed to doing so, Mr. Paramsothy would appear to have no respect for them or their authority. This is not the blame of the parents, but rather the blame of Mr. Paramsothy. House arrest, constant supervision and electronic monitoring will not change that; especially given that he has demonstrated a willingness and ability to deceive his family. Electronic monitoring is not foolproof. The system itself can fail. The system can be tricked. Further, electronic monitoring is really an after-the-fact, reactive system, rather than a proactive one.

[101] It would seem that Mr. Paramsothy’s parents do not know their son as well as they think they do. Neither his parents, or his sister, had any knowledge of his whereabouts on the evening of May 16 or morning of May 17. Mr. Paramsothy had other identification and documentation in his bedroom, possibly linking him to another robbery. His parents had no knowledge of these documents being in their house until the search was executed, and have no explanation for their presence.

[102] Even though no longer being proposed as a surety, it is also concerning to this court that the Applicant’s sister would not provide information to the police when asked.

[103] This court certainly is left with secondary ground concerns. Those concerns cannot be alleviated, even by the very strict plan being proposed. It is the view of this court that Mr. Paramsothy poses a substantial likelihood of committing further offences and this endangers the protection and safety of the public. Detention is necessary for public safety in this case.

[104] The circumstances of the COVID-19 pandemic do not mitigate the concerns of the court on the secondary grounds in this case.

[105] While this would be sufficient to detain Mr. Paramsothy, this court will also consider the tertiary grounds given that there are also serious concerns in this regard.

Tertiary Grounds

[106] The circumstances to be considered here are whether a reasonable person, properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case, would be satisfied that the denial of bail is necessary to maintain confidence in the administration of justice. The consideration under s. 515(10)(c) does not turn on some general assessment of public opinion.

[107] In R. v. Lamothe (1990), 1990 CanLII 3479 (QC CA), 58 C.C.C. (3d) 530 (Qué. C.A.) at 541, Baudouin J.A. discussed what it meant to assess public opinion in these circumstances. The Court stated:

With respect to the perception of the public, as we know, a large part of the Canadian public often adopts a negative and even emotional attitude towards criminals or powerful criminals. The public wants to see itself protected, see criminals in prison and see them punished severely. To get rid of a criminal is to get rid of crime. It perceives the judicial system harshly and the administration of justice in general as too indulgent, too soft, too good to the criminal. This perception, almost visceral in respect of crime, is surely not the perception which a judge must have in deciding the issue of interim release. If this were the case, persons charged with certain types of offences would never be released because the perception of the public is negative with respect to the type of crime committed, while others, on the contrary, would almost automatically be released where the public's perception is neutral or more indulgent. The criminal law and its application also has, and must have, an educational value for the public. An informed public must understand that the existence of the presumption of innocence at all stages of the criminal process is not a purely theoretical notion, but a concrete reality and that, despite what may happen, in its perception, for certain inconveniences with respect to effectiveness in the repression of crime, it is the price that must be paid for life in a free and democratic society. Therefore, the perception of the public must be situated at another level, that of a public reasonably informed about our system of criminal law and capable of judging and perceiving without emotion that the application of the presumption of innocence, even with respect to interim release, has the effect that people, who may later be found guilty of even serious crimes, will be released for the period between the time of their arrest and the time of their trial. In other words, the criterion of the public perception must not be that of the lowest common denominator. An informed public understands that there exists in Canada a constitutionally guaranteed presumption of innocence (s. 11(d) of the Charter) and the right not to be denied reasonable bail without just cause (s. 11(e) of the Charter).

See also: R. v. A.B., 2006 CanLII 2765 (ON SC), [2006] O.J. No. 394 (S.C.) in which Justice Ducharme provides a summary of the factors a reasonable member of the community, in assessing the propriety of granting bail to an accused person, would understand and appreciate.

[108] The Supreme Court of Canada in R. v. St-Cloud provided further clarity in considering bail eligibility, and specifically considered whether the tertiary ground could be an independent basis for denying bail. The Court stated in part as follows:

[1] The repute of our criminal justice system rests on the deeply held belief of Canadians that the right to liberty and the presumption of innocence are fundamental values of our society that require protection. However, that repute also depends on the confidence citizens have that persons charged with serious crimes will not be able to evade justice, harm others or interfere with the administration of justice while awaiting trial. The risk that one of these events might tarnish the repute of the justice system was recognized by Parliament in enacting s. 515(10)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46 ("Cr. C."), under which the interim detention of an accused may be ordered where that is necessary to ensure the attendance of the accused in court or to guarantee the protection or safety of the public.

[2] Moreover, Parliament judged that there are circumstances in which releasing an accused person could undermine the repute of the justice system, and this led it to provide, in s. 515(10)(c) Cr. C., for a third ground for interim detention, maintaining confidence in the administration of justice. Thus, Parliament recognized that there are circumstances in which allowing a person charged with a serious crime to be released into the community pending trial in the face of overwhelming evidence might suggest to the public that justice has not been done: see R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 26.

[4] The ground for detention in s. 515(10)(c) Cr. C. requires that an effort be made to strike an "appropriate balance between the rights of the accused and the need to maintain justice in the community": Hall, at para. 41. In addition, judges must adopt the perspective of the public in determining whether detention is necessary. What the word "public" means is not always easy to understand. These difficulties no doubt explain why s. 515(10)(c) Cr. C. has generated so much discussion among legal experts and led to inconsistent results across the country.

[87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr. C. as follows:

*Section 515(10)(c) Cr. C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.

*Section 515(10)(c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

*The four circumstances listed in s. 515(10)(c) Cr. C. are not exhaustive.

*A court must not order detention automatically even where the four listed circumstances support such a result.

*The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

*The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis.

*No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

*This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

*To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is 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.

*This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.

[109] In the case at bar, it would appear that the Crown’s case is strong on some of the offences. There is real evidence such as video surveillance at the scene, video surveillance at the victim’s condominium, cell phone records, the presence of the victim’s blood on Mr. Paramsothy’s clothing and in his home, the items belonging to the victim, including his car keys, that were found at Mr. Paramsothy’s home, the fired shell casing found in Mr. Paramsothy’s jeans, the damaged oil filter with the gunshot particles found in the garage of Mr. Paramsothy’s home, the items belonging to the victim that were found on Mr. Paramsothy, including the victim’s driver’s licence and the residence keys, the firearms found near Mr. Paramsothy at the time of his arrest which are registered to him and his mother, the damage to the tan handgun, which appears to link it to the damaged oil filter, the video surveillance of Mr. Paramsothy purchasing the oil filters, and the video surveillance of Mr. Paramsothy and Mr. Hudson at the shooting range before the murder.

[110] Mr. Paramothy also gave an inculpatory statement in which he provided information that speaks of his involvement in these crimes. While this statement may be the subject of a Charter argument, the Applicant concedes that the argument is not strong.

[111] Considering the totality of the circumstances known at this time, this would appear to be an overwhelmingly strong case for the Crown.

[112] The gravity of the offences is obvious and indisputable. First degree murder is one of the most serious crimes provided for in the Criminal Code. Having said that of course, bail is not precluded in cases of first degree murder, and there are many examples where release has been granted. There is no presumption that someone charged with certain offences should be automatically detained pending their trial. Even where, as here, there is an onus on the accused to demonstrate he or she should be released, the statutory criteria which have been established must always be interpreted in accordance with (and mindful of) the presumption that accused persons should not be detained in custody pending their trial unless it is necessary to do so and from the presumption that the person who is only accused of committing a criminal offence is presumed innocent in relation to that offence.

[113] The circumstances of these alleged offences are shocking and despicable. It is alleged that Mr. Arcara was targeted by Mr. Paramsothy and Mr. Hudson. He was lured to a location under the guise of doing a drug deal. He was restrained by a seatbelt, seated in the driver’s seat of his vehicle, when he was ambushed. He was shot in the head and stabbed in the neck. This all took place in a quiet residential cul-de-sac. There is an elementary school in the neighbourhood and this was a week day evening in May. Mr. Arcara’s body was found around 8 a.m., about the time that residents of this neighbourhood would be going to work and children would be going to school.

[114] Mr. Paramsothy’s alleged actions that night, many of which were described by him during his statement, showed a cruel disregard for others. He provided two firearms, one for himself and one for Mr. Hudson, knowing that Mr. Hudson intended to “waste” Mr. Arcara. He waited patiently while Mr. Hudson shot and killed Mr. Arcara. He then went to the victim’s car. He did not attempt to assist Mr. Arcara, but rather, while Mr. Arcara sat in the driver’s seat of his vehicle, bleeding, he joined Mr. Hudson in robbing him, including reaching into his pockets for his wallet. The shell casing was found in Mr. Paramsothy’s pants pockets, which would suggest that he took time in the vehicle to retrieve this while he was present. Mr. Paramsothy then brought Mr. Hudson, a person he claims to have just shot someone and a person who he claims to be afraid of, back to the home he shared wit his family. While his father, mother and sister slept, he allegedly washed blood from the money they had taken from Mr. Arcara, drank beer and changed clothes. Mr. Paramsothy then drove Mr. Hudson and himself to Toronto in his mother’s Audi, with the intention of entering Mr. Arcara’s condo and robbing him further. He pretended to be a resident of the condo unit when engaging with security, entered Mr. Arcara’s unit with Mr. Hudson, armed with loaded handguns, and participated in the confinement, at gunpoint, of two strangers while items were taken from Mr. Arcara’s residence.

[115] There is no question that if convicted, Mr. Paramsothy faces a lengthy term of imprisonment, given the offences. He is liable on conviction to life imprisonment with no parole for 25 years.

[116] The four factors listed are not to be determinative. Even if the four factors in section 515(10(c) all favour detention, as it would in this case, this does not mean that detention will follow.

[117] Further, the Court made it clear in St-Cloud that the four factors listed are not meant to be exhaustive:

[69] … The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision's purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination. The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.

[118] In addition to the four factors outlined in section 515(10(c), this court has considered the personal circumstances of the Applicant, as someone with no criminal record and all of the other characteristics earlier described.

[119] The proposed plan of release must also be taken into account on the tertiary grounds. Even in cases where the four factors in s. 515(10)(c) fall in favour of the Crown, further considerations, such as a strong plan of release plan, can be sufficient to allay any tertiary ground concerns. See R. v. Iglesias, at para. 61-2. The plan proposed in this case, includes 24-hour supervision, house arrest, and electronic monitoring. He would be under constant supervision, as he would reside with his parents, his sureties, and would only be allowed out of the house for very narrow and specific reasons.

[120] Also, and very importantly, this court has considered how the COVID-19 pandemic impacts any tertiary ground considerations. There is no question that the COVID-19 pandemic is going to lead to delays in the Applicant’s trial being held. The Applicant’s matter was set for a trial; pre-trial motions were scheduled for 2 weeks starting on April 14, 2020, with the ultimate 4-week trial to begin on May 4, 2020. In the wake of this virus, trials have been suspended. Certainly, this is a factor that must be considered in determining whether bail should be granted or denied. See: R. v. T.L., 2020 ONSC 1885 at para. 34.

[121] Further, the Applicant’s ability to properly make full answer and defence is being challenged at this time. The Applicant expects the suspension of professional visits and that this should be weighed in the balance. However, even in the interim, social distancing has made it very difficult for counsel to meet with the Applicant to properly prepare for the eventual trial. Having said this, the Applicant acknowledges that there will likely be sufficient time to prepare when the risks have subsided and does not consider this to be a particularly strong argument at this time.

[122] The Applicant has also submitted that “during this pandemic, particular consideration should be given to an inmate’s physical and mental health when weighing detention against the viability of a house-arrest bail plan”. The Applicant further submitted that his “situation is one where both his physical and mental health are at significant risk should he languish on lockdown, in conditions akin to solitary confinement, with an underlying condition that may put him at greater risk for severe symptoms or death form this virus.”

[123] In considering the tertiary ground, the court must consider the perspective of a “reasonable and well-informed person”. The Applicant submitted that with the public fear about the health-care system being overwhelmed by the number of COVID-19 diagnoses, any reasonable and well-informed Canadian would understand the release of inmates with adequate and sound surety plans. The Applicant points to other cases, previously referred to in these reasons, where it has been discussed that a pro-active approach should be taken by the court to avoid an unmanageable outbreak which would affect scarce resources. Any outbreak at the jail will inevitably impact the community at large.

[124] Cases of COVID-19 have already been confirmed at correctional facilities in Canada, including British Columbia, Quebec and Ontario.

[125] There are currently no confirmed cases of COVID-19 at Central East Correctional Centre, where Mr. Paramsothy is incarcerated. However, this of course, does not mean that it will not happen. Also, the asymptomatic nature of carriers makes it possible that cases do exist which have not yet been identified. Further, as previously discussed, inmates may not be willing to announce symptoms not knowing, or fearing, the consequences of doing so. It seems logical that if cases of COVID-19 occur at the institution, it would spread quickly due to the nature of the living arrangements. An outbreak at the institution, if it occurs, would likely have a significant impact upon the health care system which would have an impact on the public.

[126] It is in this context that the public confidence in the administration of justice must be considered. The reasonable member of the public must be one who is informed that an overwhelmed health care system will affect all.

[127] The Applicant submitted that the court can and should play an active role in ensuring that such an outbreak does not occur, as by the time it happens, it is too late. The Applicant submits that the proper approach is to relieve the pressure in a responsible, structured and supervised way where it can be done. The Applicant acknowledges that not every incarcerated person is going to have a reasonable plan for release and those people will likely need to continue to be detained. However, for someone such as the Applicant, who has a complete plan, with proper supervision, the court should relieve the mounting pressure and order release of the incarcerated person on appropriate terms. The Applicant submits that where a suitable release plan is proposed, the greatest risk to the public is having the person continue to be in custody. This will frustrate efforts to flatten the curve and place pressure on the health care system.

[128] With respect to the tertiary grounds, this court has considered the worldwide reality of the COVID-19 pandemic. There are a number of things that are accepted as true, at least for the purpose of this hearing:

a. Every province and territory in Canada has declared a state of emergency in response to COVID-19. As of April 14, 2020, the state of emergency in Ontario has been extended at least until May 12, 2020.

b. At time of writing this ruling, there are 27,540 confirmed / presumptive cases of COVID-19 in Canada. There have been 954 deaths. The number of confirmed cases in Ontario is 8,447, with 385 deaths.

c. Ontario now has 93 long-term care homes with COVID-19 cases.

d. Best-modelling suggests that Ontarians will experience the peak of the COVID-19 pandemic within the next 7 weeks, likely before June 2020. On April 3, 2020, the Government of Ontario suggested that the peak of this curve is likely to occur in mid-April 2020. There is no reliable information at this time to say that the peak of the curve has yet been reached.

e. There is no specific treatment or therapy for COVID-19. At present, the health impact of COVID-19 can only be managed through population health strategies to reduce the number of new people getting infected. If the healthcare system is not overwhelmed, fewer deaths will occur.

f. The central public measure to reduce the number of new people getting infected is social distancing, in other words, reducing social contact. In Ontario and across Canada, various public health orders have been put in place to implement these measures, such as cancelling schools, forbidding gatherings of more than 5 people, and closing all non-essential workplaces.

g. Two meters of physical distance between people is considered an absolute minimum.

h. There is no substitute for appropriate social distancing. Other interventions such as hand hygiene, face masks, screening for symptoms are all important but less effective.

i. Preventing outbreaks in congregate living facilities is a top priority for a flatten-the-curve strategy for four reasons:

i. Outbreaks in tight spaces happen extremely quickly and are near-impossible to control once they occur.

ii. People living in congregate living facilities tend to have underlying comorbidities that make them more prone to serious adverse outcomes from COVID-19.

iii. Outbreaks in such circumstances can overwhelm health care systems, meaning that scarce resources are consumed by local congregate living outbreaks.

iv. Outbreaks in such facilities serve as tinder for the fire in more generalized outbreaks. People in these settings, including staff who work there, may transfer disease into the general population.

j. Coronavirus survives between a few hours and a few days on surfaces such as plastic and metal. Effectively, continuous cleaning is required to reduce disease transmission on high-touch surfaces where populations are gathered. This kind of continuous cleaning does not (and cannot) occur in correctional facilities.

[129] Public health policy considerations cannot be the only, or even most important, factor to be considered by this court. It is not the role of this court to make public policy determinations, while ignoring legal principles and the merits of the application.

[130] It would be speculative in this case to conclude that Mr. Paramsothy is more susceptible to being infected with COVID-19. While he does have some pre-existing medical conditions, there is nothing to suggest those particular conditions make Mr. Paramsothy more vulnerable than any other member of society. Even if this court were to speculate about the susceptibility of Mr. Paramsothy, this is not determinative of the issue of bail. See: R. v. Phuntsok, 2020 ONSC 2158. This is but one factor to consider.

[131] The Applicant concedes that the COVID-19 pandemic is another factor to be taken into account along with other considerations. It is a complex balancing that must be done on a case by case basis. However, the Applicant submits that while COVID-19 does not trump all other factors, it is relevant on the secondary and tertiary ground considerations and may mitigate any concerns on the secondary and tertiary grounds. This court agrees that the COVID-19 pandemic is relevant to bail considerations, and in fact, can be relevant on primary, secondary and tertiary grounds.

[132] In the cases referred to by the Applicant where release has been granted in the wake of the COVID-19 pandemic, the circumstances have been significantly different, as other bail cases will often be. For example:

a. In J.S., the Crown only sought detention on the tertiary grounds. The applicant had no record and was 20 years old. The charges were possession for the purpose of trafficking certain drugs. The amount of drugs involved, although possibly trafficking amounts, were not high level trafficking amounts. There were no egregious features of the circumstances of the case. The court held that the strength of the case was reasonably strong but not overwhelming. There was no act of violence, as the firearm offences involved possession and not use. The original surety, on her own, had been determined to be inadequate and new sureties were proposed.

b. In C.J., the secondary ground concerns were adequately addressed by the bail plan. The Court’s decision turned exclusively on a consideration of the tertiary grounds. The Crown’s case was very strong, in fact all tertiary ground concerns were present. However, there was no violence involved.

c. In T.L., the bail application commenced on March 13 prior to the court’s suspension of all non-urgent matters. New sureties were put forward, as well as the addition of electronic monitoring. The court found an error on the part of the original justice who ordered detention. During submissions, the court asked to hear from the grandmother’s husband regarding assets. As for the strength of the case, it was certainly far from overwhelming.

d. In T.K., there was no violence involved. There was a new surety proposed which caused the court to have great confidence in release.

e. In Cain, the Applicant had been released at the Ontario Court of Justice in relation to the more serious charges, however, was alleged to have breached the terms of that release, at which point he was detained. The Applicant demonstrated that he had a prior liver injury which put him at a heightened risk of infection. The case was far from overwhelming. There was a new surety proposed along with the addition of home security and electronic monitoring.

The fact that other persons have been released in the wake of the COVD-19 pandemic is certainly not determinative of whether Mr. Paramsothy should be released. The courts have fairly consistently taken the position that COVID-19 is a relevant consideration in determining bail. This court agrees. However, every case must be decided on its own merits.

[133] On April 14, 2020, Justice Bird released R v. Ibrahim, 2020 ONSC 2241, an endorsement in which she considered an application for bail in the context of a person charged with first degree murder and possession of cannabis for the purpose of distribution. Justice Bird noted that there was a “strong circumstantial case”. In relation to the COVID-19 pandemic, Justice Bird noted that “Notwithstanding the risks posed by COVID-19, there will be accused persons who must be detained in custody pending their trial in order to satisfy concerns on the primary, secondary, or tertiary grounds”. Despite a plan of release that included house arrest and electronic monitoring, the court held that detention was necessary.

[134] Having considered the totality of the circumstances, it is the view of this court that Mr. Paramsothy must be detained in order to maintain public confidence in the administration of justice. The tertiary ground must be considered in combination with the plan being proposed. As previously stated, despite the restrictive plan, this court is not confident that it will have any effect on Mr. Paramsothy’s behaviour. Further, the realities of the COVID-19 pandemic do not tip the balance towards release when taking into account all of the other considerations in this case. The COVID-19 pandemic cannot be determinative of these issues. It would appear that the correctional institutions are taking reasonable steps to curb the spread of this virus. It is the view of this court that Mr. Paramsothy is not being subjected to cruel treatment or unnecessary illness as the Applicant suggests. The reasonable person, knowledgeable about the COVID-19 pandemic, knowledgeable about the circumstances of this case, and knowledgeable about the principles of bail and the presumption of innocence would lose confidence in the administration of justice if Mr. Paramsothy were released to live with sureties for which he clearly has demonstrated no respect.

[135] This court agrees with the Applicant that the criminal justice system, in fact the world, is in an unprecedented time. However, this virus does not make release automatic. This virus is another factor to be considered in determining whether detention is necessary in the circumstances.

Conclusion

[136] This court has considered the ladder principle and fully appreciates that a recognizance with sureties is one of the most onerous forms of release and should not be imposed unless all the less onerous forms have been considered and rejected. Given the circumstances of this case, including the fact that this involves a firearm and the underlying circumstances as already described, certainly no lesser form of release than that of a recognizance with surety would be appropriate. Any other form of release would be completely inadequate, and no lesser form of release has been suggested here. However, while this plan is very strict, it would still be up to Mr. Paramsothy to follow it. In my view, the plan proposed, does not alleviate the concerns on the secondary and tertiary grounds.

[137] When the relevant principles of bail are considered, including the constitutional right not to be denied reasonable bail without just cause and the presumption of innocence, it is this courts view that Mr. Paramsothy has not met the onus of establishing why his detention in custody is not justified on the secondary and tertiary grounds.

[138] Despite the plan being proposed, and the sincere willingness of the sureties, this court is not satisfied that Mr. Paramsothy will do what is required of him. Mr. Paramsothy has shown a complete disregard for the safety and well-being of his family. Mr. Paramsothy involved his parents and sister in these matters, by using their property without their consent, and by bringing this matter right to their very doorstep. This court has no confidence that Mr. Paramsothy will respect their role as surety when he certainly did not respect them as parents. This leads this court to believe that Mr. Paramsothy will be a substantial likelihood, if released from custody, to commit a criminal offence or otherwise interfere with the administration of justice.

[139] Further, while this court acknowledges the current state of the COVID-19 pandemic and the risk that it places on congregate living arrangements, the health care system and the public, having considered all of the factors, it is this court’s view that public confidence will be lost if Mr. Paramsothy is released from custody.

[140] As a result of this pandemic, there has been a move toward decreasing the inmate population, where possible. This has included such things as release on bail, creative sentences which avoid incarceration, and temporary absences. These measures should not be confused as meaning that the default position will be for all people to remain out of custody where custody is necessary and warranted.

[141] Detention in these circumstances is necessary and warranted.

[142] The Application for bail is denied.

Justice V. Christie

Released: April 16, 2020