Court File and Parties

COURT FILE NO.: CR-20-89-BR DATE: 2020-04-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Amandeep Baidwan

BEFORE: Justice Skarica

COUNSEL: Steve Kim for Crown/Respondent Sukhwant Baidwan for Accused/Applicant

HEARD: April 16, 2020

Endorsement

REASONS FOR RULING ON APPLICATION FOR JUDICIAL INTERIM RELEASE – SECTION 520 OF THE CRIMINAL CODE – ZOOM HEARING DURING COVID-19 PANDEMIC

OVERVIEW

[1] The accused Amandeep Baidwan was detained on several criminal charges after a bail hearing held on March 9, 2020 in a Hamilton court room. The accused brings a bail review which was heard on April 16, 2020 during the COVID-19 pandemic. The bail review was heard remotely by way of a “ZOOM” hearing. One of the main issues raised by the accused is that there has been a material change of circumstances. The accused argues that the “rapid spread of COVID-19 globally and particularly in Canada, puts the applicant at risk if he remains in custody.”

ISSUES

[2] Issue #1 – Did the learned justice of the peace err in in law by allegedly not providing sufficient and proper reasons.

[3] Issue #2 – Has there been a change of circumstances due to (a) proposal of a new surety and (b) the rapid spread of COVID-19 in Canada thereby placing the accused at risk if he remains in custody.

FACTS

[4] At the original bail hearing, the Crown indicated that the accused had a criminal record which consisted of possession of a schedule 1 substance from 2018 for which the accused received a suspended sentence and 12 months probation in Brampton. In Milton, on June 17, 2019, the accused was convicted of theft under and received a suspended sentence and one-year probation. Conditions of probation required the accused to keep the peace and be of good behaviour and not to consume any unlawful drugs without prescription. The accused was subject to this probation on March 4, 2020, the occurrence date of the Hamilton charges.

[5] Regarding outstanding releases, entered prior to the Hamilton charges, the accused was subject to a $500 recognizance of bail, without deposit and without sureties, dated March 15, 2019, relating to charges alleged to have been committed in Brampton. The charges are listed as Possession Over $5,000, dated May 29, 2018, two counts of Theft Over $5,000, dated October 2, 2018 and a Fail to Comply Recognizance dated January 13, 2019. This $500 recognizance release contained several conditions and required the accused to obey all court orders, attend as required for the Brampton Addictions Program and report any usage of non medically prescribed drugs or alcohol to his case manager and/or treatment provider. The Brampton charges are serious involving allegedly the theft of a loaded trailer of winter tires valued at $80,000 and a theft of a tractor with a trailer load of frozen chickens valued at $140,000. This $500 recognizance replaced other previous releases including a release that prohibited the accused from occupying a driver’s seat. There was no such prohibition included in the March 15, 2019 $500 recognizance.

[6] While on the Brampton $500 recognizance release, the accused on December 16, 2019 was arrested for an incident involving possession of heroin and was released on an undertaking. This undertaking was vacated by J. P. Devellano on March 9, 2020, pursuant to an application under s. 524 of the Criminal Code, R.S.C. 1985, c. C-46, by the federal Crown.

[7] Accordingly, at the time of the Hamilton charges alleged to have been committed on March 4, 2020, the accused was subject to at least three separate court orders: (1) Brampton – June 17, 2019 probation order, (2) Brampton – March 15, 2019 $500 recognizance of bail relating to serious property offences and a fail to comply with a recognizance, (3) Hamilton – December 16, 2019 undertaking relating to possession of heroin.

[8] On March 6, 2020 the accused was arrested and charged with numerous other serious criminal charges alleged to have been committed in Hamilton on March 4, 2020. These included impaired driving, dangerous driving, fail to stop motor vehicle while being pursued by a peace officer, two counts of assault police, escape custody, fail to comply probation and fail to comply with a recognizance by occupying a driver’s seat.

[9] The fail to comply recognizance charge, by occupying a driver’s seat, relates of a January 15, 2019 recognizance that was vacated on March 15, 2019 and the accused has an absolute defence on that charge as was pointed out by counsel to J.P. Devellano.

[10] Regarding the remaining March 4, 2020 Hamilton charges, the Crown’s case is very strong. The accused on March 4, 2020 was seen, while driving a black Ford Fiesta on the QEW in St. Catharines, smoking a pipe with tin foil heated up in his hand. The driver was described by a witness as “out of it”, weaving all over the road travelling at speeds of 120-150 km/hr. The vehicle was registered to Ramandeep Baidwan, the accused’s wife.

[11] Officer Prikken was dispatched to intercept the accused in Hamilton. Officer Prikken observed the accused to be weaving in and out of lanes on the QEW at a speed of 90-100 km/hr. The officer was able to make a positive identification of the accused and directed the accused to pull over onto the right shoulder. The accused appeared dazed and eventually pulled over.

[12] The accused was mumbling, drooling and his speech was extremely slurred. The accused resisted arrest and the officer attempted to handcuff the accused. The accused elbowed the officer and the accused jumped back into his vehicle. The officer was partially hanging out of the open driver’s door while the accused set the vehicle in motion. The officer released the accused and was able to get out of the accused’s vehicle without significant injury.

[13] The accused was last observed driving from the scene at a high rate of speed with the driver door wide open. The officer did not pursue the vehicle as the accused’s identity was known. The accused’s probation officer was contacted as well as the accused’s wife. On March 6, 2020, the accused turned himself in and he was arrested.

[14] The accused’s wife, Ramandeep Baidwan, testified at the March 9, 2020 bail hearing and offered herself as a surety. In cross-examination, Ms. Baidwan testified that she “thought” she was a surety for the $80,000 Brampton tire theft but she was not sure. She was not sure whether she was a surety for the theft of $140,000 worth of frozen chickens. Ms. Baidwan could not remember the exact date when she was a surety or what charges she was a surety for. She could not remember what items her husband had been accused of stealing. Ms. Baidwan indicated that the accused was struggling, and his charges started with his drug addiction. Ms. Baidwan testified that she wanted to help her husband out of “this mess” and agreed that if the Hamilton allegations were true, whatever she was doing to help the accused was not working.

[15] J.P. Devellano, in her reasons for detaining the accused, held that Ms. Baidwan could not control the accused and that she was in denial about his conduct. J.P. Devellano found the Crown’s case to be very strong and held, “I am convinced, if you are released, you would commit further offences. As well, on the secondary ground, I believe you are a danger to the public and therefore bail is denied.” J.P. Devellano also cancelled the previous form of release on the heroin possession charge pursuant to the federal Crown’s s. 524 Criminal Code application.

LAW

POWER OF REVIEWING JUDGE ON S. 520, 521 Cr. C. BAIL REVIEWS

[16] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, Justice Wagner at paras. 120-121, 139 held that a reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of the accused. Justice Wagner held that it will only be appropriate for the reviewing judge to intervene if (a) the initial justice erred in law, (b) the initial justice’s decision was clearly inappropriate, “that is the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another”, (c) new evidence is tendered which shows a material and relevant change in the circumstances of the case.

EVIDENCE ADMISSIBLE AT INITIAL BAIL HEARING

[17] S. 518 of the Criminal Code outlines the evidence that may or may not be considered by the justice conducting the initial bail hearing.

[18] S. 518(1)(e) indicates the “justice may receive and base his decision on evidence considered credible or trustworthy by him (her) in the circumstances of each case.” This provision permits a justice to act upon direct evidence found to be credible or hearsay that is considered to be trustworthy – see R. v. Hadju (1984), 14 C.C.C. (3d) 563 (Ont. H.C.) and St. Cloud at para. 136.

EVIDENCE ADMISSIBLE AT S. 520, 521 Cr. C. BAIL REVIEWS

[19] Sections 520(7) and 521(8) of the Criminal Code allows a reviewing judge to consider the transcripts of evidence and related exhibits introduced at the initial bail hearing. In addition, those sections allow the reviewing justice to consider “additional evidence or exhibits, as may be tendered by the accused or prosecutor”. At paras. 122-123 of St. Cloud, Justice Wagner referred to this additional evidence as “new evidence”.

[20] Justice Wagner, at paras. 128-129, held that new evidence is admissible at a bail review if it meets, with modifications, the established criteria for the admissibility of new evidence on appeal as outlined in R. v. Palmer, [1980] 1 S. C. R. 759 at. 775.

[21] After considering modifications relevant to bail reviews, at paras. 128-139 of St. Cloud, Justice Wagner held that new evidence is generally admissible at a bail review if it meets the following four criteria:

1. Due diligence – In criminal cases due diligence is not applied strictly. The reviewing judge must consider whether there were legitimate and reasonable reasons for not tendering the new evidence at the original bail hearing.
2. The new evidence need not be decisive or potentially decisive. It is sufficient if the evidence is relevant for the purposes of s. 515(10) (that is relevant to the primary, secondary and/or tertiary grounds).
3. The new evidence must be credible in the sense that it is reasonably capable of belief. The new evidence must be credible or trustworthy having regard to the relaxed rules of evidence at the bail stage as outlined in s. 518(1)(e).
4. The new evidence must be significant. The new evidence must be reasonably capable of affecting the balancing exercise engaged in by the justice in s. 515(10)(c).

MATERIAL AND RELEVANT CHANGE OF CIRCUMSTANCES

[22] As indicated in St. Cloud, one of the three criteria, permitting a reviewing justice at a bail review to vary the original bail decision, is evidence showing a material and relevant change in circumstances of the case.

ADDITIONAL PROPOSED SURETIES PRESENTED AT BAIL REVIEW

[23] Justice Hill stated in R. v. Ferguson, [2002] O.J. No. 1969 at para. 17:

“Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change of circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it be reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.”

[24] I agree with Justice Goodman in R. v. T.K., [2020] 1339 at paras 49-50 that Ferguson is still good law in Ontario.

CONSIDERATION OF COVID-19 IMPACT AT BAIL REVIEW

[25] The accused argues that “the rapid spread of COVID-19 globally, and in particularly in Canada, puts the applicant at risk if he remains detained in custody”.

[26] Two questions arise from the accused’s submission:

1. How does a reviewing judge assess risk to an accused in custody due to the COVID-19 pandemic?
2. What type of evidence is admissible and relevant in the bail context, in assessing risk to an accused person in custody?

REVIEW OF COVID-19 DECISIONS

[27] A review of several recent COVID-19 decisions, rendered by my colleagues, illustrates a variety of approaches in dealing with the two questions outlined above.

[28] In R. v. J. S., 2020 ONSC 1710, [2020] O.J. No. 1206 at paras. 18-19, Justice Copeland simply states, “the virus is easily transmitted, absent social distancing or self isolation, and it is clearly deadly to a significant number of people who it infects.”

[29] In R. v. Jeyakanthan, 2020 ONSC 1984, [2020] O.J. No. 1409, Justice McWatt, at para. 29 held that the conclusions in J.S. were “based on speculation and not evidence.” Justice McWatt at paras. 30-32 considered:

1. A news article filed by the accused regarding a jail guard at the Toronto South Detention Centre who tested positive for the virus (where the accused was housed).
2. A briefing note filed by the Crown entitled “Briefing Note – Institutional Response to COVID-19”.

[30] Justice McWatt in Jeyakanthan at paras. 33-34 agreed with the reasoning of Justice Edwards in R. v. Nelson, 2020 ONSC 1728, [2020] O.J. No. 1279 at para. 35 and R. Budlakoti, unreported Ont. S.C.J., March 26, 27, 2020 at para. 14 that at least some rudimentary medical evidence should be submitted by an applicant outlining underlying health issues that would make the accused more susceptible to contracting the virus.

[31] In Nelson, Justice Edwards held at para. 34 that “this court can take judicial notice of the virus and the health emergency that we are all presently living under”. At para. 35, Justice Edwards indicated, “I take judicial notice from everything available via the media and the internet, that younger persons are said to be much less likely to experience the virus in its most severe form. I also take judicial notice that there are some media reports that even younger persons may become ill with the virus. On balance, the information that is available to everyone would suggest older members of society are the ones most susceptible to the virus in its most serious form”.

[32] In Budlakoti, Justice Laliberte, at para. 14, took judicial notice “of the risk associated to the COVID-19 health crisis”. Justice Laliberte, also at para. 14, considered information from the internet that was submitted by the accused and quoted from an article, which indicated that persons “with celiac disease, especially older individuals are at an increased risk of worse outcomes with infections with this new virus”.

[33] In R. v. Cain, 2020 ONSC 2018, [2020] O.J. No. 1389, Justice London-Weinstein at para. 6 considered “material” submitted by the Crown indicating that the COVID-19 situation was under control at the jail where the accused was housed. The learned justice stated at para. 6 that “the virus is contagious before a person demonstrates signs of infection and that persons can be asymptomatic yet highly contagious”. At para. 7, the learned justice indicated, “I also take judicial notice of the fact that recommended social distancing and frequent hand washing, which are required as protection against the virus are not readily available while a person is in custody at the Ottawa Carleton Detention Centre Centre”.

[34] Justice London-Weinstein at para. 11 approved of similar comments made by Justice Conlan in R. v. C. J. 2020 ONSC 1933 at para. 9 where Justice Conlan indicated that he did not need evidence that C.J., while at the jail, was more at risk of contracting COVID-19 than if he was not in jail.

[35] In R. v. Glover, 2020 ONSC 2037 at para. 43, Justice Boswell found the evidentiary record not to be helpful as there was no evidence of whether inmates in correctional facilities are at a statistically greater risk to contract the virus than those in the general population. There was also no evidence as to prevention or isolation strategies that correctional officers have put in place. There was no evidence of any positive tests at the institution where the accused was being held.

[36] In R. v. Phuntsok 2020 ONSC 2158 at para. 26, Justice Barnes took judicial notice of modelling projections released by the Government of Ontario on April 3, 2020.

[37] In R. v. Rajan, 2020 ONSC 2118, [2020] O.J. No. 1437, Justice Harris at para. 36 states that the COVID-19 pandemic will be recorded as a major event in human history and without any supporting references concludes “some estimates put the eventual death toll in the millions”. At para. 53, Justice Harris concludes that “the virus is highly contagious. People who contract the virus are at serious risk of very serious illness or death”.

[38] At para. 64, Justice Harris refers to a Toronto Star article, dated March 29 and refers to a quote from Prime Minister Trudeau indicating that correctional institutions could be places where there is greater vulnerability to COVID-19. At footnote 2, Justice Harris indicates that, with respect to many COVID-19 factual matters, is “quintessentially a matter for judicial notice. No evidence need be tendered”. Justice Harris refers to the leading decision regarding judicial notice – R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 – and disagrees with the decision regarding judicial notice expressed in Jeyakanthan.

CONLUSION REGARDING COVID-19 DECISIONS

[39] The gist of all the decisions reviewed above is that justices are making liberal use of the doctrine of judicial notice. There is frequent reference to quotes in newspaper articles and media sources and frequent reference to information found on the internet. Further, there is disagreement as to what does or does not fit into the judicial notice doctrine.

[40] In my opinion, the doctrine of judicial notice needs to be scrutinized more fully.

THE DOCTRINE OF JUDICIAL NOTICE

[41] The threshold for judicial notice is strict. In the leading case of Find, Justice McLachlan, at para. 48, held that a court may properly take judicial notice of facts that are either:

1. So notorious or generally accepted as not to be the subject of debate among reasonable persons; or
2. Capable of immediate and accurate demonstration by resort to readily acceptable sources of indisputable accuracy.

[42] Regarding Find rule number 2 above, Watt’s Manual of Criminal Evidence, 2019 edition, at para. 14.02, page 136, indicates that the sources that may be consulted to invoke the “readily ascertainable” rule can include dictionaries, almanacs, texts and related authoritative works.

[43] Newspaper and newspaper articles are generally not included as authoritative reference works. Most importantly, Justice McLachlan in Find indicates at para. 49, “The scientific and statistical nature of much of the information relied upon by the appellant complicates this case. Expert evidence is neither notorious nor capable of immediate and accurate demonstration. That is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross-examination”.

[44] Given the above, a court must be very cautious in applying the judicial notice doctrine. This is particularly so given that, where matters of fact are judicially noticed, contrary evidence may not be received – see Watt’s Manual of Criminal Evidence, 2019 edition at p.136. Accordingly, improper use of the judicial notice doctrine has the potential of working an injustice on either party as once the judicial notice doctrine is implemented, both parties lose the right of cross examination on the accepted facts and are not capable of producing any contrary evidence.

TRUSTWORTHY HEARSAY AND THE DANGER OF RELYING ON NEWSPAPER AND MEDIA ARTICLES AND INFORMATION ON THE INTERNET

[45] As previously indicated, Justice Wagner in St. Cloud at para. 136 indicated that evidence at a bail review must be credible in the sense that it is reasonably capable of belief. Justice Wagner indicated that Palmer must be interpreted in light of the relaxation of the rules of evidence at the bail stage and in particular, regard must be had to s. 518 of the Criminal Code, which provides “the justice may receive and base his decision on evidence considered credible and trustworthy by him in the circumstances of each case.”

[46] I conducted a bail review in Superior Court in Hamilton on March 13, 2020, just before the Superior Court suspended its operations. COVID-19 was not part of my consideration in releasing that accused. However, if it had been an issue and counsel or I had done internet and media searches regarding COVID-19 on or before March 12, 2020, we would have uncovered the following information:

• COVID-19 is a coronavirus that was first discovered in Wuhan, China in November/December of 2019, hence the name COVID-19.
• On December 30, 2019 an online network named ProMed, run by the International Society of Infectious Diseases, sent an urgent notice warning of a pneumonia of an unknown cause.
• On January 14, 2020, the World Health Organization (WHO) assured the world that there was no clear evidence of human to human transmission and no reported infections of health care workers.
• Numerous internet and media reports indicate that after initial denials, China, on January 20, 2020 revealed that COVID-19 was capable of human to human transmission.
• On January 23, 2020, China began to lock down Wuhan – a city of 11 million people – indicating that the disease was preventable and controllable.
• International travel continued and the disease spread into other countries that quickly became hot spots such as Iran, South Korea and Italy.
• On January 22, 2020 a man arrived in Toronto from Wuhan and he became Canada’s first case of the disease.
• Canadian public policy was based on information provided to it by senior public health officials who in turn were relying on information provided to them by WHO.
• Dr. Theresa Tam is Canada’s Chief Public Health Officer. Dr. Tam sits on one of WHO’s expert committees.
• Dr. Tam told MPs in Ottawa on January 29, 2020 that “Canada’s risk is much, much lower than that of many countries”. Dr. Tam indicated that, “It’s going to be rare…It doesn’t matter how few these cases are; we are preparing the whole county in the event that you might pick up a rare case.”
• Dr. Tam indicated to MPs at a committee hearing in late January 2020 that the risk of asymptomatic spreading was low. She indicated that, “For the general public who have not been to China, the risk is low in Canada.”
• The Director General of the WHO, Dr. Tedros Adhanom Ghebreysus told the world in a broadcast on February 3, 2020 that, “There is no reason for measures that unnecessarily interfere with international travel and trade”.
• On February 26, 2020 Dr. Howard Njoo, Canada’s Deputy Chief Public Health Officer stated, “We have contained the virus.”
• On March 12, 2020 Dr. Tam was advising Canadians to avoid all non essential travel outside Canada until further notice.
• However, as late as March 13, 2020, the official policy of the government of Canada, consistent with WHO recommendations, was that closing the border was not necessary as closing the border would not be effective and in fact would create harm.

[47] Given the above results of internet and media searches as summarized above, I think I can safely conclude that if COVID-19 was an issue at a bail review on March 13, 2020 most justices, if not all, (if relying on internet information, and especially if relying on the opinions of top public health officials in Canada and the WHO), would have no problem coming to the conclusion that there was no material change in circumstances due to the low risk being described in February to mid March of 2020.

[48] Everything changed on March 14-15 of 2020 as if someone flicked on a switch.

[49] On March 15, 2020, after consulting with public health officials and justice system stakeholders, the Chief Justice of the Ontario Superior Court of Justice, Justice Morawetz sent out a Notice to the Profession that as of March 17, 2020 the Ontario Superior Court of Justice was suspending its regular operations due to the COVID-19 emergency. The Notice indicated that the suspension was being implemented “to protect the health and safety of all court users and help contain the spread of the 2019 novel coronavirus (COVID-19)”.

[50] On March 16, 2020 the federal government announced that Canada would close its borders to non-citizens and residents and extended the ban to include Americans on March 18, 2020 except for selected essential goods, workers and returning Canadians and residents.

[51] This brief review regarding the evolution of events from November 2019 to mid March 2020 is not intended to be critical of anyone. My purpose is to simply point out that a judge, in assessing risk of COVID-19 to an inmate by relying on internet and media information, would be met with information in early April of 2020, that is dramatically different from that in late February/early March of 2020, a period of approximately one month.

[52] The summary above also indicates that public policy was being based on top ranking health experts in Canada and the WHO. It dramatically illustrates the wisdom of the Supreme Court of Canada in Find at para. 49 indicating that expert evidence is not capable of being judicially noticed and must be proved through a properly qualified expert who can be cross examined.

EXAMPLES OF TRUSTWORTHY HEARSAY TO BE CONSIDERED BY A REVIEWING JUSTICE

[53] The discussion above leads to the question: What does constitute evidence capable of being considered to be trustworthy hearsay?

[54] Generally, as outlined above, internet and media articles are not trustworthy hearsay and should be admitted, if it all, with great caution.

[55] In Phuntsok, Justice Barnes at para. 26 considered health models published by the government of Ontario by way of judicial notice. Health models are predictions in the future of projected rates of infection. They are just opinions formulated by health/medical experts as to possible future impacts of COVID-19. Pursuant to Find, the admission, of the opinions of properly qualified experts, needs to provide for the opportunity for cross-examination and cannot be judicially noticed.

[56] Further, there is no evidence in Phuntsok as to just how accurate these models are turning out to be. There is considerable debate in the media regarding their accuracy but if I am to be consistent, I should not rely on this media debate. However, I suggest that before the court relies on models of projected impacts, there should be some evidence introduced as to how accurate the models are turning out to be. The accuracy of models can only be determined in hindsight after the gathering of data of the ongoing impacts of the COVID-19 pandemic. This data will become increasingly available over time. I suggest that at the present time, without any evidence of empirical accuracy, health models should be given little weight as they do not meet the test at present of trustworthy hearsay.

[57] So, what is available to a reviewing court as trustworthy hearsay evidence regarding COVID-19?

[58] It is obvious that as COVID-19 is a new disease, the best and most reliable evidence of its impact is the actual rates of infection and death rates in the Ontario and Canadian population. Hospitals and official agencies in Ontario keep careful records regarding treatment and deaths in various institutions. That is why institutional business records are generally admissible at trial with sufficient notice and disclosure.

[59] Currently, the Ontario government is collecting data regarding infection rates and fatality rates of COVID-19. This data is published regularly by Public Health Ontario. The most recent report, that I have reviewed, is the Epidemiological Summary regarding COVID-19 in Ontario: January 15, 2020 to April 13, 2020 (summary). [1] I suggest that actual data regarding COVID-19 infection rates and death rates, published by government institutions and reputable private institutions are exactly the type of trustworthy hearsay evidence that a reviewing court can rely upon to assess risk. COVID-19 is a new disease but over time reliable data will provide courts with an ever-greater ability to assess risk.

SUGGESTED APPROACH TO ASSESSING COVID-19 RISK IN DETERMINATION OF MATERIAL CHANGE OF CIRCUMSTANCES

[60] Pursuant to the discussion above, in assessing risk, the reviewing court has the following available tools:

1. The judicial notice doctrine which has a strict threshold: see R. v. Find.
2. Credible direct evidence and trustworthy hearsay pursuant to s. 518 (1) (e) of the Criminal Code: see St. Cloud at para. 36 and Hajdu at para.9.
3. In the COVID-19 context, the court should seek to rely on the most recent reliable data regarding infection rates and deaths. This information must come from reliable sources from government and private institutions which have a legal/moral duty to collect and report this data. As the time passes, this data should become increasingly more available and reliable as a tool in assessing risk.

[61] From my analysis of the COVID-19 case law regarding bail reviews and the need to consider the evolving science and collection of data over time regarding this new disease, I suggest that a reviewing justice, when assessing risk to a detained accused, in the context of whether there has been a material change in circumstances due to the COVID-19 pandemic, should consider the following factors:

1. Recent reliable data regarding the general risk, to the Canadian/Ontario/local population, of being infected by COVID-19 and related risk of serious illness/death.
2. The specific risk of an accused due to his/her age and underlying medical conditions.
3. The specific risk of an accused in a particular institution.
4. Any medical evidence particular to an accused’s physical and/or mental health.
5. S. 515(10) (b) of the Criminal Code (the secondary ground) requires a justice to consider whether detention is necessary for the protection or safety of the public. During this pandemic, an individual is required to adhere to social distancing and stay at home rules and/or perhaps any rules implemented under quarantine legislation and rules. An accused’s personal history regarding complying with previous court orders is particularly relevant in assessing whether the accused would likely adhere to social distancing and stay at home rules. An accused who violates social distancing rules and stay at home rules would not be any safer at large than in an institution where risk is being managed adequately.
6. Any other circumstance deemed relevant, i.e. development of vaccines, cures or technological advances in the testing/treatment of COVID-19.

APPLICATION OF LAW TO FACTS

ISSUE #1 – ERROR IN LAW

[62] I find that there is no merit in the accused’s argument that J.P. Devellano erred in law. J.P. Devellano did not consider count 8 (the breach of recognizance charge involving the occupying of the driver’s seat) in detaining the accused. J.P. Devellano had ample evidence that the accused’s wife could not control him due to the multiplicity of serious charges over several years while the accused lived with his wife. Given that the Crown has a strong case and the allegation that the accused committed serious criminal offences while on bail releases and on probation, the learned justice’s conclusion that the accused, if released, would be a danger to the public and would commit further offences is entirely reasonable. The accused’s detention on the secondary ground was both reasonable and correct in law.

ISSUE #2 – MATERIAL CHANGE IN CIRCUMSTANCES

1. NEW SURETY – HARMAN BAIDWAN

[63] The defence called two witnesses at the bail review.

[64] The first witness was the accused’s wife, Ramandeep Baidwan. She, as previously summarized, testified at the first bail hearing. J.P. Devellano held that Ms. Baidwan was supportive but could not control the accused and was in denial about his conduct.

[65] Ms. Baidwan fared no better in her second attempt in testifying for the accused’s release. In fact, she did a lot worse. At the original bail hearing, Ms. Baidwan testified that the accused only breached his bail one time while she was a surety for him. According to her, the breach involved him simply sitting in the driver’s seat of her car while she was at an appointment. Ms. Baidwan repeated this evidence in her bail review affidavit at paras. 17 and 18. However, in cross examination, she admitted that those statements were not true. Ms. Baidwan explained she did not intend to mislead the court but was incorrect because the accused was charged so many times with offences while on different bails, she could not keep track of it all.

[66] In cross-examination, Ms. Baidwan revealed a pattern of criminal charges and breach of bails and guilty pleas that were not presented at the original bail hearing.

[67] For example, she admitted that she was a surety for the accused on 3 occasions previously. The accused would commit further offences after she signed as a surety and would bail him out again after he was charged again while he was on bail that she was a surety for. This happened several times.

[68] Ms. Baidwan revealed that the accused pled guilty to criminal charges on several occasions in 2019 as follows:

1. March 15, 2019 – guilty plea to Theft over x2; Possession of stolen property over $5,000 and Fail to Comply Recognizance. The accused made these pleas in drug court and was released on a $500 recognizance as previously outlined. Ms. Baidwan was a surety on the recognizance that was involved in the accused’s guilty plea to Fail to Comply Recognizance. She admitted that this was the event that she had previously stated the accused was sitting in the driver’s seat while she was at an appointment. Ms. Baidwan did not disagree with the Crown that in fact the accused was seen by the police driving in a high drug use area.
2. July 12, 2019 – guilty plea to Toronto charges of Theft under, Possession of property over $5,000 and Fail to Comply with Recognizance. There was also a guilty plea to a Newmarket charge of Theft over $5000. Ms. Baidwan was a surety on the recognizance that was breached.
3. December 11, 2019 – guilty plea to Assault with intent to resist arrest and Fail to Comply with Recognizance. Again, Ms. Baidwan was a surety on the recognizance that was breached.

[69] Ms. Baidwan admitted that she never withdrew her sureties in the past.

[70] It is clear, from Ms. Baidwan’s testimony, consistent with J.P. Devellano’s conclusions at the original bail hearing, that the accused’s wife, while supportive, has no ability to control the accused. She has failed to control him numerous times for an extended period and there can be no confidence that any plan involving her as a surety will succeed.

[71] The second witness to testify was Harman Baidwan. He was a surety for the accused in 2019 for a two-month period. The accused did not breach his bail for that two-month period. Harman Baidwan admits that the accused still has a drug problem.

[72] Harman Baidwan is the accused’s brother. He is a truck driver. He lives in Brampton but would move to the accused’s home. He indicates he regularly drives to the U.S. as part of his route. He drives to the United States three times a week and spends one to two nights a week in Michigan or Ohio. When in Canada, his work hours are 6 a.m. to 7 or 8 p.m. Accordingly, he would be away from the accused’s home for extended periods of time.

[73] This is a reverse onus situation. I am not satisfied that this new surety would be able to control the accused any more than the accused’s wife, particularly given Harman’s extended absences from whatever home he is living in due to his truck driving job.

[74] I conclude that this is a shuffling of the deck as indicated by Justice Hill in Ferguson and the new surety does not call into question the continued validity of the accused’s detention.

RISK TO THE ACCUSED WHILE IN DETENTION DURING THE COVID-19 EPIDEMIC

[75] Pursuant to the factors that I have outlined, I make the following findings:

1. General risk to Ontario population having regard to most recent data – As previously indicated, the government of Ontario is collecting data regarding infection and death rates of COVID-19 in the Ontario population. This data is published in an official document prepared by Public Health Ontario. A recent published document, which I have previously referred to, is entitled: Epidemiological Summary COVID-19 in Ontario: January 15, 2020 to April 13, 2020 (I will refer to it as “summary”). I believe that the judicial notice doctrine allows me to conclude that in 2019, Ontario had a population of approximately 14.57 million. The summary indicates that as at April 13, 2020, Ontario had 7,953 confirmed cases of COVID-19. 1,912 of these cases were from persons aged 20-39 or 24 per cent of the total infections. At page 6 of the summary, there were a total of 334 deaths from COVID-19 as at April 13, 2020. There were no deaths of any persons 19 and under. There was one death in the age range of 20-39 or a morbidity rate of 0.1 per cent. For the age range 40-59, there were 20 deaths or a morbidity rate of 0.7 per cent. The death rates of all infected persons under 60 years of age in Ontario is less than 1 per cent of confirmed cases. The death rates for people over 60 rises dramatically. This data was published after all the decision dates of the COVID-19 cases that I have previously referred to.
2. Specific risks to accused – The accused’s date of birth is October 10, 1981. He is 38 years old. According to current data, in the accused’s age range, there is only one person in Ontario who has died after being infected by the virus. Even if infected, according to the data in the summary, the accused’s chances of death are 0.1 per cent.
3. Specific risks in institution – The Crown filed with its materials an Information Note – Institutional Services Response to COVID-19, dated April 6, 2020 (the Information Note). A similar document was considered by Justice McWatt in Jeyakanthan at para. 31. The document contains data relating to the inmate population in Ontario and the infection numbers of COVID-19 in the inmate population in Ontario. I consider this document to contain data that comes from a reliable source from government agencies that have a legal/moral duty to collect this type of information. Accordingly, this document can be trustworthy hearsay that I can consider in this bail review. The Information Note indicates that as at April 6, 2020 there are 6,148 inmates in Ontario across 25 institutions (after the institutions recently reduced the prison population by 25 per cent). The Information Note details several strategies that have been implemented to limit the effect of COVID-19 on the inmate population and correctional staff. As at April 3, 2020, 77 inmates have been tested for the virus with 51 negative results and 4 positive results with the remainder pending or unknown. Of the 4 positive results, two are in the Toronto South Detention Centre (TSDC); one was an intermittent inmate at the TSDC. The fourth inmate was in the Monteith Correctional Centre. Two staff and one third party contract worker tested positive for COVID-19. These positive tests came from the TSDC, South West Detention Centre and the Hamilton Wentworth Detention Centre (HWDC). The Information Note indicates proper protocols were undertaken with the local Medical Officer of Health to contain the exposure regarding these three individuals. The defence filed an affidavit from an articling student which included a CBC March 27, 2020 report confirming a staff member at the HWDC tested positive for COVID-19. The CBC report outlines steps were taken to protect HWDC inmates. It confirms that there are no cases of COVID-19 of inmates at the HWDC. This information in the CBC report does not add any material information that is not in the Information Note. The affidavit from the articling student relies on information from a counsel, Mr. Baidwan, who spoke to the accused over the phone. The articling student reports what Mr. Baidwan was told by the accused regarding jail conditions. This is double hearsay. What is curious is that the defence filed an affidavit from the accused and the accused’s affidavit makes no reference to any of the jail conditions relating to the accused. It seems to me that it is odd to have the accused, if he is filing an affidavit (which he is not required to do) and ultimately complaining about crowded conditions, to not outline his direct experience in the jail. Instead, the accused relies on an affidavit that is second hand hearsay. The second hearsay affidavit outlines that the accused is being subjected to crowded conditions, consistent with the judicial notice taken of such conditions in several of the cases dealing with COVID-19 related bail reviews.
4. Medical evidence – The accused has struggled with drug addictions. However, he has presented no medical evidence regarding any health/mental conditions that would make him more susceptible to serious consequences from an infection from the virus.
5. Violation of court orders – The Crown’s case against the accused is very strong. The allegations are very serious and were alleged to have been committed while the accused was on probation and at large on bail regarding other serious allegations. The accused has several recent convictions for Fail to Comply with Recognizance. Accordingly, I am skeptical of the accused’s ability to adhere to public recommendations regarding physical distancing and stay at home rules.
6. Other relevant factors – The current charges involve a serious assault against a police officer. These are not minor offences but serious offences involving violence while the accused was subject to probation and bail terms.

CONCLUSION REGARDING RISK TO ACCUSED WHILE IN CUSTODY DURING COVID-19 PANDEMIC

[76] As of April 13, 2020, there is only one person under 40 in all of Ontario that has died from COVID-19.

[77] The accused is relatively young – 38 years old – and there is no evidence of underlying medical conditions. There is no medical evidence regarding any susceptibility to a COVID-19 infection.

[78] There is no evidence of a COVID-19 outbreak at the Hamilton Detention Centre. In fact, there are no inmates currently infected with COVID-19.

[79] Like the conclusion reached in Jeyakanthan, the accused has not established that there is a material change in circumstances that would allow me to interfere with Justice Devellano’s decision to detain the accused based on considerations involving the current COVID-19 pandemic.

[80] Justice Edwards has pointed out in Nelson at para. 18 that an accused is always deemed to be innocent until proven guilty and the right to reasonable bail is a fundamental right that is not to be interfered with lightly.

[81] I agree but I wish to add a counter point. This is a time of great fear in Canada that has no equal during my lengthy lifetime. This fear has come in two powerful waves: there is an unprecedented fear of disease from an invisible enemy and in addition, there is also a great fear of job loss and economic insecurity not seen since the Great Depression in the 1930s.

[82] The last thing that the Canadian public needs right now is a third wave of fear arising from an emptying out of the jails of persons charged with serious and violent crimes who have been legitimately detained after being afforded due process and after having been provided the full panoply of legal rights provided by the Charter of Rights and Freedoms and the Canadian judicial system. The wholesale release of dangerous persons who would otherwise be detained but for the COVID-19 pandemic would seriously undermine the confidence of the public in the administration of justice.

CONCLUSION

[83] The accused/applicant has failed to establish any error of law or any material change in circumstances that would justify my setting aside J.P. Devellano’s detention order at the original bail hearing. At this bail review, the Crown seeks the accused’s detention. However, the Crown, in its written submission, took the position that it does not dispute that there has been a material change in circumstances, but I disagree for the reasons outlined. I am not bound by the Crown’s submission as to the law. The Crown did indicate that his concession was based on the cases that I have referred to. To be fair, the Crown’s concession was made before being made aware of the data in the Ontario Public Health summary that I have referred to.

[84] I might add, that even if I had found that there was a change in material circumstances, I would have detained the accused in any event on the secondary ground. I find that the evidence clearly establishes that the accused’s detention is necessary for the protection and safety of the public.

[85] Further, I find that that there is a substantial likelihood that the accused, if released from custody, would commit further offences. I reach this conclusion for the following reasons:

1. For the past two years the accused has been struggling to control his drug addiction but has not been successful in doing so despite support and assistance from his wife and family.
2. The accused has committed numerous offences while on several bails over the past two years. These offences were mainly property related but some of the charges involve thefts and possession of items of significant value.
3. The accused has pled guilty to several theft and breach of recognizance offences in the recent past. In 2019 alone, he has pled guilty to six property crimes and three fail to comply charges. The bulk of these crimes were committed while the accused was on some form of judicial interim release.
4. The accused’s record appears to be becoming more serious over time. For the first time regarding crimes of violence, on December 11, 2019 the accused was convicted of Fail to Comply Recognizance and Assault police with intent to resist arrest. The accused was again charged in Hamilton with assaulting a police officer on March 4, 2020.
5. The Hamilton charges alleged to have been committed on March 4, 2020 are very serious as previously summarized. It is a fair inference that the accused again was unable to control his drug habit and endangered the arresting officer, himself and the general public by committing numerous crimes involving impaired and dangerous driving and committing crimes of violence against an arresting police officer.
6. The Crown’s case on the Hamilton charges is very strong.
7. The Hamilton charges were alleged to have been committed while the accused was subject to three separate court orders: a probation order and two bail releases.

ORDER

[86] The accused’s application for bail is denied. The detention order made by J.P. Devellano remains in full force and effect.

Skarica J.

DATE: April 20, 2020

[1] Ontario Agency for Health Protection and Promotion (Public Health Ontario). Epidemiologic summary: COVID-19 in Ontario – January 15, 2020 to April 13, 2020. Toronto, ON: Queen’s Printer for Ontario; 2020.