COURT FILE NO.: CR-16-7162-00BR DATE: 20200417 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – XAVIER GREAVES Applicant

Peter Westgate, for the Crown Mr. Rupin Singh Bal, for the Applicant

HEARD: By telephone conference call, April 14, 2020

reasons for decision

EDWARDS j. :

Overview

[1] This is an application brought under s. 520 (1) of the Criminal Code, in which the Applicant seeks an order granting him a release from custody pending his trial. The primary basis for the order sought arises out of the COVID-19 pandemic and its impact on him as an inmate at the Central East Correctional Centre (“CECC”).

[2] The Applicant was charged with two counts of Fail to Comply with Probation Order (Criminal Code s. 733.1(1)), two counts of Unauthorized Possession of Firearm (Criminal Code s. 91(1)), Assault with a Weapon (Criminal Code s. 267), Possession of a Schedule I, II or III substance (Controlled Drugs and Substances Act s. 4(1)), Possession of a Loaded Prohibited/Restricted Firearm (Criminal Code s. 95(1)), Possession of Weapon for Dangerous Purpose (Criminal Code s. 88(1)) and Unauthorized Possession of Firearm Knowing it is Unauthorized (Criminal Code s. 92(1)), on January 26, 2020.

[3] The Applicant had a bail hearing in front of His Worship Frederickson on February 12 and 13, 2020. He was detained due to concerns on the tertiary ground.

[4] Because of the closure of this court due to the pandemic, this bail review was conducted by conference call on April 14, 2020. In attendance were counsel for the Applicant and the Crown. The Applicant did not attend by conference call, nor did he attend in person. Counsel agreed that this bail review could take place in the absence of the Applicant.

[5] While the plan for release proposed by the Applicant is much the same as it was before the Justice of the Peace, it is conceded by all parties that the ongoing COVID-19 pandemic is a material change in circumstance.

Allegations

[6] The Crown alleges that on January 26, 2020, the Applicant attended at the apartment of his girlfriend where an argument occurred. The argument ended up with the Applicant threatening his girlfriend with a firearm. The girlfriend fled her apartment with her young child. The Applicant then located another female acquaintance in the basement of the apartment building and demanded information about his girlfriend’s location.

[7] In his confrontation with the female acquaintance, the Applicant is alleged to have again brandished a firearm.

[8] When the Applicant realized that the police had been called, it is alleged he stored the firearm behind a dryer located in the laundry room of the apartment building. Video surveillance is said to confirm that the Applicant did in fact have a firearm on his person in the laundry room. The police executed a search warrant behind the dryer seen in the video. As a result of that search, a fully loaded Glock 43 pistol was located.

[9] When the aforesaid events referred to above are alleged to have occurred, the Applicant was subject to a probation order issued by Dwyer J. on March 2, 2018. One of the conditions of the probation order was that he was not to possess any weapons.

[10] Subsequent to the alleged assault on his girlfriend, a search warrant was executed at her apartment which revealed the following:

a) Three Part III summonses in the Applicant’s name. These were located on a dresser in the master bedroom along with a quantity of cocaine. b) The Applicant’s driver’s licence and health card in a duffel bag. These were located in a bedroom occupied by the girlfriend’s child. c) A magazine for the Glock handgun was found in a bag with approximately $8,000. These were located on the bed in the master bedroom.

[11] The Applicant is approximately 23 years of age. Despite his relative youth, he has a criminal and youth record that reflects a propensity for violence. In 2014, the Applicant was convicted of Possession of a Weapon and two counts of Assault. In 2018, the Applicant was convicted of Assaulting a Peace Officer and two counts of Aggravated Assault. In connection with the 2018 convictions, the Applicant received a custodial sentence that was the equivalent of three years in jail. This sentence reflects the gravity of the assault as amplified in the Crown’s submissions. In that regard, the Applicant did not contest the Crown’s submissions that the assault in 2018 involved a broken bottle and knife which the Applicant used to “partially disembowel the victim”.

[12] While there is a new bail plan being proposed by the Applicant which includes an additional surety in Edrice Greaves, I agree with the Crown that for the most part it is the same release plan submitted to the Justice of the Peace earlier this year. The bail plan being proposed is as follows:

a. Xavier Greaves will reside with his mother, Wanda Greaves-Hawkins, and stepfather, Gavin Hawkins, at a residence located at 8 Townwood Drive, Unit 20, Richmond Hill, Ontario L4E 4X9. b. Xavier Greaves will be on house arrest 24 hours a day, wearing an ankle bracelet from Recovery Science Corporation at all times which would monitor his location. c. Should Wanda Greaves-Hawkins or Gavin Hawkins not be able to supervise Xavier Greaves because of their employment commitments, Edrice Greaves is willing to supervise Xavier Greaves at 8 Townwood Drive, Unit 20, Richmond Hill, Ontario L4E 4X9. Edrice Greaves is Xavier Greaves’ grandmother. Edrice Greaves is willing to supervise Xavier Greaves and be a surety for him.

[13] At his bail hearing, Justice of the Peace M. Frederiksen found that the proposed release plan was satisfactory, that the primary and secondary grounds were met, and that public safety was not an issue. The Applicant was ordered detained on the tertiary grounds.

Position of the Applicant

[14] The primary focus of the Applicant’s argument rests with the ongoing COVID-19 pandemic, and how it has the potential to materially impact on the Applicant given his present circumstances as a person incarcerated at the Central East Correctional Centre (“CECC”). In that regard, the Applicant relies on a medical opinion prepared by Dr. Orkin and signed on April 7, 2020. Dr. Orkin is a medical doctor with a specialty in epidemiology. Epidemiology involves the study, control and prevention of disease with respect to the population as a whole, or to defined groups thereof as distinguished from disease in individuals. Dr. Orkin is an Assistant Professor in the Department of Family and Community Medicine at the University of Toronto, and he practices as an emergency physician at two major hospitals in the City of Toronto.

[15] The essence of Dr. Orkin’s opinion is that because the Applicant is incarcerated his ability to “socially distance” is significantly impacted and, as such, he is rendered more susceptible to contracting COVID-19 than if he was not incarcerated.

[16] As for the primary ground for detention, Mr. Bal argues - and this was conceded by the Crown, that the Applicant having strong roots in the community he is not a flight risk. As for the secondary ground, Mr. Bal argues that with the plan of release which incorporates strict terms of house arrest coupled with electronic monitoring, that there is no opportunity for the Applicant to re-offend. As for the tertiary ground, Mr. Bal argues that as it relates to the strength of the Crown’s case “it is convoluted”. Dealing with the gravity of the case, Mr. Bal argues that the allegations are a “lot worse than what it was”. As previously noted, as it relates to the tertiary ground, the focus of the Applicant’s argument in favour of release is the impact of the COVID-19 pandemic.

Position of the Crown

[17] Mr. Westgate concedes that the primary ground for detention is not triggered in this case. Mr. Westgate focused his argument on both the secondary and tertiary grounds. Mr. Westgate, in my view correctly argues, that the plan of release that is now proposed differs little from the plan proposed to the Justice of the Peace.

[18] As it relates to the secondary ground, Mr. Westgate argues that the Applicant is someone who has shown a disregard for court orders in the past and references the fact the Applicant was on bail at the time of the 2018 convictions. In that regard, his grandmother (who is now proposed as a surety in this case) was his surety. In cross-examination, she conceded that at the time he was viciously assaulting someone she was his surety, and she knew he was not at her home when the assault was occurring. She chose not to call the police as she “placed her faith in God”.

[19] Dealing with the tertiary ground, Mr. Westgate concedes that the COVID-19 pandemic is a material change in circumstance that this court should consider. Nonetheless, Mr. Westgate argues that the following factors favour the Applicant’s continued detention:

a) the strength of the Crown’s case - in that regard, Mr. Westgate points to the videotape evidence which he argues clearly shows the Applicant in possession of a gun in the laundry room of the apartment building. b) the gravity of the offences - in that regard, Mr. Westgate points to the fact that the charges involve the use and possession of a firearm and that the Applicant has demonstrated, as evident by his criminal record, a propensity for violence in the past. c) the circumstances of the offence - in that regard, it is argued the alleged offences include threats of violence with a gun against the Applicant’s girlfriend and another female acquaintance. d) public confidence in the administration of justice - Mr. Westgate, while conceding the gravity of the present circumstances as they relate to everyone in society, notes that there is no evidence that the virus is in the CECC where the Applicant is presently incarcerated.

Analysis

[20] In a recent decision of the Court of Appeal, Trotter J.A. dealt with an application for bail pending appeal. The motion was heard in the context of the COVID-19 pandemic. Dealing with the particular facts of that case, Trotter J.A. stated:

In all of the circumstances, I conclude that Mr. Morgan poses a significant risk of committing further offences if released on bail. His criminal record, while not lengthy, does not bode well in terms of public safety. He committed the current set of offences while on bail for possessing a loaded firearm and not long after being convicted of drug offences. On the gun charges, his release on bail was not going well to begin with, leading to Mr. Morgan’s decision to return to jail rather than submit to the supervision of his surety at the time. This animosity persisted, resulting in a vicious attack on the victim months later after Mr. Morgan had been released with a different surety. (See R. v. Morgan, Ont. C.A. M51470 (C67536))

[21] In another recent decision of the Court of Appeal, this time in the context of an application for bail pending the accused’s appeal to the Supreme Court of Canada, Harvison-Young J.A. in granting bail held:

With regard to the reviewability interest, I cannot say any more than the merits, while not frivolous, are weak. As the Applicant submits, the SCC has granted leave in cases involving the interpretation and clarification of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, it is not at all clear that the SCC is likely to grant leave here.

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.

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.

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.

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.

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.

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 (sic). (See R. v. Kazman, 2020 ONCA 251.)

[22] In Kazman, it is noteworthy that the Appellant had no prior criminal record and the offences for which he had been convicted involved allegations of fraud and money laundering. While these offences were seen as serious, they did not involve allegations of violence nor the use or possession of a firearm.

[23] COVID-19 is a material change in circumstances and a relevant consideration under the tertiary ground for detention. In R. v. J.S., 2020 ONSC 1710, Copeland J. found that 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.

[24] In R. v. Cain, 2020 ONSC 2018, the Crown presented material suggesting that the COVID-19 situation was under control in the jail. In her Reasons, London-Weinstein J. ruled in favour of release and took 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 (“OCDC”). This is not a criticism of the facility, it is merely a statement of the fact that prisoners cannot adequately socially isolate, nor wash their hands with frequency in the jail.

[25] In R. v. T.L., 2020 ONSC 1885, the Crown’s case was strong. The offence was a very serious one. The shooter was charged with attempted murder. The accused was charged with having aided that. The accused was also charged with having provided the weapon. The surrounding circumstances were also aggravating. If convicted of even some of these charges, the accused will likely have faced a significant sentence in a penitentiary. These were all factors supporting detention. Ruling in favour of granting bail, Molloy J. held:

However, this is not a “tick-off-the-box” exercise. The fact that these factors exist does not mandate detention. These are simply relevant factors to take into account in determining whether public confidence in the administration of justice would be undermined. A contextual approach must be taken, looking at all of the surrounding circumstances, including (as I have already mentioned) the strength of the plan of supervision.

In the unique circumstances in which we now find ourselves, facing a global COVID-19 pandemic, it is also relevant to take into account the realities of detention and release in our current environment. Mr. L. is currently detained at the Toronto East Detention Centre. He is presumed to be innocent of the crimes with which he is charged. At the current time, all courts are effectively closed except for emergency applications. All matters scheduled for trial in the Superior Court of Justice from mid-March through to the end of May have been adjourned to June. Even assuming the courts are open for business as usual at that point, a significant backlog will have been created. It is very difficult to predict when Mr. L.’s trial will be reached, but we can expect it will be many months from now, probably longer. The additional time that Mr. L. will be in custody pending his trial is a factor to take into account on the tertiary ground.

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).

The Crown in this case argued that because the grandparents are seniors they would be endangered by having their grandson live with them during this pandemic and that this is a negative factor that must be balanced against the advantage to the accused. First of all, as I have just discussed, it is not simply an advantage to the accused, it is a benefit to many others as well, including the community as a whole…

In these circumstances, I find that a well-informed member of the community, knowing all of this information and understanding the constitutional rights involved, would continue to have confidence in the administration of justice if Mr. L. was released on bail under strict terms to be under house arrest in his grandparents’ home. Accordingly, I find that the accused has met his onus on the tertiary ground.

[26] In R. v. Hastings, 2020 ONSC 2083, the accused was charged with a number of offences and had multiple bails in place. The offences charged included offences against the administration of justice, domestic assaults and driving offences. The same surety that had been proposed on the initial bail, the accused’s mother, was proposed again as one of the sureties on the bail review.

[27] In rejecting the accused’s application, P.J. Monahan J. addressed how the existence of the COVID-19 virus might be relevant where real concerns regarding the primary and secondary grounds exist (as opposed to the tertiary ground cases such as R. v. J.S., 2020 ONSC 1710). Monahan J. accepted that the threat of the virus in a provincial institution might provide an additional deterrent against an individual breaching the conditions of his release. Nonetheless, Monahan J. noted that the accused had led no evidence to support that argument. The accused was young and healthy; there were no cases of COVID-19 in the correctional institution in which he was detained; and the court did not hear from the accused himself regarding whether the existence of COVID-19 would alter his behaviour if released. Ultimately, neither the COVID-19 pandemic nor the proposed electronic monitoring addressed the concerns identified under the primary and secondary grounds that caused the accused to be detained in the first place.

[28] In R. v. Fraser, 2020 ONSC 2045, the accused unsuccessfully sought release from detention, arguing a material change in circumstances in light of a new release plan and the COVID-19 pandemic. He argued that the virus posed a potential health and safety risk to inmates in general, and to the accused in particular because he was being housed with 12 other inmates and he was in remission from leukemia. In her Reasons, A.E. London-Weinstein J. agreed that the COVID-19 virus was a material change in circumstances warranting a de novo bail hearing, and that the heightened risk posed to detained inmates is a factor when assessing the primary, secondary and tertiary grounds for detention, following R. v. J.S., 2020 ONSC 1710 and R. v. T.K., 2020 ONSC 1935. She also accepted the accused’s testimony that: the recommendations of health experts, like social isolation and hand washing, were not possible to implement in his current living conditions; the accused was a cancer survivor which put him at increased risk; and his fear of the virus was motivation to comply with his release terms. Nevertheless, she denied the application because weighed against the accused’s long history of disobeying court orders and unsatisfactory bail plan, his public safety risk could not be managed in the community.

[29] In R. v. Brown, April 3, 2020 (OCJ), the accused was charged with firearms related offences. He had no outstanding charges. He had a record for like offences. A bail hearing was heard in the Ontario Court of Justice. The accused argued that his respiratory issues made him more susceptible to contracting COVID-19. The court found that without any medical evidence of how the virus would impact him specifically, this was not a material change in circumstances. The court also noted: “The court cannot be seen to be giving the impression that as a result of this virus, the criminal justice system is a free-for-all. The administration of justice would deteriorate if the public were to perceive that due to existence of this virus, its ability to ensure the safety of the public is compromised”.

[30] The aforesaid review of the caselaw is by no means a complete review of all of the cases that have come before this court since March 15, 2020. It is also in no way a reflection of what other courts across the country are doing with similar applications. What the aforesaid review does do, is demonstrate that there is a diversity of outcomes amongst the various decided cases. What now appears to be beyond any dispute is that the unique times in which we are all now living requires everyone to accept that COVID-19 can strike anyone, anywhere and at any time. In that regard, I have absolutely no difficulty in understanding the opinion expressed by Dr. Orkin that given the well publicized experience with cruise ships, hospitals and now long term care facilities, that “it is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada and therefore extremely likely that all inmates in these settings will be exposed in one way or another”.

[31] In expressing the opinion that he does, Dr. Orkin then goes on to suggest that the more inmates that are removed from a correctional facility the greater the chance that those who remain can practice “social distancing”. In principle, it is difficult to argue with this approach. Nonetheless, Dr. Orkin completes his report by acknowledging that “a judicial official deciding whether or not to detain somebody will inevitably take other considerations into account and will have to balance various factors in determining what is in the community’s best interest”.

[32] If I was a doctor (and I am not), it would be easy to endorse the concerns and recommendations of Dr. Orkin. But as Dr. Orkin concedes, a judge must apply other considerations - in this case they are enumerated in the jurisprudence and s. 515(10) of the Criminal Code.

[33] Over the last three or four years, it has become clear from several decisions from the Supreme Court of Canada that bail should only be denied to an accused person in a “narrow set of circumstances”, and only “when necessary to promote the proper functioning of the bail system”. (See R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 50.) Judges at all levels dealing with matters involving bail are reminded by Antic and R. v. Myers, 2019 SCC 18, that incarceration pending a trial is not and never should be the norm. We must always remind ourselves, despite the clarion call in the media and public at large for judges to get tough on crime, that an accused – regardless of the charges before the court, is always deemed innocent until proven guilty and that the right not to be denied unreasonable bail is a fundamental right not to be treated lightly.

[34] The Applicant in this case has a prior history of violence. He has a prior history of not complying with court orders. He now faces very serious charges involving threats of violence with a firearm. The strength of the Crown’s case, in my view, appears to be strong. The video evidence appears to confirm that the Applicant was in possession of a firearm. The evidence seized from the apartment of the Applicant’s girlfriend appears to link the Applicant to the apartment. If the Applicant is convicted, he faces a sentence that likely will include incarceration in a penitentiary. With these factors in mind, I agree with the Crown’s submissions that there is a real likelihood that despite the plan of release the Applicant may re-offend if he was released.

[35] As it relates to the specific issue raised by the Applicant – the potential impact of COVID-19 on him as a person incarcerated at the CECC, I do not dispute for a moment that as Dr. Orkin suggests, the more persons who are incarcerated that can be released the better the chance of social distancing in the jail and, thus, the better the chance of dealing with COVID-19. But with the guidance now given by the Court of Appeal in Morgan and Kazman, it is clear that raising the spectre of COVID-19 does not mean that everyone will be released. Rather, the court must still examine each application for release on a case-by-case basis.

[36] Where an accused seeks release and that accused either does not have a criminal record or the criminal record does not involve crimes of violence, this is a factor that may weigh in favour of release. Where an accused has no prior record for disobeying court orders, that is also a factor that may weigh in favour of release. Where an accused has no prior history of committing offences while out on bail, that may also weigh in favour of release. Where there is medical evidence that suggests someone who is incarcerated may be more susceptible to contracting COVID-19 and/or medical evidence that might suggest the medical outcome for someone contracting COVID-19 while incarcerated could be catastrophic, then such evidence may (together with all of the aforesaid factors) weigh in favour of release.

[37] Where, however, the Crown presents a strong case against an accused; where the accused has a prior criminal record involving violence; where the accused has demonstrated in the past a propensity to disobey court orders and to commit offences while out on bail; where an accused faces charges involving crimes of violence and firearms, these are all circumstances that in my view - despite all the very legitimate concerns about COVID-19, weigh in favour of continued incarceration. In my view, all of the aforesaid factors apply to the Applicant.

[38] In the end result, as Dr. Orkin concedes in his report, a judge dealing with applications such as the one before me has to take other considerations into account and balance various factors in determining what is in the community’s best interest. I am not satisfied, for the reasons set forth above, that there would be confidence in the administration of justice if the Applicant was released from jail. The Application for judicial release is denied.

Justice M.L. Edwards

Released: April 17, 2020

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – XAVIER GREAVES Applicant REASONS FOR DECISION Justice M.L. Edwards

Released: April 17, 2020