Court File and Parties
COURT FILE NO.: DR(P) 51/20 DATE: 20200417 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Jamar Ferguson
BEFORE: Stribopoulos J.
COUNSEL: Ms. J. DeVuono, for the Crown / Respondent Mr. A. Alawi, for the Accused / Applicant
HEARD: April 16, 2020, via audioconference
Endorsement
[1] Mr. Ferguson applies under s. 520(1) of the Criminal Code, R.S.C., 1985, c. C-46, to review the detention order made by Justice of the Peace S. D'Souza on November 20, 2019.
[2] With the consent of the parties, given the ongoing shutdown of in-person court proceedings due to the COVID-19 epidemic, this application was heard by teleconference.
[3] At the time of his initial bail hearing, Mr. Ferguson faced three separate sets of charges.
[4] First, charges of theft and assault alleged to have occurred on September 16, 2017. The complainant is M.M. On these charges, Mr. Ferguson was released on bail, with B.D. as the named surety. Since the bail hearing, the trial of that charge commenced before Justice Caldwell in the Ontario Court of Justice. That trial is ongoing. It was scheduled to continue on April 14, 2020 but was adjourned to June 2020 to schedule a further date due to COVID-19.
[5] Second, a charge of assault alleged to have occurred on October 12, 2018. The complainant was B.D., the surety on the first set of charges. The accused's arrest took place on September 10, 2019, when he finally surrendered to police. In March 2020, Mr. Ferguson pled guilty to that assault and received a conditional discharge and 12 months of probation.
[6] Finally, the accused faces 21 charges involving J.D. These charges include allegations that he procured Ms. D. and trafficked her in the sex trade, beginning when she was just 17 years old, and that he subjected her to repeated acts of physical and sexual abuse. The allegations span the period from October 2018 until November 2, 2019, when Mr. Ferguson was, yet again, arrested.
[7] At his bail hearing, Mr. Ferguson had the burden of justifying his release because of the outstanding charges he was facing. At the time, he was 27 years of age and did not have a criminal record. His release proposal envisioned him living with his grandmother, who was also willing to act as a surety and pledge $10,000, with his mother and sister also serving as sureties, but pledging more modest amounts.
[8] The Justice of the Peace concluded that Mr. Ferguson failed to show cause for his release on both the secondary and tertiary grounds. In his reasons, the Justice of the Peace detailed the allegations. He noted various items of evidence that the Crown argued were corroborative of Ms. Dunn's account. Further, he remarked that he was "struck by how little the sureties know about Mr. Ferguson and his alleged secretive lifestyle." Ultimately, he concluded his reasons by noting:
Your sureties, well-intentioned as they are, and as tight as the bail plan is, do not take you from the substantial risk you pose to a manageable one. Given the impulsive, violent, and heinous nature of the offences before the court, committed while on a residential surety release and awaiting trial on another similar matter, it would give rise to the public losing confidence in the administration of justice.
[9] On this application, Mr. Ferguson says there are two material changes in circumstance justifying this court reconsidering the question of bail. First, a more stringent release plan, which includes the policing of the home confinement condition through the use of a G.P.S. ankle monitor, and his grandmother pledging $50,000. Second, the COVID-19 epidemic.
[10] The Crown concedes that the COVID-19 pandemic constitutes a material change in circumstances. That was a sensible and fair concession. Anyone exposed to COVID-19 faces the risk of contracting a life-threatening illness. The inability to effectively engage in social distancing within a detention centre fundamentally alters the stakes for those detained in custody as compared to the period before the pandemic.
[11] Therefore, the question to be decided on this application is whether or not Mr. Ferguson has demonstrated that his detention in custody is not justified. More specifically, given the position of the parties, whether he has shown that if released, he will not pose a threat to public safety: Criminal Code, s. 515(10)(b). And, further, having regard to all of the circumstances, including the ongoing pandemic, whether he has shown that his detention is not necessary to maintain confidence in the administration of justice: Criminal Code, s. 515(10)(c). There is a sharp disagreement between the parties regarding both issues.
[12] Concerning the secondary ground for detention, Mr. Alawi emphasizes both his client's lack of any prior criminal record and the stringent release plan he is now putting forward. He argues that Mr. Ferguson has shown that there is no "substantial likelihood" of him committing an offence or interfering with the administration of justice should he be released on bail.
[13] Further, he notes that both Mr. Ferguson's grandmother and mother have acted as sureties for him in the past. Each is familiar with a surety's responsibilities and can be trusted to discharge that role conscientiously. Mr. Alawi submits that is evident from each having withdrawn as a surety when Mr. Ferguson faced charges as a teenager.
[14] Mr. Alawi also submits that this is not a case where detention on the tertiary ground is justified. He concedes that the allegations are gravely serious. If convicted, Mr. Ferguson faces mandatory minimum sentences. And, Mr. Alawi acknowledges, he would very likely receive a sentence well above the minimums in the range of eight to ten years of imprisonment.
[15] However, Mr. Alawi argues that it is far from apparent that the Crown has a strong case. Further, Mr. Alawi notes that none of the allegations involve the use of a firearm. Given all of that, along with the ongoing pandemic, Mr. Alawi argues that Mr. Ferguson's release, subject to strict bail conditions, would not undermine confidence in the administration of justice.
[16] In contrast, while acknowledging that a change of circumstances permits this court to reconsider the question of bail, Ms. DeVuono argues that the same concerns that caused the Justice of the Peace to detain Mr. Ferguson based on the secondary and tertiary grounds remain.
[17] Regarding the secondary ground, Ms. DeVuono emphasizes the pattern of offences for which Mr. Ferguson faces charges. In each case, the allegations are that he abused a woman with whom he had an intimate relationship. She argues that this betrays a troubling pattern of behaviour that raises serious public safety concerns.
[18] Ms. DeVuono argues that Mr. Ferguson is not a candidate for release. She points to his apparent non-compliance with the bail order in place relating to the charges involving Ms. McDonald. Under that order, he was supposed to live with his surety. Despite this, police discovered that he was routinely staying at hotels with Ms. Dunn, in apparent contravention of his bail at that time.
[19] Ms. DeVuono argues that the Justice of the Peace, who had the benefit of hearing from the proposed sureties, had good reason to doubt their ability to supervise and control Mr. Ferguson. As a result, releasing him on bail, subject to their supervision, would not adequately address the public safety concerns that his presence in the community would present.
[20] Further, concerning the tertiary ground, Ms. DeVuono argues that the Crown has a strong case. She notes that the police have collected evidence that serves to corroborate the complainant's account of her relationship with Mr. Ferguson. For example:
- Escort ads posted online, which confirm she worked in the sex trade in the locations she described in her statement to police.
- Hotel and Airbnb records, which corroborate that the complainant and accused stayed in the places she described.
- Hospital records, which confirm her attendance for medical treatment, consistent with her account of events.
- The complainant's D.N.A. on a lamp recovered from an Airbnb, confirming the complainant's account that she and the accused stayed at that location, and that he sexually assaulted her with that item.
- Photographs that were taken by the complainant, documenting injuries she claims the accused caused when he assaulted her.
- Finally, evidence that when arrested, the accused had the complainant's cellphone and identification in his possession, also consistent with her account that the accused took these items from her.
[21] Ms. DeVuono argues that in these circumstances, despite the COVID-19 pandemic, Mr. Ferguson's release on bail, even subject to strict terms, would undermine public confidence in the administration of justice.
[22] In my view, the allegations Mr. Ferguson faces are extraordinarily serious. That said, it would appear that the Crown's case is far from overwhelming. Ultimately, this is a case that will turn on the credibility of the complainant and the accused.
[23] In that regard, I note that the accused provided the police with an exculpatory statement following his arrest. In that statement, the accused denied exploiting the complainant in the sex trade and offered an innocent explanation for why he had her phone and identification in his possession (relating to grabbing these items when they had to check out of an Airbnb hurriedly).
[24] Further, these allegations surfaced after the arrest of the accused on November 2, 2019, when police attended the Airport Hilton in Mississauga. The complainant reported to police that the accused put her in a "headlock" in the hotel lobby, resulting in staff calling police. It would appear, however, that surveillance video from the hotel only shows the complainant and accused arguing, it does not capture any assault. Nor did any of the hotel employees interviewed witness an assault. Finally, the police officer who dealt with the complainant did not note signs of any apparent injuries.
[25] The ads undoubtedly demonstrate that the complainant was working in the sex trade in the locations she described. However, the critical question of whether or not she did so at the accused's direction or under his control does not appear to be corroborated, at least at the moment, by text messages or other digital evidence. (Apparently, the cellphones of both the accused and the complainant are still undergoing forensic analysis. The results are not yet available.)
[26] Further, the hospital records corroborate aspects of the complainant's account. They confirm that the accused attended hospital, a day before the complainant, for treatment of his injured hand (the complainant says he injured his hand beating her). The records also confirm that she went to the hospital the next day, on her account, because the accused resisted her efforts to seek medical treatment.
[27] The complainant told police that she reported to hospital staff that she sustained her injuries in a car accident. She described her injuries to police as including a concussion, a broken jaw, and lacerations on her head and face requiring stitches. The Crown has the hospital records, but despite the passage of five months, has still not received a signed medical release from the complainant.
[28] Nevertheless, Ms. DeVuono confirmed the records exist and document the complainant attending hospital the day after the accused, which corroborates the chronology of events provided by the complainant in her police statement.
[29] As an officer of the court, Ms. DeVuono shared, despite not yet having an authorization from the complainant to release her medical records, that the records do not reflect that the complainant suffered a broken jaw as she reported to the police.
[30] Of course, it is not my function to try this matter. I mention the evidence, at this point, to explain my conclusion that there would appear to be triable issues in this case. This would seem to be a case that will ultimately turn on questions of credibility.
[31] This is not a case where the apparent strength of the evidence and the seriousness of the allegations give rise to public safety concerns that could not be effectively addressed through the use of strict terms of release. The accused does not have a criminal record. Importantly, although he has faced charges in the past, he has never been convicted of breaching a bail order.
[32] Ultimately, I am satisfied that with properly crafted terms of release, Mr. Ferguson’s detention is not necessary for the protection or safety of the public. In short, if subject to strict conditions, Mr. Ferguson does not pose a substantial likelihood of committing an offence or interfering with the administration of justice if released on bail: R. v. Morales, [1992] 3 S.C.R. 711, at pp. 736-737. The conditions of release can adequately address the Crown's concerns that if granted bail Mr. Ferguson could victimize other women or contact the complainant.
[33] I turn next to the tertiary ground for detention. In this case, as mentioned, the charges are gravely serious, and if convicted, the accused undoubtedly will face a very lengthy penitentiary sentence. However, the other factors enumerated in s. 515(10)(c) are not engaged. Further, in assessing whether the accused's detention is necessary to maintain confidence in the administration of justice, the court must consider all of the circumstances: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 69, 87. That includes the ongoing pandemic: see R. v. J.S., 2020 ONSC 1710.
[34] Ultimately, the accused does not have a criminal record. Mr. Ferguson has faced charges in the past. Despite this, he does not have a conviction for breaching a bail order. In all the circumstances, despite the serious charges and potential for a lengthy penitentiary sentence, I am satisfied that Mr. Ferguson’s release on bail would not cause reasonable members of the public to lose confidence in the administration of justice. Especially remembering that the terms of release will include a requirement that he remain at his surety's residence and the policing of that condition through the use of a G.P.S. ankle monitor.
[35] In fact, given the current pandemic, I am of the view that a reasonable member of the community would lose confidence in the administration of justice if an accused in Mr. Ferguson's position were not granted bail at this time.
[36] Accordingly, this court orders Mr. Ferguson's release on entering into a recognizance, in the amount of $50,000.00, no deposit, with three named sureties, each pledging the following amounts:
- Carol Stevens - $48,000 (no deposit)
- Briana Ferguson - $1,000 (no deposit)
- Marlene Ferguson - $1,000 (no deposit)
And, subject to the following conditions:
- You are to reside with your surety, Carol Stevens, at 1057 Windsor Hill Boulevard, Mississauga, Ontario.
- You are to abide by the rules of the home, established by Carol Stevens and your other sureties, and to take direction from each of them.
- You are to be subject to G.P.S. ankle monitoring by Recovery Science Corporation (“R.S.C.”) which shall include: i. Entering R.S.C.'s Participant Agreement and complying with its terms; ii. Wearing a G.P.S. ankle bracelet at all times; iii. Permitting R.S.C. to install supplementary equipment and to inspect, replace, and maintain equipment as it deems necessary; iv. Complying with the R.S.C. leave notification and charging requirements; and v. Cooperating fully with R.S.C. staff.
- Immediately upon your release, you shall go directly to Carol Steven’s residence, at 1057 Windsor Hill Boulevard, Mississauga, Ontario, and remain there until the R.S.C. monitoring unit is installed at that address and the transmitting unit is affixed to your ankle. Thereafter, the following additional terms shall be applicable.
- You are to provide notice to R.S.C. within 3 hours of any termination or variation in the terms of your release. Notwithstanding any order terminating or varying these terms, you shall continue to abide by the terms relating to R.S.C.'s G.P.S. monitoring until R.S.C. confirms it has received notice of the termination or variation directly from the Crown, the police, or court staff.
- You are to remain inside Carol Steven's residence, at 1057 Windsor Hill Boulevard, Mississauga, or on the property of her residence, at all times, except: i. If you are in the direct and continuous presence of one of your named sureties; ii. In the case of a personal medical emergency, in order to travel directly to, while at, or returning from hospital; iii. To travel directly to court for scheduled court appearances, while at court for scheduled court appearances, and while travelling directly home after scheduled court appearances; and iv. To travel directly to scheduled meetings with your lawyer at his office, while at his office, and while returning from your lawyer's office.
- Should the police attend at Carol Steven's residence to perform a compliance check, you shall present yourself at the front door of that residence without delay.
- You are not to have any contact or to communicate in any way, directly or indirectly, by any physical, electronic, or other means, with J.D., except for any incidental contact while at court for scheduled court appearances.
- You are not to possess a cellular telephone, computer, tablet, or any other communications device capable of accessing the internet. However, that prohibition does not apply to a television attached to the internet to stream online entertainment.
- You are not to possess any weapons as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted device, ammunition or explosive substance, or anything designed to be used or intended for use to cause death or injury or to threaten to intimidate any person).
- You are not to apply for any authorization, licence, or registration certificate for any weapon as defined by the Criminal Code.
- If you have a passport, you are to surrender it to the Peel Regional Police within 24 hours of your release from custody, and/or you are not to apply for a passport.
- You are to remain in the Province of Ontario.
- You are not to attend at any hotel, motel, Airbnb, or similar short-stay accommodation, or any adult entertainment establishments.