R. v. Adam Dabrowski, 2020 ONSC 2382

COURT FILE NO.: 19/07BR DATE: 2020/04/22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Adam Dabrowski Applicant/Accused

COUNSEL: V. Decker, for the Crown C. Demelo, for the Applicant/Accused

HEARD: April 17, 2020 via audio-conference Mitchell J. (orally)

RESTRICTION ON PUBLICATION

This decision is subject to an order under s. 520 of the Criminal Code that bands publication of information arising during this hearing, including the reasons given, until such time as the accused is discharged or otherwise dealt with, or if ordered to trial, until the trial has ended. Wilful failure to comply with this order may constitute an offence punishable on summary conviction.

Reasons for Decision – Bail Review

Overview

[1] The applicant/accused, Adam Dabrowski brings this application pursuant to s. 520(1) of the Criminal Code of Canada (the “Code”) seeking a review of his continued detention.

[2] The applicant’s continued detention pursuant to the initial detention Order of Justice of the Peace Chantral Bertrand made February 11, 2019 was recently reviewed by The Honourable Madam Justice Gorman. By endorsement made January 22, 2020, the applicant’s request for bail was denied and his application dismissed.

[3] The applicant renews his request to have the detention order vacated pursuant to s. 520 of the Code relying on material changes in his circumstances, namely:

(a) the global health crisis caused by the COVID-19 pandemic; and (b) the applicant’s sister, Patricyza Dabrowski, now presents herself as a residential surety.

[4] The Crown opposes this application.

[5] Participating on the audio conference was Crown Counsel, counsel for the applicant, the applicant and the proposed surety. All parties agreed the hearing could proceed via audio conference.

Background

[6] At the detention review hearing in January, the applicant argued a material change in his circumstances justifying his release pursuant to both ss. 520 and 525 of the Code as follows:

(a) that on January 17, 2020 he had resolved numerous outstanding charges including pleading guilty to six charges: distributing intimate image, carrying a concealed weapon, assault, uttering threats to cause death and two counts of breach of recognizance. At the same time, six counts were withdrawn by the Crown; and (b) he proposed GPS ankle monitoring through Recovery Science Corporation as his release plan.

[7] Two charges remain outstanding against the applicant. These are:

(a) One count of sexual assault contrary to s. 271 of the Code; and (b) One count of distributing intimate images contrary to s. 162.1 of the Code.

[8] These charges are presently scheduled for trial to commence September 29, 2020.

[9] The reviewing judge found that the applicant failed to meet his onus under s. 520 and that the applicant’s continued detention was justified on the primary, secondary and tertiary grounds. Gorman J. expressly found that:

(a) having admitted guilt to certain of his outstanding charges, the applicant lost the presumption of innocence such that the convictions do not constitute a material change in circumstances; (b) the addition of an ankle monitoring device in the absence of a surety was a lesser plan than considered by the Justice of the Peace and accordingly does not rise to the level of a material change of circumstance; and (c) an ankle monitoring device in the absence of a surety will do nothing to ensure compliance with conditions such as a restriction on the use of technology.

[10] Mr. Dabrowski is 29 years of age. He was charged with these offences in February 2018. At the time of his arrest, the applicant did not have a criminal record; however, was facing charges in Edmonton and Calgary. A portion of the Alberta charges remain outstanding. In addition, the applicant was the subject of a Canada-wide warrant. As already noted, the applicant now has a criminal record consisting of six convictions including two convictions for breach of recognizance.

[11] The applicant’s sister was approved as a surety on March 2, 2018 and the applicant was released subject to him residing with his sister on terms tantamount to house arrest. Following a search of the applicant’s computer and cell phone, further charges were laid against the applicant. At a bail hearing conducted on July 9, 2018 with respect to these new charges, the applicant’s sister was once again approved as his surety and she pledged $10,000. As a condition of his release, the applicant was required to reside with his sister at all times and was prohibited from possessing a cell phone or any device which could connect to the Internet.

[12] In September 2018, while his sister was hospitalized due to complications from a miscarriage, the applicant breached the terms of his recognizance. The applicant left his sister’s residence and took with him a cell phone. The applicant has been detained in custody since his arrest on September 25, 2018.

[13] At his bail hearing before Justice of the Peace Bertrand, the applicant proposed his mother as a residential surety, pledging $10,000. The Justice of the Peace found the applicant’s mother was not an appropriate surety and detained the applicant on the primary, secondary and tertiary grounds.

[14] Until now, the applicant had not elected to put forward his sister as a residential surety because of his breach of recognizance under her watch and her failure to report the applicant’s breach to police. Although the applicant’s sister was not proposed as a surety before Gorman J., the applicant proposed that he reside with either his mother or sister as part of his release plan.

Defence Position

[15] Ms. Demelo submits that Mr. Dabrowski should be granted a hearing de novo thereby allowing me to consider whether he has shown why his continued detention is no longer necessary on any of the primary, secondary or tertiary grounds listed in s. 515(10) of the Code.

Crown’s Position

[16] Ms. Decker urges me to dismiss the application on the basis there has been no material change in circumstances giving this court jurisdiction to consider the issue of Mr. Dabrowski’s release de novo. In the alternative, should the court find a material change in circumstances, Ms. Decker submits the applicant’s continued detention is necessary on the primary, secondary and tertiary grounds.

Analysis

The Law

[17] The leading case on the test for review under s. 520 of the Code is R. v. St-Cloud, a 2015 decision of the Supreme Court of Canada. The court emphasized that a review under s. 520 of the Code is not a de novo hearing. Rather, the reviewing judge can intervene only where there is a material change in circumstances, where an error in law has been made or, where the initial decision is clearly inappropriate.

[18] Pursuant to s. 520(7) of the Code, the accused bears the persuasive burden. As earlier noted, in his attempt to persuade me a review of the detention order is necessary, Mr. Dabrowski relies on a material change in his circumstances.

[19] To satisfy the court of a material change in circumstances, the applicant must satisfy the four Palmer criteria. They are:

(i) the evidence is new evidence or evidence that existed at the time of the prior bail hearing but was not tendered for reason that was legitimate and reasonable; (ii) the evidence is relevant; (iii) the evidence is credible and trustworthy within the circumstances of each case; and (iv) it must be reasonable to conclude that such evidence could have affected the analysis and balancing exercise of relevant circumstances resulting in that prior bail decision.

[20] If the new evidence meets the above four criteria, the reviewing judge is then permitted to repeat the analysis de novo under s. 515(10) as to whether release or detention is to be ordered.

[21] As was noted in R. v. White a finding that there is a material change of circumstance must be made after considering all the relevant evidence. The question is “whether the change in circumstances is relevantly material.”

Has there been a material change in circumstances in the amended release plan of the applicant whereby he proposes his sister as a residential surety?

[22] In January, the applicant proposed electronic ankle monitoring without a surety which release plan was rejected by the reviewing judge. Today, the applicant proposes one surety, his sister, but without electronic ankle monitoring.

[23] I noted the absence of electronic monitoring as part of the applicant’s amended release plan and enquired of applicant’s counsel whether the applicant was amenable to electronic ankle monitoring. I was advised that the applicant’s sister can no longer afford to fund the cost of monitoring as she had intended in January because she was recently laid off from her employment. Applicant’s counsel suggested I consider government-funded electronic monitoring now available to an accused seeking bail. I was not provided with evidence of the features of this program, the mechanics of the monitoring device and its availability to the applicant. Since this publicly-funded monitoring tool was not included as part of the applicant’s release plan contained in his affidavit, I am not in a position to consider it. As an aside, it is not the role of the court to fill in the gaps in an applicant’s release plan nor is it the court’s role to craft a release plan which addresses the court’s concerns.

[24] I find that the terms of the amended plan of release were all available to Mr. Dabrowski at the bail hearing in February 2019 and again at the bail review hearing in January. The applicant’s sister has always been available to act as a residential surety. The fact that under her watch the applicant breached the terms of his recognizance and she failed to report his breach to police for almost a week is part of the historical fabric of this case. Those facts cannot be changed and have not changed since the applicant’s initial detention in February 2019.

[25] The applicant suggests that his sister is now able to supervise him at her residence 24/7 because she is no longer employed and thus the change in her employment status constitutes a material change in circumstances making her a suitable residential surety. The difficulty with this position lies in the fact that the applicant’s sister has always worked from home and, therefore, has, in theory at least, always been available 24/7. In January, Patricyza testified she worked from home and was able to provide constant supervision of the applicant. In response to being asked about her ability to supervise the applicant, she testified: “So, yes, absolutely, like full supervision. My apartment is – it’s not like a two level so I always have kind of my eyes available to see him”.

[26] Counsel for the applicant explained that the applicant’s sister was not put forward as a proposed surety in January because she had failed in that role previously. However, after hearing Patricyza’s evidence which Ms. Demelo assessed as credible, forthright and providing justification for her prior failing as a surety, she made the following submission to the reviewing judge: “In a perfect plan, I would be submitting for your Honour’s consideration a surety. I recognize that. But I don’t think that this is a case where a surety is necessary.” The reviewing judge disagreed.

[27] After being denied bail on the strength only of electronic ankle monitoring, the applicant re-shuffled his deck of monitoring tools and now puts forward his sister as a residential surety. The difficulty with this approach is that it runs contrary to the authorities which stand for the proposition that “reshuffling the deck” does not constitute a material change in circumstances. I find the only change is a change in legal strategy, not a change in circumstances. Akin to the situation in R. v. Samuels, it was not the case that in January Patricyza was not available and willing to act as her brother’s surety. In fact, her evidence suggests she would have readily agreed to assume the role had the applicant opted to put her forward. However, he chose not to. Ultimately, that decision proved to be misguided as he came up short before the reviewing judge.

[28] I find that proposing his sister as a residential surety is not a material change in circumstances as it does not meet the first and fourth criteria of the Palmer test.

Has there been a material change in circumstances due to the COVID-19 pandemic?

[29] The applicant submits that the COVID-19 pandemic constitutes a material change in circumstances justifying a hearing de novo and his ultimate release. The Crown does not concede the issue.

[30] In support of his position, the applicant has filed and relies on the opinion evidence of Dr. Aaron Orkin contained in an affidavit sworn in support of an unrelated detention review hearing argued earlier this month. Crown counsel does not seek to cross-examine Dr. Orkin on his 92-page affidavit and acknowledges his affidavit evidence is trustworthy and credible.

[31] Dr. Orkin is an epidemiologist, physician and assistant professor in the Department of family and community medicine at the University of Toronto. Dr. Orkin is also the medical director of the St. Joseph’s Health Center COVID-19 assessment Centre. As I indicated after receiving submissions of counsel, I accept the qualifications of Dr. Orkin and find his opinion evidence credible and reliable.

[32] A thorough review of Dr. Orkin’s affidavit evidence was provided in the recent decision of Christie J. in R. v. Paramsothy. At paragraph 35 of that decision, the Court summarized the non-contentious aspects of Dr. Orkin’s evidence which I do not propose to review at length here. Dr. Orkin’s evidence was also reviewed extensively in the very recent decision of R. v. J.R. released April 20, 2020 in the context of a s. 525 detention review hearing.

[33] Facts surrounding COVID-19 which are not disputed by the Crown and of which I take judicial notice are as follows:

(a) COVID-19 is a novel coronavirus that was declared a global pandemic by the World Health Organization on March 11, 2020. (b) Since that time, every province and territory in Canada has declared a state of emergency in response to COVID-19 and Health Canada has declared that the risk of infection is high. (c) At this time, there is no known cure for COVID-19. (d) The coronavirus is highly contagious and is spread while coughing or sneezing or even talking to someone in close proximity. (e) The virus can be spread by touching contaminated surfaces and the virus can live on certain surfaces for several days. (f) The Canadian government and specifically the Ontario government have taken various measures to control the spread of the virus. One of the primary measures implemented is physical distancing which requires individuals to avoid congregating and when in the company of others to remain at least 2 m apart. (g) The purpose of physical distancing is to slow the spread of the virus in order to ensure that the healthcare system is not overwhelmed. This strategy is commonly referred to as “flattening the curve”.

[34] Dr. Orkin notes that there is no substitute for appropriate social distancing. Other interventions such as hand hygiene, facemasks, and screening for symptoms are all important but less effective.

[35] In his affidavit, Dr. Orkin states:

Preventing outbreaks in congregate living facilities is a top priority for a “flattening the curve” strategy for four reasons:

i. Outbreaks in tight spaces happen extremely quickly and are near impossible to control once they occur. ii. People living in congregate living facilities tend to have underlying comorbidities that make them more prone to serious adverse outcomes from COVID-19. iii. Outbreaks in such circumstances can overwhelm healthcare systems, meaning that scarce resources are consumed by local congregate living outbreaks before the epidemic takes hold in the general population. iv. Outbreaks in such congregate living facilities serve as tinder for the fire in more generalized outbreaks. Unlike cruise ships, people in congregate living settings, including staff who work there, may transfer disease into the general population.

[36] Dr. Orkin quite rightly recognizes that it is not his role rather it is the role of the court to balance the competing interests of the detained accused wanting to protect himself from contracting COVID-19 and the community’s interest in wanting to protect itself from the safety threat presented by the detained accused if released. Dr. Orkin states:

I do not purport to weigh or balance the risks of COVID-19 on an individual or population level against the public safety issues associated with the release of individual inmates from custody. I realize fully that some inmates are violent, some are dangerous, and therefore some cannot be safely released into the community.

[37] The Crown submits that steps have been taken to reduce the inmate populations across Ontario by 24% and have employed other safety measures to reduce the spread of the coronavirus within Ontario’s jails such that the risk to inmates and correctional workers of contracting the virus and the potential burden on the healthcare system have been greatly reduced.

[38] To support the Crown’s position, counsel relies on an Information Note Prepared by Institutional Services Response to COVID-19 dated April 1, 2020. This document appears to have been prepared for and on behalf of the Ontario Government. Applicant’s counsel argued this document is unreliable as its author is unknown and the source of the information contained in the document cannot be verified. These points are indeed valid ones. However, my greater concern is that the information is no longer current and in this rapidly evolving COVID-19 pandemic environment is dated. I suspect the data concerning the number tested and number of confirmed cases within Ontario’s inmate population has materially changed since this Information Note was published. Accordingly, I ascribe little weight to this data.

[39] I have considered the quickly growing number of cases decided since COVID-19 was declared a pandemic. Lines of cases have emerged.

[40] The applicant relies on a line of cases which has found that COVID-19, on its own, constitutes a material change in circumstances justifying a fresh hearing and consideration of the factors under s. 515(10) of the Code. These cases include: R. v. J.S., R. v. Cain, R. v. Fraser, R. v. J.R., R. v. Nelson, and R. v. Paramsothy to name a few.

[41] Another line of cases, albeit a shorter one, has held that COVID-19 does not constitute, on its own, a material change in circumstances. These cases include: R. v. Sappleton and R. v. Jeyanthan. Yet another line of cases has found that the combination of a new release plan and the COVID-19 pandemic constitutes a material change in circumstances.

[42] While persuasive, I am not bound by these decisions.

[43] I accept the evidence of Dr. Orkin with respect to the heightened risk inmates face in not only personally contracting the virus but also in spreading the virus within the inmate population and the community, generally. I further accept that the extent of physical distancing needed to reduce the spread of the virus cannot be achieved in an institutional setting. The physical proximity of inmates both in cells and in common areas within jails makes physical distancing near impossible.

[44] Accordingly, I find that the COVID-19 pandemic is a material change in circumstances triggering a de novo hearing and consideration of the s. 515(10) factors. Notwithstanding this finding, I adopt the statement of Goodman J. in R. v. T.K. that the COVID-19 pandemic is not intended to be used as a “get out of jail free” card. Rather, it is merely one of the relevant factors to be considered with respect to the tertiary ground.

[45] I will now consider the evidence and in particular the proposed release plan which envisions the applicant’s sister acting as residential surety and the applicant residing under house arrest with his sister, her partner and infant daughter in a one-bedroom apartment in an apartment complex. It is proposed that as a condition of his release the applicant be prohibited from being in possession of a cellphone or any device able to connect to the Internet.

[46] The proposed release plan must address the primary, secondary and tertiary ground concerns identified by the Justice of the Peace and the reviewing judge.

[47] I will now consider the evidence and the proposed plan of release in the context of the primary, secondary and tertiary grounds:

(a) With respect to the primary grounds, the applicant was the subject of a Canada-wide warrant with respect to charges he was facing in Calgary making him a flight risk. The proposed release plan does not address the primary ground concerns. (b) On the secondary ground, the applicant seized the opportunity to breach his bail conditions when his sister was hospitalized. While he says he left his sister’s home for compassionate reasons because he wanted to give her and her partner space to grieve, the applicant could not reconcile the obvious self-interest he demonstrated in taking a cell-phone and placing at risk of forfeit the assets pledged by his sister valued at $10,000. (c) Ms. DeMelo submits that the applicant is a changed man after having spent the past 16 months in jail. Aside from his word, there is no evidence before the court of any efforts to rehabilitate or address the issues which bring him before the court. It is unclear in what way the applicant has “changed”. I am also troubled by the fact the applicant’s credibility was called into question by evidence he gave in January. He testified that after leaving his sister’s residence, he observed his sister calling him on the cellphone in his possession however he did not answer her calls. His sister testified that at no time did she try to contact the applicant because she was unaware he had a cellphone in his possession. I have no confidence he will respect his sister and accept and abide by the rules of her home. (d) I accept that Patricyza is well-intentioned and has her brother’s best interests at heart and also that she fully understands her obligations as surety. With that said, I have no confidence that she will be able to keep any eye on the applicant at all times as she promises. Patricyza’s partner works in an essential business that takes him out of the home approximately 12 hours each day. She is a new mother. Her priority, as it should be, will be caring for her infant daughter, not supervising her brother. (e) The applicant’s sister says she is willing to pledge the same $10,000 in assets she pledged in July 2018 in support of her role as surety. She acknowledged that those funds may already be forfeit and the subject of a future estreatment hearing due to her failure to report the applicant’s September 2018 breach to police. From the evidence before me, it appears she is not prepared to pledge any portion of the $21,000 she holds in RRSP’s. While Patricyza says her partner “absolutely” supports her putting herself forward as her brother’s surety, he has not put himself forward as a surety nor agreed to pledge any assets to support his brother-in-law’s release. From a security standpoint, the pledge of assets does little to enhance the applicant’s compliance with any conditions of his release. (f) As noted by the reviewing judge, ankle monitoring cannot address the internet access prohibition. I am concerned that the applicant’s sister will be equally ill-equipped to ensure compliance. The applicant’s sister has the internet in her residence. The applicant’s sister owns a computer and perhaps other devices such as a smart TV with internet connection capability. The applicant does not have the benefit of any green space in which to spend time. The one-bedroom apartment will be home to 3 adults and an infant. Aside from assisting with childcare, I have no confidence the applicant will not look for opportunities to access social media platforms such as Tinder and Snapchat. (g) With respect to the tertiary ground, the risks to the applicant arising from the COVID-19 pandemic must be balanced against the other tertiary factors in assessing whether detention is necessary to maintain confidence in the administration of justice. (h) The applicant’s alleged offences are serious and involve violence and it is likely that if convicted he will receive a term of imprisonment exceeding his pre-trial time in custody. This matter is not in its early stages. The applicant has a trial date set and it is speculative to suggest that it will be adjourned due to the COVID-19 pandemic. The Crown’s case consists in part of real evidence including images and text messages, and is not simply a “he said/she said” case as suggested by the applicant. (i) Against this backdrop, I consider the impact of the COVID-19 pandemic on the applicant as an inmate at EMDC. The applicant presents no evidence demonstrating he has a health condition which makes him particularly vulnerable or predisposed to serious illness or risk of death. In fact, his age alone suggests he is in the group least likely to suffer any serious risks presented by the virus should he contract COVID-19; (j) The applicant presents no evidence of his own particular living conditions at EMDC, or his own difficulties engaging in physical distancing, or the number of confirmed cases of COVID-19 at EMDC, if any which might make him more susceptible to contract the virus. (k) Something more is needed beyond the general opinion of Dr. Orkin. I am supported in this view by the decision of the Ontario Court of Appeal in R. v. Kazman where, in granting bail pending appeal, the court took an individualized and nuanced approach to the issue. This is clear when the court states at paras.16 and17: 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, placed 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. (l) I accept that being incarcerated is not conducive to social distancing and puts the applicant at a heightened risk of contracting the virus. However, the applicant is young and there is no evidence to suggest he is particularly susceptible to contracting the virus or developing serious complications should he contract the virus.

[48] After considering the evidence (or lack thereof as the case may be), I find the proposed plan of release does not address the primary, secondary and tertiary ground concerns and therefore the applicant has not satisfied the burden under s. 515(10) justifying his release.

Disposition

[49] Application dismissed.

“Justice A.K. Mitchell” JUSTICE A. K. MITCHELL DATE: April 22, 2020