COURT FILE NO.: CR-20-00000012-00BR
DATE: 2020-05-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
E. Dawn McQuiag, Counsel for the Crown
- and -
R.B.
P. Holmes Skinner and R. Johannesson, Counsel for R.B.
Accused
HEARD: April 15, 22 and 30, 2020
VARPIO J.
REASONS ON DETENTION REVIEW
[1] R.B. brings this detention review having been detained on January 24, 2020 on charges related to the attempted purchase of a firearm while prohibited from so doing. Although the Notice of Application did not specify the section under which R.B. is proceeding, it was clear from the argument that this is an application brought pursuant to s.525 of the Criminal Code of Canada.
[2] For the following reasons, I hereby deny R.B.’s application. R.B. shall remain in custody.
RB’S ANTECEDENTS
[3] Other than the charges from which the firearms prohibition flows, R.B. has practically no criminal record. R.B. was found guilty of several offences by Nadeau J. on April 6, 2018. R.B. was sentenced to 42 months of custody. The charges included sexual assault, assault cause bodily harm, forcible confinement, possession of a loaded handgun, and breaching a non-communication order wherein R.B. asked Mr. Gerald Laroque to apologize to R.B.’s ex-wife after his arrest.
[4] The facts as found by Nadeau J. are particularly apposite to this hearing. Nadeau J. found that R.B. had engaged in a pattern of abuse whereby he controlled his ex-wife for a period of approximately 40 years. R.B. was obsessed with his ex-wife’s alleged infidelity from 40 years prior. In one instance, R.B. inspected his ex-wife’s vaginal area to ensure that she was not actively engaging in infidelity. R.B. abused substances. R.B. also engaged in physical abuse and, as a former bodybuilder, is much larger than his former spouse.
[5] At his trial, a number of exhibits were tendered before Nadeau J. and reference was made to other physical evidence including menacing letters alleging infidelity, photographs of the complainant’s face pasted over naked women in pornographic poses, a “kill kit” (machete, knives, blow torch, zip ties, hack saw, etc.), a loaded prohibited revolver, a loaded prohibited sawed-off shotgun and a calendar that appeared to have reference to an extermination date (December 31, 2016). Nadeau J. rejected R.B. ’s testimony that the word “exterminate” on the calendar had an innocent explanation. By extension, therefore, the word exterminate appears to have been written in relation to the complainant.
[6] After his incarceration but prior to his arrest on current charges, R.B. completed the PARS program. He is, however, flagged as a high-risk offender and is subject to the Intensive Supervision Probation Program which is reserved for only five percent of offenders.
THE CHARGE BEFORE THE COURT
[7] R.B.’s current charges flow from his alleged attempt to purchase a firearm. The allegations are that, some seven months after being released from custody, R.B. attempted to purchase a revolver from an elderly man who was aware of R.B.’s situation as it pertained to his former spouse. Of note, it is alleged that R.B. attempted to purchase said revolver prior to attending family law mediation. Upon arrest, R.B. allegedly indicated that he did not know that he was prohibited from purchasing firearms.
[8] The elderly man told his wife about the incident at the time. When speaking with police, the elderly man indicated that R.B. attempted to purchase a revolver while his wife indicated that it was a rifle.
[9] On January 24, 2020, R.B. was detained by Justice of the Peace Kitely after a prolonged bail hearing. Considerable evidence was called at the bail hearing regarding R.B.’s previous conviction and bail plan.
R.B.’S SITUATION
[10] R.B. is 67 years old and is of indigenous heritage. It is accepted by all that R.B. has a heart condition such that he had a medical procedure in 2018. R.B. filed a supplementary affidavit wherein he indicates that he has been experiencing severe chest pains over the past month and has had to go to the hospital for a stress test. He deposed that his prescription for nitroglycerin has increased in the past few weeks. R.B. deposed that he has not seen the results of the stress test and that he is concerned that he may have a blood clot.
[11] An affidavit was filed from Dr. Aaron Orkin, an epidemiologist at the University of Toronto, on consent. Dr. Orkin’s affidavit indicates that, from a medical perspective, it is best for all inmates to be released such that they do not become infected with COVID-19 insofar as COVID-19 can easily be transmitted in the captive population.
[12] Further, it is also accepted by all parties that, given R.B.’s medical condition, he is at a heightened risk of serious personal harm if he contracts COVID-19 since that malady has heightened mortality rates among both the elderly population and among those with certain underlying conditions, including heart ailments. R.B. fits into both these categories.
[13] Since being released from prison, R.B. had a fist fight this past summer but no charges were laid as against either R.B. or the other combatant.
R.B.’S PLAN
[14] R.B. called two sureties. The first surety is Mr. Gerald Larocque who is a friend of both R.B. and R.B.’s ex-wife. Mr. Larocque was the individual who communicated with R.B.’s ex-wife in the fashion that gave rise to the aforementioned breach of recognizance conviction.
[15] Mr. Larocque testified at the initial bail hearing as well as at this detention review. Mr. Larocque lives five minutes away from R.B. R.B. cannot live with Mr. Larocque as the latter does not have room in his house given the renovations taking place at his residence. Mr. Larocque indicated to the court that he would check up on R.B. regularly, and at random times. Mr. Larocque testified that his sleep patterns are such that he rarely sleeps at night and could thus be available to check in on the accused at night. Mr. Larocque did indicate that his pastimes include going into the wilderness to hunt and or hike for more than trifling periods of time. At the initial bail hearing, Mr. Larocque testified that he could not act as residential surety for R.B. because he had to look after his autistic daughter with some regularity. He testified at the detention review that he no longer has that responsibility as a result of the COVID-19 pandemic.
[16] At the bail hearing, the presiding justice of the peace found that
[t]he Crown has issues with the surety in regard to credibility. And I have to agree with the Crown in this regard, listening to the evidence that came before the court today. At some point it was disjointed and, I am not going to say self-serving, but he was very positive in regard to the defendant having spent that amount of time in jail and that he would look after things, and he has contacted both and over the past. He [Mr. Larocque] has his plate full with his daughter and he does not have time, as far as this court is concerned, to ensure the court that nothing would happen with [R.B. ] and his ex-spouse.
[17] Ms. Ghislaine Larocque also testified at the detention review. She indicated that she is legally blind and cannot drive. She cannot keep physical tabs on R.B. but can and will call him regularly to ensure that R.B. does not hurt the complainant. She also testified that the accused does not move around as well as he once did as a result of his surgery. Mrs. Larocque indicated that she was previously close to R.B.’s ex-wife but has not remained close as a result of Ms. Larocque trying to bail out R.B.
[18] R.B. also wishes to avail himself of an electronic monitoring program. The essence of the program is that R.B. will have a bracelet attached to him that will sound an alarm if he leaves a certain pre-arranged location. In this case, the alarm would go off if R.B. leaves his premises. The alarm would sound on any smart phone equipped to take the alarm. As per counsel, this would include the sureties, officers from the Mattawa OPP detachment and the complainant, if she so chose. It was noted in submissions that the complainant lives close to the surety’s R.B.’s residence, only about 2.5 kilometers.
[19] The plan would be for the accused to live at home and to park his vehicles at the sureties’ residence. The accused would be subjected to electronic monitoring and would not be allowed to leave his property.
[20] The electronic monitoring described in the materials filed makes clear that, in normal circumstances, if the accused were to leave the property, an alarm would be sounded in less than 60 minutes. This time gap allows the technology provider the opportunity to ensure that the signaled departure from the premises is not a “glitch”. In the circumstances, I have been assured by defence counsel that an alarm could be sent out much faster than 60 minutes.[^1]
CONDITIONS AT THE NORTH BAY JAIL
[21] Sgt. Chris Samson testified at the detention review. He is the officer in command of the North Bay detention facility. He described the steps being taken by the North Bay jail to limit the possible spread of COVID-19 within the institution. With respect to new inmates, anyone coming into the facility as an inmate is held in “segregation-like conditions” for 14 days to ensure that they are not carrying the virus. This means that the new inmates are isolated from others to ensure that they do not carry COVID-19 into custody.
[22] Once the 14-day period of “segregation-like conditions” has passed, the new inmates are placed in an area with other inmates. Current conditions in the jail are different than they have previously been in so far as inmates are kept further apart in compliance with social distancing. There are currently empty cells that inmates can request in order to self-isolate. R.B. has not requested to be put into such a cell despite his physical condition.
[23] The jail is cleaned rigorously on a regular basis by cleaning staff. Specifically, Sgt. Samson testified that the jail has hired a cleaning service to clean every day and that “hot” zones are cleaned regularly by staff throughout the day. Staff use hand sanitizer multiple times an hour. Inmates clean the toilets while being supervised by staff. Inmates who wish to have a cleaner area are provided with cleaning products and are further supervised by staff.
[24] There are 75 staff who work at the jail. Prior to going to work, staff must complete extensive screening regarding possible COVID-19 symptoms. If staff do not pass the screening, they are told to stay home. Staff will soon be required to take their temperatures prior to coming into work.
[25] Sgt. Samson agreed that the concern is that staff may be asymptomatic or pre-symptomatic. He also testified that the availability of PPE is a concern at the North Bay jail, just as it is all around the world.
[26] Currently, there are no active cases of COVID-19 at the North Bay Jail.
NEW CHARGES
[27] I was advised that police were investigating R.B. for further charges that occurred during the instant detention review. S. 515 of the Criminal Code of Canada states that only a “justice” may entertain a bail hearing, and s. 2 of the Code defines a justice as “a justice of the peace or a provincial court judge”. Accordingly, I may not hear the bail hearing on the new charges but the allegations may inform my decision in the instant application.
[28] The synopsis of the new allegations as against R.B. states as follows:
Corrections Officer Hampel provided a statement in which he explained that on Monday the 20th of April 2020 he was working at the jail located at 2550 Trout Lake Road North Bay Ontario. He had been escorting the nurse passing out medications when he was speaking with a number of inmates about what was on the news concerning the mass shooting on the east coast of Canada when inmate [R.B.] said "it was obvious the RCMP had done something to him", referring to the mass shooter being justified in killing an officer. Further [R.B.] stood up, staring at officer Hampel and said "remember I said that". Corrections Officer Hampel knows [R.B.] has a severe disdain for police and feared that [R.B.] will act on his threats to police upon release from custody. Nurse Casandra Hajek provided a statement in which she indicated that she had been accompanied by corrections officer Hampel for the purpose of dispensing medications and that she heard [R.B.] state "if I ever see those cops again I'll kill them". Nurse Hajek had not heard the conversations before or after [R.B.] made this statement as she was occupied with her duties.
ANALYSIS
[29] R.B. brings this application under s.525 of the Criminal Code of Canada insofar as he has been in custody for more than 90 days. The hearing is governed by the law as set out in R. v. Myers 2019 SCC 18. Specifically, I am to consider whether R.B.’s detention remains necessary in the circumstances considering, inter alia, new evidence, a change in the circumstances of R.B., the impact of the passage of time and any unreasonable delay and the rationale offered for the original detention order.
COVID and R.B.
[30] R.B. submits that the COVID-19 epidemic has had a real and pronounced effect on him. In R. v. Find 2001 SCC 32, the Supreme Court of Canada laid out the test for taking judicial notice of a given fact. Facts may be noticed judicially where they are:
a. So notorious or generally accepted as not to be the subject of debate among reasonable persons; or b. Capable of immediate and accurate demonstration by resort to readily acceptable sources of indisputable accuracy.
[31] In the case before me, I do not have any statistical analysis to demonstrate the precise mortality rate for people in R.B.’s health condition who contract COVID-19, as opposed to the mortality rate for the population at large. As noted in para. 46 of R. v. Baidman 2020 ONSC 2349, an over-flexible approach to the use of judicial notice can lead to incorrect conclusions.
[32] Nonetheless, it is clear from the global consensus and the imposition of social distancing that the following can be judicially noted:
a. COVID-19 is spread by person-to-person contact either directly or via indirect transmission; b. Individuals may be able to spread the virus while they are either pre-symptomatic or are asymptomatic; c. The virus can be lethal; d. The rates of mortality appear to be higher among the aged as well as among those who have certain underlying conditions such as respiratory ailments. The mortality rate among those who do not fall within these categories is not nearly as high; and e. Social distancing has been utilized to lessen the rate of infection in the population and, as such, the failure to adhere to social distancing will generally increase the rate of infection.
[33] Given the foregoing, this is not a case where R.B. is a young man without underlying conditions whose health risks from possible COVID-19 infection are at the lower end of the spectrum. Rather, I am satisfied that R.B. faces a heightened risk of serious harm were he to contract the virus.
The Jail
[34] I am also satisfied by Sgt. Samson’s evidence that the North Bay jail has been working diligently to mitigate the risk associated with COVID-19. His evidence was impressive. Sgt. Samson listed in considerable detail the manner in which jail employees were screened, the manner in which inmates were segregated and the cleaning protocols that were put in place. Sgt. Samson made clear to me that the North Bay jail is doing everything reasonably within its power to ensure that the COVID-19 virus remains out of the facility.
[35] I also accept the evidence of Sgt. Samson that R.B. has not availed himself of the opportunity to have a single cell so as to lessen the risk of contracting COVID-19. Accordingly, I find that R.B. does not take the threat of COVID-19 as seriously as perhaps he ought to given his condition.
The Accused
[36] With respect to R.B.’s propensities, I accept Nadeau J.’s tacit finding that R.B. posed an immense risk to the complainant’s safety. Counsel for R.B. submitted that this finding was several years old and that I ought to find that R.B.’s animus has changed in the interim. An examination of the evidence before me suggests the contrary.
[37] First, the nature of charges accumulated in the months since R.B.’s release from prison suggest that R.B.’s level of danger remains high. I make this statement while recognizing that the accused faces unproven allegations. Equally, I am aware that the case involving the purchase of the firearm appears relies upon the evidence of two elderly persons who gave the police somewhat different evidence. This, of course, is an issue that will be probed at trial however I note that R.B.’s statement upon arrest that he believed he could purchase firearms appears to suggest that he, in fact, attempted so to do.
[38] As for the most recent charge, R.B.’s alleged statements regarding his negative animus towards police informs his propensity for violence. These statements appear to illustrate that R.B. is someone who has a predilection towards hurting others in a serious fashion. Such a consideration is buttressed by the fact that R.B. is alleged to have been involved in a fist fight this past summer, even though no charges were laid.
[39] Accordingly, when I look at:
a. Nadeau J.’s findings; b. the evidence of the elderly couple; c. the evidence of the jail staff; d. the evidence that the accused was in a fist fight this summer; and e. the accused’s criminal record,
and despite the fact that R.B. remains innocent until proven guilty, the totality of the evidence satisfies me that there is a substantial likelihood that R.B. has violent tendencies upon which he is inclined to act. I am also satisfied that there is a substantial likelihood that those tendencies are manifested by an animus towards his ex-wife.
[40] With respect to the weight that I can afford R.B.’s evidence to the contrary, I note the following. First, at para 12 of R.B.’s initial affidavit, he indicated that “[t]he conditions in the North Bay District Jail do not protect us from potential spread of COVID-19. We are separated by bars, not doors. Washing our hands properly is virtually impossible”.
[41] This evidence stands in stark contrast to the evidence given by Sgt. Samson, which evidence I accept. Again, I note that R.B. did not avail himself of a single cell despite being given that opportunity.
[42] At para. 17 of that same affidavit, R.B. stated that “[p]rior to my arrest I was residing at my home at 240 8th Street, Mattawa, Ontario and complying with my probation conditions without incident”. While some interpretations of this paragraph may suggest that R.B. was technically correct in his statement, I note that he failed to describe the fist fight. He therefore appears to have been less than forthright in his evidence.
[43] R.B.’s affidavit raised other issues. Specifically, R.B. suggested that the Crown and/or jail facility failed to produce disclosure in a timely manner which led to R.B. being unable to have a trial prior to the COVID pandemic. I will make no finding about the disclosure issue since it is not relevant to the determination before me. Counsel’s suggestion that R.B. could have had a trial prior to the pandemic is both entirely speculative and, frankly, seemingly unlikely given the short turnaround.
[44] The Crown also took issue with the notion raised in the application materials that the sureties could see R.B.’s house from their home when it is apparent that, given the distances involved, this was not necessarily the case. Counsel for R.B. indicated that the inability to review the materials with deponents given social distancing may account for this specific issue and, since counsel is an officer of the court, I am willing to accept that submission as fact. This submission does not, however, address the other concerns raised regarding R.B.’s evidence.
[45] Accordingly, I find that R.B. is not being entirely forthright with the court with respect to key elements of his testimony as it relates to the conditions in the jail as well as his ability to live “without incident”. R.B.’s credibility is therefore such that I do not afford his evidence much weight nor do I believe that R.B. is genuine in his representations through counsel that he will not pose a threat to the complainant if released. The accused remains a threat to the complainant and I am satisfied that there is a substantial likelihood that he will attempt to hurt her if released.
The Plan
[46] The plan, even accepting counsel’s submissions with regard to the speed with which an alarm could be sent, is weak. The sureties did not present as people with a strong hold over the accused. This is not the kind of relationship where the sureties have bound the conscience of the accused in such a fashion that I am satisfied that he will listen to their directions. Instead, the sureties presented as well-meaning but without sufficient gravitas to ensure that the accused will abide by the rules.
[47] Even if I were satisfied that the sureties held sway over the accused, the plan simply leaves too much physical distance as between the accused and his sureties to provide adequate protection to the complainant. Put another way, even with properly functioning electronic monitoring, it would take very little for the accused to go to his ex-wife’s house and do her serious harm if he chose so to do. The short distance between the accused’s house and his ex-wife’s house means that the accused could easily attend the complainant’s house before anyone had a meaningful chance to respond.[^2] The accused would therefore have ample opportunity to do serious harm to the complainant and the sureties would have little ability to do anything about it.
The Balance
[48] This is a difficult case to determine given the risks associated with both granting and dismissing the application. Were COVID-19 to break out in the North Bay Jail, it is clear that the accused is in danger of serious harm. This is a factor that the court must consider when determining whether or not the accused’s detention remains necessary as per s. 525 of the Criminal Code of Canada: R. v. Omitran, 2020 ONCA 261.
[49] It must also be noted, however, that the accused does not take the COVID threat seriously enough to protect himself in custody.
[50] The pandemic has halted court activity s
[51] uch that no trial dates are currently being set. This could mean that a trial in this case will not happen for a meaningful length of time.
[52] Equally, I also give considerable weight to the Gladue components of the bail regime, including the need to ensure that indigenous peoples are not over-represented within custodial facilities: R. v. Robinson (2009), 2009 ONCA 205, 95 O.R. (3d) 309 (Ont.C.A.).
[53] Despite the foregoing, however, the danger to the complainant is so great that, if released, I am satisfied that there is a substantial likelihood that the accused will cause serious harm to the complainant and that his detention remains necessary on secondary grounds: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711. The accused’s clear intention based upon the preponderance of evidence is that he is a man with serious violent tendencies who has fixated upon his ex-wife for a long time. He is a man who is highly likely to do harm to her if left to his own devices.
[54] Thus, even when I consider
a. the accused’s need to remain free of the COVID virus; b. the fact that trial dates are not being set and the result that the accused may be incarcerated for a lengthy period before said trial date; and c. the weight given to the accused’s indigenous heritage and the disproportionate impact that incarceration could have upon him as a result,
the accused’s detention remains necessary because the weakness of the plan coupled with the accused’s clear ideations are such that there is a substantial likelihood that the accused would cause serious harm to the complainant if released from custody.
[55] With respect to the tertiary grounds, I am not inclined to detain the accused in so far as the strength of the Crown’s case, although far from weak, does not rise to the level necessary to ground detention under s. 515(10)(c) of the Criminal Code of Canada.
CONCLUSION
[56] Accordingly, the instant application is dismissed.
Varpio J.
Released: May 4, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.B.
REASONS ON DETENTION REVIEW
Varpio J.
Released: May 4, 2020
[^1]: For the purposes of these reasons, I accept counsel’s submissions as they make no material difference to my analysis. It is possible that I may have required further evidence in other circumstances.
[^2]: I realize that such a speedy attendance might require the use of a car, but one can easily imagine a plausible scenario where the accused either: (1) uses one of his vehicles despite the sureties’ assertion that the vehicles will be parked at their residence; (2) takes a taxi; or (3) borrows a vehicle from someone, in order to drive to the complainant’s residence.