COURT FILE NO.: CR-20-5000101-00BR DATE: 20200421 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – BASHIR OSMAN Applicant
Counsel: Katherine Stewart, for the Crown Ryan Handlarski, for the Accused
HEARD: April 21, 2020
ALLEN J.
REASONS FOR DECISION ON A BAIL REVIEW APPLICATION
Background
Temporary Suspension of the Court and Procedure on the Hearing
[1] This application was heard and decided in the throes of the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by tele-conference or video conference.
[2] The parties agreed that this bail review could proceed by way of tele-conference. A registrar and court monitor were present in a courtroom to maintain the court record. The parties agreed that the bail review could be heard in the applicant’s absence. Signatures on affidavits were waived by the defence. An order excluding witnesses was made. The parties provided written materials electronically by email and made oral submissions. Exhibits were filed electronically. Viva voce evidence was sought from one surety who was conferenced in by defence counsel, administered an affirmation to tell the truth and questioned in-chief and on cross-examination.
[3] The applicant filed affidavits of the proposed sureties and his own affidavit. The Crown did not seek to cross-examine the applicant.
The Charges
[4] Mr. Osman seeks release on bail on three separate indictments. Two of the indictments involve firearm charges. He also faces charges from January 2014 for impaired driving and refusing to provide a breath sample. The Crown is not seeking to challenge release based on the 2014 charges so they will not be factored into my review.
[5] Regarding the firearm offences, Mr. Osman is charged that on January 1, 2018 he was departing a nightclub in downtown Toronto when a firearm fell from his person and landed on the ground. He was charged under the Criminal Code on a three-count indictment with possession of a firearm under s. 91 (possession without licence, registration); under s. 92 (possession knowingly, without licence, registration); and under s. 95 (possession of loaded firearm without authorization, licence, registration).
[6] On the other firearm offences, Mr. Osman is also alleged to have been driving a vehicle on November 10, 2019 when he rear-ended another vehicle in a residential neighbourhood in Toronto. Mr. Osman departed the vehicle in anticipation that the police would arrive and he took some belongings with him from the vehicle.
[7] Home video surveillance shows a person the police allege was Mr. Osman enter a laneway and deposit some bags of belongings and then enter a backyard and place a firearm on a barbeque. Mr. Osman left the scene and returned about one hour later. The firearm and belongings were located about 45 minutes after they were deposited.
[8] On November 10, 2019, while out on bail on the January 1, 2018 charges, Mr. Osman was charged under the Criminal Code: under s. 320 (fail to remain at scene of an accident); under s. 94 (unauthorized possession of firearm in vehicle); under s. 86 (careless storage of a firearm); under s. 91 (unauthorized possession of firearm); under s. 92 (possession of firearm knowing he was unauthorized); and under s. 95 (possession of prohibited firearm with ammunition).
[9] In addition, Mr. Osman is charged on three counts of failure to comply with recognizance.
The Law on Grounds for a Bail Review
[10] Section 11(e) of the Charter of Rights and Freedoms states that, “Any person charged with an offence has the right ... not to be denied reasonable bail without just cause”. This provision is directed at assuring that the accused will not be denied bail without reason and only will be denied bail where necessary.
[11] Subsections 515(10) (a), (b), and (c) of the Criminal Code provide that bail may be denied on three grounds:
- On the primary ground bail can be denied where the detention is necessary to ensure the accused’s attendance in court. The concern is whether the accused is a flight risk.
- On the secondary ground, bail can be denied for the protection or safety of the public considering whether there is any “substantial likelihood” the accused will commit a criminal offence or interfere with the administration of justice. Substantial likelihood means “substantial risk”, a standard below proof beyond a reasonable doubt: R. v. St-Cloud, 2015 SCC 27.
- On the tertiary ground bail can be denied in order to maintain confidence in the administration of justice, having regard to all the circumstances ... Bail can only be denied if the court is satisfied that in view of the factors enumerated under s. 515(10) (c) and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice: R. v. Hall, 2002 SCC 64.
[12] In applying the guiding principles on the tertiary ground when determining whether detention of the accused “is necessary to maintain confidence in the administration of justice”, the following factors referred to in s. 515(10) (c) must be considered:
(a) the apparent strength of the prosecution’s case; (b) the objective gravity of the offence in comparison with other offences in the Criminal Code; (c) the circumstances surrounding the commission of the offence, whether a firearm was used; and (d) whether the accused is potentially liable for a lengthy term of imprisonment.
[13] The obligation of the court is to consider all the circumstances of each case with particular attention to the four enumerated factors. However, no single circumstance is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all the relevant circumstances. The decisive question to be asked by the court after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice: R. v. St-Cloud.
[14] The Supreme Court of Canada in R. v. Antic further clarified the right to be afforded reasonable bail, citing two aspects of the right that must be considered:
Under the first aspect, a provision may not deny bail without “just cause” — there is just cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system. The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.
[15] The Crown seeks detention on secondary and tertiary grounds. There are no primary ground concerns in this case.
[16] There are three bases upon which a court on a bail review can vary an order:
- where the justice has erred in law;
- where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor. But not on the basis that the justice would have weighed the factors differently; or
- where there is a material change in circumstances.
[17] The defence seeks a de novo proceeding based on material changes in circumstances. A de novo hearing is not appropriate unless there is new evidence being proffered on review: R. v. St-Cloud, at para. 118.
Basis of the Application
[18] This is a reverse onus case. It is the defence’s onus on a balance of probabilities to show cause why detention is not justified. The defence poses several material changes for the court’s consideration, the most critical being the emergence of COVID-19 as a pandemic, which occurred after the show cause hearing. The Crown does not dispute that the pandemic presents a material change in circumstances.
[19] I accept, as other courts have done in this unusual climate, that the pandemic presents a material change of circumstances in the appropriate case: For example: R. v. J.S., 2020 ONSC 1710, at para. 18, (March 20, 2020); R. v. Jeyakanathan, 2020 ONSC 1984, at para. 27, (March 31, 2020); R. v. Nelson, 2020 ONSC 1728 (March 23, 2020); R. v. Cain, 2020 ONSC 2018, at para. 13 (April 1, 2020) and R. v. Phuntsok, 2020 ONSC 2158 (April 8, 2020)].
[20] A further change in circumstances the defence advances is the fact that a mistrial was declared on the trial on the January 2018 firearm charges. The Crown disagrees as do I. The best one can do is speculate on what goes on in a jury room as far as the reason why a jury does not reach a verdict. In the end on the mistrial, there were no positive or negative findings in relation to guilt with respect to any of the three charges. A mistrial in these circumstances cannot amount to a material change in circumstances such as to allow the review court to intervene on the show cause decision.
[21] Additionally, the defence posits that the inclusion of a further surety represents a material change in circumstances. I find in this case that the addition of Amina Dahir is a material change in the circumstances. She indicates she was not available to be a surety at the time of the bail hearing. She was working full-time and living with her mother. In aid of being a surety Ms. Dahir is now residing with Muna Dayr, another surety, at whose residence Mr. Osman is proposed to reside. On the original bail plan the two sureties did not reside together with Mr. Osman. Idman Salah, the third proposed surety for the bail review, lived separately which would not have provided the close supervision proposed under the current plan. This is not the circumstance reflected in R. v. Ferguson, [2002] O.J. No. 1969, at para. 17, (Ont. S.C.J.).
[22] The defence raised a further basis for a material change in circumstance which relates to the January 2014 charges and the fact that the charges were resolved through a non-criminal route. I will not address that issue since release is not being challenged on the January 2014 charges.
The Secondary Ground
Mr. Osman
[23] Mr. Osman provided an affidavit. He is 20 years of age. He has been detained at Toronto South Detention Centre (“TSDC”) since bail was denied on February 19, 2020.
[24] Mr. Osman states that he fears continued detention due to the effects of COVID-19 on people with health vulnerabilities. Mr. Osman indicates he suffers from asthma and is aware that people with conditions like asthma are more at risk of contracting COVID-19. He explained that he has ordered puffers for his asthma since he learned of the risks to him of being detained with that condition. He did not provide a doctor’s note to support his evidence. However, as will be seen below, Ms. Dayr is Mr. Osman’s cousin and has known Mr. Osman all of his life. She attests to the fact that he suffers from asthma and fears for his health and his life if he remains detained.
[25] The Crown does not dispute this, and I accept, that Mr. Osman suffers from asthma.
[26] Mr. Osman speaks of the increased stress at TSDC as inmates are denied visitors, denied face-to-face communications with their lawyers and denied participation in programs offered by the facility. Opportunities to shower are limited. Mr. Osman complains of hygiene issues asserting that surfaces are not adequately disinfected and disinfecting hand cleansing products are not available.
The Sureties
[27] Mr. Osman appeared for show cause on February 18 and 19, 2020 and was denied bail by Justice of the Peace Moniz. Mr. Osman presented two sureties, Muna Dayr and Idman Salah, who were approved by the Justice. I had available for consideration their evidence from the show cause hearing. On review Mr. Osman presents those two sureties and a further surety, Amina Dahir.
[28] Ms. Dayr swore two affidavits. She is 32 years of age and currently unemployed as she was laid off her last job about one-and-a-half years ago. As noted earlier, she is Mr. Osman’s cousin and has known Mr. Osman for his entire life. Ms. Dayr has two young sons, ages 4 and 7, and offers her home as the surety residence. She has a three-bedroom apartment.
[29] Ms. Dayr attested to her knowledge of the seriousness of Mr. Osman’s charges and agrees to release terms requiring 24/7 supervision by the sureties and understands her obligations as a surety. She indicated her willingness to have Ms. Dahir reside at her home to assist with supervision and indicated she will be able to rely on Ms. Salah to assist when she is unavailable if, for instance, she has to buy groceries.
[30] Ms. Dayr attested to her preparedness to call the police if Mr. Osman commits a breach. She indicated that because of isolation due to COVID-19, her children are at home and being home schooled. She stated that even when things go back to normal, because she is unemployed, she will be able to supervise Mr. Osman.
[31] Ms. Dayr expressed concern about Mr. Osman’s health because she is aware that he has asthma. She is worried that if he remains in detention at TSDC where there have been some cases of the virus, that his health would be at risk. She expressed a wish to have Mr. Osman self-isolate in her home.
[32] Ms. Dayr is willing to pledge $10,000.00 that she has saved for her children’s education fully aware that if Mr. Osman breaches bail, she could lose that money. She believes Mr. Osman would not put her to that risk.
[33] The defence proposes an electronic monitor as an added element of security. Defence counsel filed an email communication dated April 14, 2020 from Steve Tan, the proprietor of Recovery Science Corporation, in which Mr. Tan states that his company has a sufficient inventory of bracelet monitors. He also indicates that he has the capacity to install a bracelet at any location and time, give or take a few hours, if he is busy.
[34] In her second affidavit, Ms. Dayr attests to willingness to assume the expense of paying the $250.00 initiation fee and the $450.00 per month fee for the service. Although she is unemployed, she is willing to undertake the expense, if the court requires this, and she expects Mr. Osman to reimburse her when he is able to.
[35] Ms. Salah provided an affidavit. She is 28 years of age and has known Mr. Osman for more than ten years. They have remained friends during adulthood. She is currently unemployed due to the COVID-19 virus. She resides in a separate residence from Ms. Dayr, with whom she is a close friend, and has a four-year-old child.
[36] Ms. Salah expresses her understanding of the seriousness of the charges Mr. Osman is facing and that he would be required to be under 24/7 strict supervision by the sureties. She indicated she would step in to supervise if Ms. Dayr were unavailable and would check in daily with Mr. Osman. Ms. Salah indicated she would have no hesitation to immediately call the police and remove herself as a surety if Mr. Osman violates bail.
[37] Ms. Salah is willing to pledge her entire savings of $5,000.00 as security for bail which is valuable to her since she is unemployed. She indicates that Mr. Osman is aware of this and she believes he would not jeopardize her financially by breaching the bail terms.
[38] Amina Dahir provided an affidavit and testified at the hearing by teleconference. She is 31 years of age. She is a family friend of Mr. Osman whom she has known since childhood. Ms. Dahir indicated her awareness of the serious firearm charges Mr. Osman faces and an understanding of her obligations as a surety to ensure he complies with the bail terms and to call the police if he does not.
[39] Ms. Dahir works for a property management company and since the pandemic her work hours have been reduced. As noted earlier, Ms. Dayr has allowed her to reside at her home. This will allow Ms. Dahir to save money. Ms. Dahir is currently living at Ms. Dayr’s residence and says she will remain living there for at least a year. She stated that she is able to work from home on her job, only going into work one or two times per week. She expressed her willingness to assist with supervising Mr. Osman.
[40] Ms. Dahir is willing to pledge the entirety of her assets which amounts to a $4,000.00 RRSP and $4,000.00 in savings. This, she states, is a significant amount of money given the circumstances of her employment. She believes this financial risk to her would bind Mr. Osman’s conscience and motivate him to remain in compliance.
Conclusion on the Secondary Ground
[41] It is of considerable concern to me that Mr. Osman has three outstanding charges for breach of recognizance. Mr. Osman committed the November 2019 firearm offences some two years after his 2018 charges while on curfew bail and subject to a firearm prohibition. This shows a reckless and risky disregard for the law and public safety. In both situations he openly had a firearm out in public where the lives of unsuspecting people and children could be at stake. His release demands a strict 24/7 plan of supervision involving sureties who display a strong dedication to ensuring his compliance with strict house arrest terms.
[42] I find the plan of supervision will provide for the protection and safety of the public and is capable of allaying concerns about a “substantial likelihood” that Mr. Osman will commit a criminal offence or interfere with the administration of justice. I will require GPS monitoring as an extra measure of security in view of Mr. Osman’s past non-compliance and in view of the seriousness of the offences he faces.
[43] Ms. Dahir is Mr. Osman’s cousin and she has known him all of his life and Ms. Dayr has known him for over ten years. I accept that Ms. Dayr and Ms. Dahir present as suitable sureties. They will be able to provide strong supervision. The circumstances are such that Ms. Dahir will be residing at Ms. Dayr’s three-bedroom apartment with Ms. Dayr and her two young boys. The arrangement is for Ms. Dayr to share a bedroom with her children and Ms. Dahir and Mr. Osman will occupy the other two bedrooms.
[44] Ms. Dayr was unemployed for over a year before the pandemic struck and remains unemployed. Especially in view of the isolation required under the pandemic, she will be home more often than normal and will be home schooling her children. Ms. Dayr indicated that since the pandemic she has only left the home to buy groceries.
[45] Ms. Dahir is laid off from her property management job and can work from home, only going to work one or two days per week. I find it reasonable that Ms. Dayr and Ms. Dahir can stand in for each other to supervise Mr. Osman in the event that one of them on occasion might have to leave the apartment. There will at all times be someone to watch him.
[46] Ms. Salah has offered herself as a surety to assist with the 24/7 supervision plan. However, with the requirements of social isolation and distancing it is not likely she could be of as much assistance as she otherwise would be. For the time being, it would not be in keeping with the social requirements of the pandemic for Mr. Osman and Ms. Salah to move back and forth between households. Nonetheless, Ms. Salah is willing to pledge the entirety of her $5,000.00 in assets to secure Mr. Osman’s release. I find this displays a dedication to ensure Mr. Osman’s compliance.
[47] Ms. Dayr and Ms. Dahir are of modest means, even more so with the financial impact of the pandemic. And yet, to demonstrate their commitment to ensuring Mr. Osman’s compliance they are willing to pledge the entirety of their assets, Ms. Dayr the entirety of her children’s $10,000.00 education fund and Ms. Dahir her entire $4,000.00 in savings. Ms. Dayr has also undertaken to pay the initiation fee and monthly expense for the GPS monitor if the court so orders, which I find to be an added show of commitment.
[48] While not determinative in any way, I can take note that while Mr. Osman was on bail on the January 2018 charges, being supervised by different sureties, he was on strict house arrest for some seven months during which time there were no breaches. His bail was varied to a curfew. It was when he was on curfew that he committed the November 2019 offences. This could bode well for compliance under the new stricter house arrest arrangements.
[49] I have taken into account the strengths and shortcomings of GPS monitoring. While monitoring has been shown to be valuable on bail, there are some functions it is not suited for. As commented in another case set in the context of the pandemic, electronic monitoring cannot protect against an out of control, irrational accused who does not care about apprehension or prosecution. But monitoring is effective in combination with reasonably strong supervision: R. v. T.L., 2020 ONSC 1885, at para. 22 at paras. 22-27. There is no evidence that Mr. Osman displays those characteristics.
[50] I find in conclusion that with the strong plan of supervision in combination with electronic monitoring the defence has satisfied the secondary ground.
The Tertiary Ground
The Apparent Strength of the Crown’s Case
[51] I find the Crown’s case moderately strong on both the January 2018 and November 2019 charges.
[52] On the January 2018 charges, the defence’s position is that there are triable issues on possession of the firearm. In the defence’s view the Crown’s case is weakened by inconsistencies in the officers’ observations at the scene. The defence points to the officers’ testimonies on what occurred in relation to the firearm after it fell to the ground.
[53] The defence argues that Mr. Osman never had possession and that there are credibility issues in the police evidence on this issue. No officer saw the firearm drop. They only heard the sound of it striking the ground. Some officers said they saw him pick up the gun and he was then immediately tackled by the police. Other officers said they saw him pick up the gun and run with it followed by the police chasing and tackling him. Both versions put Mr. Osman in possession.
[54] The defence also raises issues about faults in the police investigation. There was a failure to retrieve video surveillance from the scene and to interview witnesses. In relation to the January 2018 case, after the close of the evidence, Code, J. dismissed a s. 7 Charter challenge in relation to a claim of lost evidence. A mistrial followed due to the jury not reaching a unanimous verdict. The Crown reads Code, J’s decision as not arriving at the conclusion that there are inconsistencies between the officers’ testimonies. The Crown relies on this to strengthen the Crown’s case.
[55] I find there is a triable issue on the question of possession that I find reduces the strength of the Crown’s case.
[56] In regard to the November 2019 charges, the defence argues there is an identification issue. The home video surveillance is not at all clear. The subject cannot be clearly identified. So, we are not looking at a R. v. Nikolovski situation where video evidence is so clear that it can present clear and convincing evidence that can be relied upon as the sole basis for identification: R. v. Nikolovski, 1996 SCC 158, [1996] 3 SCR 1197 (S.C.C.).
[57] The video does appear to show a person that is wearing a jacket with a fur-fringed hood and the person appears to be wearing shoes with white colouring. The defence points to the booking video recording that shows Mr. Osman in a jacket that appears not to have fur on its hood and shoes that appear to be black.
[58] The Crown responds that an hour passed between the time of the home surveillance and Mr. Osman’s appearance on the booking video and that he would have had the opportunity to change his jacket to mask his identity.
[59] The Crown further points out that the evidence tracks Mr. Osman from the car and connects him to the documents among the contents of the bags of belongings he removed from the car and left in the laneway and further tracks him going into the backyard where he left the firearm. The Crown also points out that Mr. Osman is next observed departing the backyard and then leaving the area. Mr. Osman is also found to be connected to documents found in a backpack the police found in a park on January 2, 2020, the contents of which connected the backpack to Mr. Osman.
[60] There may be a triable issue as to the identity of the person who placed the firearm in the backyard that could somewhat detract from the strength of the Crown’s case. While the Crown’s case is not overwhelmingly strong, from my perspective, the chain of movements of the person on the video surveillance and the apparent connection of Mr. Osman to the contents of the bags and backpack favour the Crown’s case.
The Gravity of the Offence
[61] There is no dispute that two sets of charges for possession of loaded firearms represent very serious crimes. This is particularly true in a case such as this where the accused carried a loaded firearm into a crowded nightclub and into a backyard where residents including children congregate. Add to this the fact that Toronto has been the unfortunate focal point of significant gun violence and the crime takes on more serious proportions.
Circumstances Surrounding Commission of the Offence
General Considerations
[62] In considering s. 515(10) (c) of the Criminal Code the court must be guided by an inquiry into whether the accused’s continued detention is necessary to maintain confidence in the administration of justice. That consideration must be cast from the perspective of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law. This includes the presumption of innocence, the right to liberty and the rights guaranteed by the Charter: St-Cloud, at paras. 72-87.
[63] There is no finite list of circumstances that might be considered under s. 515(10) (c). R. v. St-Cloud posits some examples of possible circumstances surrounding the commission of the offence that relate to the victim and the nature of the crime:
… the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.
[64] The circumstances of the accused may also be considered:
Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant.
R. v. St–Cloud, at paras. 61 and 71
[65] Clearly, the most compelling circumstance is the situation created by COVID-19. But before I address that issue as it impacts on bail for Mr. Osman, I will make some comments about Mr. Osman personally.
Mr. Osman
[66] Mr. Osman is a young man, currently 20 years of age with no criminal antecedents. At the show cause hearing his sureties testified about aspects of his life. He attended Queens University for some years, but I understand that he dropped out before he graduated. After he left university, he was working at a construction job at the time he committed some of the offences. Earlier he worked for a few years at a car service managing a fleet of Smart Cars.
[67] As noted earlier, Mr. Osman suffers from asthma, one of the respiratory conditions that presents a risk factor. He is currently prescribed Ventolin and Flovent puffers. He states that he has not been provided with hand sanitizer. He believes the environment at TSDC is unsanitary. He complains that the limited availability of showers contributes to the lack of hygiene when hygiene is important to prevent the spread of the virus. Mr. Osman states that he feels it is a matter of time before COVID-19 spreads to TSDC and he fears for his life for that reason.
Documentary Evidence on COVID-19
[68] Numerous documents were filed for the hearing leading up to, during and after the hearing. The Crown filed a number of documents from the Ministry of the Solicitor General:
- Affidavit of Dr. Aaron Orkin, dated April 2, 2020
- Supplementary Affidavit of Dr. Aaron Orkin, dated April 5, 2020
- Information Note – Institutional Services Response to COVID-19, April 6, 2020
- Information Note – Institutional Services Response to COVID - 19, April 7, 2020
- Response to COVID-19 Information Note, April 14, 2020
[69] The defence filed a number of documents as well:
- Curriculum Vitae of Dr. Aaron Orkin
- Attached to Dr. Orkin’s Affidavits are:
- Information Note, Institution Services Response to COVID-19, March 30, 2020
- Briefing Note, Institutional Response to COVID-19, March 25, 2020
- Affidavit of Dr. Orkin, dated 7, 2020
- COVID-19 Fact Sheet, supplementary material prepared by defence counsel
The Law on Evidence at Bail Hearings
[70] The parties have sought admission of a number of documents that under the strict rules of evidence would constitute varying degrees of hearsay, documents where the opposing party has no opportunity to inquire into and cross-examine on the contents. Of note here is that bail hearings are formal proceedings which by their very nature are conducted under conditions which permit only short turn around times for counsel to prepare.
[71] Certain foundational procedural rules under the Criminal Proceedings Rules for the Superior Court of Justice can be considered to relieve bail proceedings of the more restrictive rules applied to other proceedings. Rules 1.04(1) and 2.01 can be applied to provide for flexibility on the admission of evidence at bail hearings. Rule 1.04 states:
1.04 (1) These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
[72] Section 2.01 provides:
2.01 A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.
[73] Section 518 of the Criminal Code provides guidance on the evidence a court may take into consideration. The pertinent paragraphs are as follows:
518 (1) In any proceedings under section 515, (d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel; (e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.
[74] The Supreme Court of Canada in R. v. St-Cloud recognized the need for flexibility, observing that due to the expeditiousness with which a bail hearing must be conducted and decided the rules of evidence must be somewhat relaxed. This allows parties to make submissions to the court where most often they have limited time to prepare: R. v. St-Cloud, at paras. 107 – 109.
[75] The issue of judicial notice is pertinent in a bail proceeding where expeditiousness is required, and for instance, the use of such materials as expert reports and government documents is sought. The Supreme Court of Canada addresses the circumstances where it is appropriate for the court to take judicial notice of facts at legal proceedings. The court set a strict threshold for judicial notice providing that a court may properly take judicial notice of facts that are either: (a) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (a) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Find, [2001] 1 S.C.R. 865, at para. 48, (S.C.C.).
[76] I accept as the court did in R. v. Jeyakanathan, cited above, for reasons discussed below that this court can take judicial notice of the well-known undisputed facts that document the nature and impact of COVID-19.
COVID-19 and the Circumstances of the Case
[77] As noted earlier, during the bail review hearing, which was conducted on April 17, 2020, Crown counsel delivered an updated Information Note from the Ministry of the Solicitor General, dated April 14, 2020. I summarize as follows the findings of that document since it has the most current information on the circumstances in Ontario correctional facilities:
- 5,929 inmates registered in custody across 25 institutions;
- a 28.9% reduction in the inmate population since March 16, 2020;
- total inmates tested for COVID-19, 156
- total negative results, 121;
- total pending results, 29;
- total positive results, 6;
- 3 of the positive cases are at TSDC;
- at TSDC, 1 of the positive cases was an intermittent inmate, not in TSDC custody, and no close contacts at the intermittent centre were identified;
- in all positive cases, operational protocols related to infection prevention and control have been maintained and all appropriate steps have been taken to protect staff and other inmates;
- 4 confirmed cases of staff testing positive for COVID-19 reported;
- 1 is a staff member at TSDC;
- 1 is a staff member at Hamilton-Wentworth Detention Centre (“HWDC”);
- 2 are staff at the Ontario Correctional Institution (“OCI”);
- Containment protocols were undertaken immediately by health care staff in collaboration with the Medical Officer of Health;
- 1 confirmed case of a third-party contract worker connected to South West Detention Centre who tested positive for COVID-19 was reported to the Ministry;
- Containment protocols were immediately undertaken by health care staff working in collaboration with the Medical Officer of Health
[78] The April 14, 2020 Information Note describes the communicable disease outbreak process.
- If a reportable communicable disease occurs or is suspected, institution authorities notify the local Medical Officer of Health, and Ministry provincial health professionals;
- The Medical Officer of Health determines whether to declare an outbreak and provides direction for containment;
[79] The Information Note describes the medical care available to inmates. It also describes admission protocols. Every inmate and other persons entering a facility are subject to an active screening protocol upon entry into the facility. With inmates the facility seeks to identify chronic illnesses, infectious diseases, addictions and mental and emotional health issues.
[80] Staff are questioned as to whether they have any symptoms related to COVID-19; whether they have travelled outside Canada; and whether they have been in contact with anyone diagnosed with COVID-19. Efforts are underway, to take effect by April 17, 2020, to obtain thermometers at all institutions to further the screening of staff.
[81] Professional visitors who attend a facility are screened similarly to staff. Personal visitations for inmates have been suspended until further notice. Professional visitations from lawyers and spiritual advisors are continued.
[82] Facilities are inspected and thoroughly cleaned regularly. Outside vendors are used to deep clean where there has been a confirmed case of COVID-19. Inmates are provided cleaning supplies to clean their own cells. Staff and inmates have access to personal protective equipment (“PPE”) including face masks, eye protection, gloves and gowns to be used according to Ministry of Health instructions.
[83] Efforts are being made to reduce capacity. Intermittent inmates are issued Temporary Absence Permits (“TAPs”) effective until May 1, 2020. Non-custodial options are considered for non-violent offenders and those at low risk to offend. Virtual courts, video and tele-conferences are being used in collaboration with the Ministry of the Attorney General, the police and courts to reduce the need to transport inmates to courts.
Dr. Orkin’s Report
[84] Dr. Aaron Orkin is a physician and epidemiologist and an Assistant Professor at the University of Toronto in the Department of Family Medicine. He is a clinician-scientist who conducts research on health equity and vulnerable populations such as the homeless, drug users and indigenous populations. He works in the emergency departments of two Toronto hospitals. He is the Medical Director of St. Joseph’s Health Centre COVID-19 Assessment Centre. He takes a leading role in planning and implementing strategy to respond to COVID-19 among Toronto’s homeless population.
[85] Some of the pertinent findings in Dr. Orkin’s affidavits, drawn from his own experience and the findings and data in the Government Information and Briefing Notes, can be summarized as follows:
- Inmates in correctional facilities have a higher incidence of chronic diseases such as cardio and respiratory disease (such as asthma), mental health challenges and addiction which leads to a higher admission to intensive care units;
- Government orders for social distancing of at least two metres to limit social contact is a critical strategy to “flatten the curve” of those stricken by the disease which strategy is aimed at reducing hospital admissions and preventing the hospital system from being overwhelmed;
- Preventing outbreaks in congregant facilities such as long-term care facilities, homeless shelters, military barracks and detention facilities is a priority in flattening the curve;
- It is nearly impossible to limit spread in congregant spaces such as cruise ships, hospitals and long-term care facilities;
- It is extremely likely COVID -19 will arrive at every correctional facility in Canada and extremely likely that inmates will face exposure to the virus;
- The required social distancing to reduce COVID-19 transmission is impossible with the size of inmate populations and limited space in correctional facilities;
- Bunk beds, shared toilets, telephones, and dining spaces create hazardous conditions;
- Reduced staff in correctional facilities due to illness, absenteeism and self-isolation requires consideration of reducing inmate populations;
Defence COVID-19 Fact Sheet
[86] The COVID-19 Fact Sheet filed by the defence contains information on COVID-19 and how it became a global pandemic; on the highest cases of COVID-19 globally; on Canadian cases of COVID-19; on what COVID-19 is and how it is transmitted; on steps to contain COVID-19 in jails in Canada; and on other resources and; on relevant facts and expert opinions.
[87] The information contained in the Fact Sheet appears to be collected from various sources: various websites; magazine publications; British, American and Canadian news media; and Ontario government publications.
Admissibility of Dr. Orkin’s Report
[88] The Crown challenges the admissibility of Dr. Orkin’s evidence in its entirety for a number of reasons. Crown counsel’s principal criticisms are that the evidence does not satisfy common law and statutory principles. In the Crown’s view, Dr. Orkin’s evidence does not meet the evidentiary rules that govern expert evidence. Further, according to the Crown, Dr. Orkin’s evidence is not being sought to be introduced in accordance with the requirements of the Criminal Code. That is, there has been no opportunity to test the trustworthiness of his evidence through cross-examination.
[89] Crown counsel also submits that Dr. Orkin’s affidavits contain information for which he has provided little or no factual foundation. This, the Crown argues, runs up against s. 518(1)(e) of the Criminal Code which provides that the court can receive evidence considered credible or trustworthy in the circumstances of each case.
[90] The Crown further submits that since the Crown does not consent to the admission of Dr. Orkin’s evidence, s. 518(1) (d) also comes into play which provides that the court may consider any evidence agreed upon by the parties. And Crown counsel further refers to the general rule set out in s. 657.3(1) and (2) of the Criminal Code which provides that the preferred means of introducing evidence in criminal proceedings is through viva voce evidence. The provision also permits the court to require the signatory of an affidavit to attend for examination and cross-examination.
[91] Crown counsel relies on common law principles on expert evidence as expressed in R v. Mohan. In that case, the Supreme Court of Canada sets the following criteria for the admission of such evidence: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. Relevance is a threshold issue: R. v. Mohan, 1994 SCC 80, [1994] 2 S.C.R. 9 (S.C.C.).
[92] The Crown also raises particular criticisms about the nature of the substance of some of Dr. Orkin’s opinions such as: he appears more as an advocate than a neutral expert; there is an obvious lack of comment in crucial areas; he uses fear-generating language; and his lack of specific experience with correctional facilities and the fact he has not visited TSDC.
[93] I do not accept Crown counsel’s position that the entirety of Dr. Orkin’s affidavit evidence should be excluded. Dr. Orkin’s curriculum vitae reveals that he is not devoid of experience and expertise with COVID-19 in the contexts of research, hospital practice and the investigation of the impact of the pandemic on vulnerable community populations. I do not think his entire evidence ought to be jettisoned. What the court accepts from his evidence is a matter of weight.
[94] As to the requirement for regular formalities in criminal proceedings, I turn to the acknowledgement in statutory and common law that there is a need for flexibility and the relaxation of evidentiary rules in the context of a bail proceeding. Further, much of the information and data contained in Dr. Orkin’s affidavits can be the subject matter of judicial notice and some of his opinions are within the realm of his expertise.
[95] For instance, I find Dr. Orkin provides useful information about the impact of COVID-19 and, in particular, about the jeopardy to persons living in congregant settings. I accept his opinion on the possibility that affected persons in congregant settings can be a factor in possible an overwhelming spread to the general public. I believe this is also a matter where the court can take judicial notice from the information generally available from Government officials, Government websites and publications and the media. I can accept Dr. Orkin’s evidence in this area.
[96] I believe judicial notice can also be taken of Dr. Orkin’s evidence about the necessity for social distancing, the requirement to remove infected inmates from the facility and the need for COVID-19 spread to be detected and controlled among inmates and staff to prevent correctional facilities from contributing to already over-taxed hospitals. I accept that evidence.
[97] I think Dr. Orkin steps beyond the realm of his experience and expertise when he opines in more particularity on the congregant circumstances in correctional facilities. Dr. Orkin does not have the expertise to address the particular risks inmates may face at a particular correctional facility. He has not visited a facility and his opinions about spacing, numbers of congregants, protocols and the implementation of those protocols are not grounded in experience or supporting data. I can place no weight on that evidence.
[98] Like the Crown, I also have concerns about Dr. Orkin’s opinion expressed in the following statement: “it is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada, and therefore extremely likely that almost all inmates in these settings will be exposed in one way or another. The only available method to substantially reduce the resulting infections and deaths is therefore to reduce the population in those settings.” I accept the Crown’s contention that Dr. Orkin has no basis to make such a conclusive assertion. I find, as things stand today, that it is speculative to advance, without a foundation for that opinion, the view that it is extremely likely COVID-19 will impact nearly every correctional facility in Canada.
Admissibility of the Defence’s COVID-19 Fact Sheet
[99] Flexibility in the rules of evidence and court procedure are not so relaxed as to permit the admission of any evidence. The evidence at a minimum must be relevant. The evidence must be capable of being verified to some extent.
[100] The defence’s COVID-19 Fact Sheet contains lists of points apparently extracted from a variety of sources. The sources are not before the court so the points in the Fact Sheet cannot be subjected to verification. In addition, the sources are at most second-hand hearsay from media and internet sites and for this reason not very useful to this court. Further, there is a question of the relevance of most of the contents of the Fact Sheet since I find much of it does not bear directly enough on the issue before the court on this bail review. That is, many of the sources provide data about the circumstances in correctional facilities in other countries that is only peripherally relevant to the situation in Canada.
[101] The information addressing the circumstances in Canada the court can derive from better evidence that is already before the court. The Ontario Government Information and Briefing Notes contain more reliable information.
[102] For that reason, I give no weight to the COVID-19 Fact Sheet and exclude it as evidence in this bail review.
Potential Lengthy Term of Imprisonment
[103] Undoubtedly, if Mr. Osman is found guilty, he will be facing a lengthy prison sentence.
Conclusion on the Tertiary Ground
[104] I remind myself that in determining the effect of the factors under s. 515(10)(c), I must keep top of mind the question whether the accused’s continued detention is necessary to maintain confidence in the administration of justice, this to be adjudged through the eyes of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law.
[105] I also remind myself that the court must consider all of the circumstances of each case with particular attention to the four enumerated factors. No single circumstance is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all the relevant circumstances. The critical question to be asked by the court after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice.
[106] For the following reasons, I do not find it necessary for Mr. Osman to remain in detention to maintain confidence in the administration of justice.
[107] Under s. 515(10)(c)(i), I found that in relation to both the January 2018 and November 2019 charges, the Crown’s case is moderately strong, with a somewhat weaker case for the Crown on the January 2018 charges where the essential element of possession of the firearm presents a triable issue. On the November 2019 charges, the video evidence and the connection of the suspect to various pieces of evidence (including the firearm) through his movements make for a somewhat stronger case for the Crown although the issue of identification does pose an issue for the Crown.
[108] As for the seriousness of the offence under s. 515(10)(c)(ii), this factor strongly favours the Crown’s case. The public has been confronted particularly in Toronto with daily reports of gun violence and death. This is a terrifying circumstance where the violence is randomly spread throughout the city.
[109] The brash and careless actions of Mr. Osman carrying a loaded firearm to a nightclub and, while on bail for that crime, carrying another loaded firearm into a residential neighbourhood and leaving it there, is nothing short of inexcusable disregard for the law and public safety. The fortunate saving grace in the circumstances is that the firearm was not in use. The firearm was not pointed at anyone and no one was injured. This factor favours the Crown’s case.
[110] Under s. 515(10)(c)(iv), on the question of the prospect of a lengthy sentence for those offences, if found guilty, Mr. Osman is headed for a lengthy stay in prison. This favours the Crown’s case.
[111] I may look at the circumstances surrounding the commission of the offence that relate to the victim and the nature of the crime. The latter point I addressed above. Fortunately, there were no victims in relation to either of the firearm charges. There were no others involved in the crimes.
[112] I may also consider the personal circumstances of Mr. Osman looking at such factors as his age, criminal record, physical or mental condition and membership in a criminal organization. I find in this area of the analysis that COVID-19 assumes special prominence in light of the conditions created by the virus and the potential affect on Mr. Osman as an inmate in a correctional facility.
[113] Before I address COVID-19, I point out that Mr. Osman is a very young man of 20 years and has no criminal record. Having attended Queens University for a number of years, he has some intellectual acumen that could offer him the basis to think about a better life for himself. There is no evidence in relation to either firearm offence that he is a member of a criminal organization. His crimes were a one-man show. These factors bode in his favour of release.
[114] Consideration of his health comes into play in relation to looking at the impact of COVID-19 on him while under detention at TSDC. Mr. Osman suffers from asthma, a condition the evidence demonstrates makes a subject vulnerable to contracting the virus. The evidence makes it clear that the virus is spread through the air and on surfaces. There is the prospect of spreading the virus if social distancing is not or cannot be practised. The evidence is clear that in congregant settings like correctional facilities the risk is high. The Government and correctional facility officials are aware of this and have put into effect protocols to prevent and contain the spread of the virus in relation to staff, inmates and visitors to the facilities.
[115] Mr. Osman’s evidence about the hygiene and level of sanitation at TSDC differs from the data in the April 14th Information Note. The facility’s information is that sanitation is a priority and as such there is regular cleaning of the facility. Mr. Osman was accurate when he stated that inmates are not given hand disinfectant. According to the Ministry of the Solicitor General’s information, inmates are given multi-purpose soap because of the safety issues connected to allowing inmates to have conventional hand disinfectants.
[116] There have been 3 inmates and 1 staff infected with the virus at TSDC as of April 14th. The administration has succeeded in depopulating Ontario facilities by 28.9% as of April 14th. Mr. Osman is understandably in a great deal of stress over the prospect of getting ill and possibly dying.
[117] However, the population at TSDC and the number of infected inmates is about to be increased as of today. At the time of writing this decision it was reported in the news that on April 20th the Ministry of the Solicitor General confirmed that the Ontario Correctional Institute (“OCI”) will be closing effective April 20th after eight staff members and 60 inmates tested positive for coronavirus. The plan is for all inmates OCI to be transferred to a separate area at TSDC. The news article contains a confirmation that no transferred inmates will be placed with existing inmates at the TSDC: https://globalnews.ca/news/6842162/coronavirus-brampton-jail-covid-19-outbreak/.
[118] I find the risk to inmates generally and to vulnerable inmates will possibly increase with an increased population at TSDC.
[119] I have considered and weighed the four factors under s. 515(10)(c) and I find on balance that the facts weigh in favour of release. I conclude that the accused’s continued detention is not necessary to maintain confidence in the administration of justice when considered from the perspective of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law.
Disposition
[120] Bashir Osman shall be released from custody.
Order
[121] Bashir Osman shall be released from the Toronto South Detention Centre on the following terms:
a. He shall reside at the home of his surety Muna Dayr at Apartment 215 at 2765 Islington Avenue in Toronto, Ontario; b. He shall be under 24-hour, 7-day per week house arrest only being allowed outside the residence if accompanied by one of his sureties; c. His sureties shall be Muna Dayr and Amina Dahir who shall also reside at Apartment 215 at 2765 Islington Avenue in Toronto, Ontario; d. A third surety shall be Idman Salah who resides at Apartment 103 at 1206 Wilson Avenue, in Toronto, Ontario; e. Muna Dayr shall post security for bail in the amount of $10,000.00; f. Amina Dahir shall post security for bail in the amount of $4,000.00; g. Idman Salah shall post security for bail in the amount of $8,000.00. h. A GPS ankle monitor shall be installed by a representative of Recovery Science Corporation at the Toronto South Detention Centre before Bashir Osman is released; i. Muna Dayr shall pay the $250.00 initiation fee and the $450.00 monthly fee for the GPS ankle monitor; j. Bashir Osman shall not be within 50 metres of the residences at 58 Harshaw Avenue and 60 Harshaw Avenue in Toronto, Ontario; k. He is prohibited from having possession of a firearm as defined in the Criminal Code which includes any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.
B.A. Allen J.