Court File and Parties

COURT FILE NO.: CR-20-6-11 DATE: 20200423 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – M.J.I.

Counsel: Caolan Moore, for the Crown Jennifer Penman, for M.J.I.

HEARD: April 17, 2020

DECISION ON DETENTION REVIEW

P. J. Monahan J.

[1] MJI was ordered detained by a Justice of the Peace on January 23, 2019, in connection with a variety of firearms-related offences that are alleged to have occurred on December 18, 2018. This is a review of his detention pursuant to s. 525 of the Criminal Code.

[2] The detention review hearing proceeded by audio conference due to the COVID-19 pandemic. MJI was unable to participate since the Toronto South Detention Centre (“Toronto South”), where he is currently being held, was on lockdown during the hearing. His counsel had instructions to proceed in his absence and, in any event, the Criminal Code does not require the presence of the accused during a detention review hearing.

[3] It is agreed that the onus is on MJI to show why his continued detention in custody is not justified. [1] He argues that he has satisfied this onus on the following three bases:

i. the decision of the Justice of the Peace was clearly inappropriate, in that Her Worship erred in her analysis of the tertiary grounds for detention under s. 515 (10) (c); ii. there has been a material change in the plan of release which has been significantly strengthened since the initial bail hearing; and iii. the COVID-19 pandemic constitutes a material change in circumstances. In light of MJI’s vulnerable health status, in combination with a strict plan of release, his release from detention is justified.

[4] I would not give effect to either of the first two arguments raised by MJI. However, in light of the fact that MJI does not pose any risk to the public, as well as his ongoing physical injuries and increased vulnerability to COVID-19, I find that his continued detention is not necessary to maintain public confidence in the administration of justice. I therefore order him released in accordance with the reasons and on the terms set out below.

Background

[5] At approximately 1:30 AM on December 18, 2018, Toronto Police received information from a number of different sources that there had been gunshots in a residential neighbourhood around 106 Crittenden Square in Scarborough, Ontario. One witness indicated that he had heard shots and had observed a male running towards a white car, which sped away moments after the shooting.

[6] Police attended on scene and found MJI wedged between a fence and a shed in the backyard of 108 Crittenden Square. He was lying on his back and had obviously been severely injured. MJI was unable to walk and police had to cut through the fence to get to him.

[7] As MJI was moving around, his hand brushed some leaves on the ground. This motion revealed a 9 mm handgun lying on the ground approximately one foot from his hand. The handgun had one bullet in the chamber and one bullet in the magazine.

[8] MJI had suffered multiple gunshot wounds to the lower part of his body, including wounds to his abdomen, thigh, pelvis and buttock. These injuries were life-threatening. He was taken to Sunnybrook Hospital, where he underwent emergency surgery. Although he did suffer a number of complications, including infection from his bowel injury which required further surgery, ultimately the surgeries were successful.

[9] On January 21, 2019, MJI was transferred to West Park Hospital for inpatient rehabilitation. A January 22, 2019 letter from Dr. Fred Brenneman of Sunnybrook Health Sciences Centre reported that MJI’s one-month hospitalization at Sunnybrook had left him very weak and with significantly decreased muscle strength and decreased mobility. Dr. Brenneman indicated that MJI would need significant time in rehab to physically gain strength back before hospital discharge. MJI also had a colostomy which required care and attention. Dr. Brenneman indicated that the colostomy would eventually require more surgery sometime in the next 6 to 12 months to close it so that MJI would again have regular bowel movements.

[10] MJI declined to disclose any details about the circumstances leading to his being shot on December 18, 2018. However, police found approximately 20 bullet casings, in three groupings, in and around 108 Crittenden Square. These bullet casings were analyzed by the Centre for Forensic Science (CFS).

[11] CFS is of the opinion that one group of nine bullet casings found in the backyard between 104 and 106 Crittenden Square was discharged from the firearm that was found beside MJI. A second group of six bullet casings was found in the backyard of 106 Crittenden Square, close to the fence and shed where MJI was found, while a third group of five bullet casings was found in the front yard of 104 Crittenden Square. CFS is of the opinion that the second and third group of bullet casings were discharged from two separate, unidentified firearms. Thus, CFS believes that there were a total of three firearms involved in the shooting incident, including the firearm found beside MJI’s hand.

[12] As a result of this incident, MJI is charged with the following Criminal Code offences:

a. reckless discharge of a firearm, contrary to s. 244.2; b. possession of a loaded restricted firearm, contrary to s. 95 (1); c. possession of a firearm knowing its possession is unauthorized, contrary to s. 92 (1); d. possession of a weapon dangerous to the public, contrary to s. 88 (1); and e. two counts of possession of a weapon while such possession is prohibited, contrary to s. 117.01.

[13] MJI has a prior related criminal record. In 2013, he pleaded guilty to a charge of possessing a loaded restricted firearm for which he received a sentence equivalent to five years, taking into account credit for presentence custody. He was also convicted of using an imitation firearm in the commission of an indictable offence in 2010. As a result of these convictions, MJI was subject to lifetime weapons prohibitions pursuant to s. 109 of the Criminal Code.

January 23, 2019 Bail Hearing

[14] At the January 23, 2019 bail hearing, the Crown was seeking the detention of MJI on the tertiary ground. The Crown acknowledged that any concerns arising on the primary or secondary grounds were adequately addressed by the fact that MJI’s serious injuries would prevent him from committing any further crimes and would ensure that he would attend court as required.

[15] The plan of release proposed was house arrest, along with two sureties and electronic monitoring. One of the proposed sureties was MJI’s father, OI, while the second surety was MJI’s fiancée, PSR. It was proposed that MJI would live with his fiancée and that OI would move in to PSR’s residence to assist in the supervision.

[16] Both sureties testified and were cross-examined at the bail hearing.

[17] OI is 63 years old and is retired. He currently lives with his wife, his daughter and two of his grandchildren. At the bail hearing, he was prepared to pledge $7000 in support of MJI’s bail.

[18] OI was of the opinion that MJI has never owned or possessed any firearms. He indicated that he had never spoken with MJI about not possessing firearms since the topic never came up. OI was of the opinion that MJI would never possess a gun while living in OI’s house.

[19] OI was asked whether he had discussed with MJI who had shot him on December 18, 2018. OI testified that he had gone to visit MJI a number of times in the hospital, but the police had told him that he was not allowed to talk to MJI about what had happened. Because of what the police had told him, OI had not asked MJI about who had shot him.

[20] The second proposed surety, PSR, is MJI’s fiancée. She is 31 years old. She and MJI have a son, born in August 2018, who lives with PSR. At the time of the bail hearing, PSR was on maternity leave, which was expected to continue for an additional six months. If MJI’s criminal charges were not resolved at the end of her maternity leave, PSR planned to take a leave of absence from her job in order to supervise MJI.

[21] PSR was very confident that MJI would listen to her since he had been through a traumatic event and MJI was aware that this is his last chance. At the time of the bail hearing, PSR was prepared to pledge $16,000 in support of MJI’s bail.

[22] PSR was asked whether, during her visits to see MJI, she had inquired as to who had shot him on December 18, 2018. PSR indicated that initially MJI had been on medication and was pretty groggy. Once he came off this medication, PSR did not want to bring up such a stressful situation so she had not asked him about it.

[23] In her reasons for ordering MJI’s detention, Her Worship found that the two sureties had been hesitant to tell the court the whole story. Both sureties were very sure that MJI was not in possession of a gun even though they were not aware where MJI was going on the night of the shooting in question. Her Worship also observed that the sureties were of the opinion that MJI had "changed" since the shooting incident, but they had not provided any specifics to the court about what that meant. The Justice of the Peace was also concerned over the fact that OI planned to return to Ethiopia and that OI had told the court that PSR was going to pay the entire cost of the electronic monitoring service, whereas PSR had said she expected assistance from his family to cover the costs.

[24] The Justice of the Peace considered the specific factors relevant to the tertiary ground under s. 515 (10) (c), in the following terms:

The Crown’s case is taken at its highest at this point. I rely on the facts that are in front of me and assess that this is a strong case. The charges are very serious. The allegations are that there was a shoot-out in a public area and, if found guilty, [MJI] would be facing a lengthy sentence.

[25] Accordingly, the Justice the Peace detained MJI on the tertiary grounds.

April 17, 2020 Detention Review Hearing

a. Revised Plan of Release

[26] The revised plan of release put forward at the detention review hearing is a house arrest bail with three sureties, along with electronic monitoring.

[27] In addition to OI and PSR, LSR (who is PSR’s sister) is also proposed as a surety. OI and PSR are prepared to increase the amounts they are pledging in support of MJI’s release, [2] and LSR is prepared to pledge $8000. OI indicates that he is no longer planning to return to Ethiopia and will be available to supervise MJI. PSR is no longer on maternity leave but has secured employment which enables her to work from home. This will enable her to supervise MJI. All three sureties indicate that they will share in the cost of the electronic monitoring of MJI.

b. MJI’s circumstances and concerns over COVID-19

[28] In his affidavit, MJI indicated that he is 29 years old and, prior to his arrest, he had been dividing his time between his parents' place as well as his fiancée's place. He has been detained at Toronto South since February 2019 and has been held in the infirmary due to the injuries he suffered in December 2018.

[29] Although MJI has been recovering slowly from his injuries, his mobility continues to be restricted and he requires the use of a wheelchair or leg brace to get around. Due to his injuries, MJI has a colostomy and he changes the associated ostomy bag multiple times a day. He indicates that there is often a lack of new ostomy bags at Toronto South, which means he has to reuse an existing bag. As a result, he is concerned about the possibility of infection.

[30] MJI requires ongoing physiotherapy in order to regain strength in his leg to allow him to walk. However, due to COVID-19, his recent physiotherapy appointments have been cancelled.

[31] MJI understands that there are inmates who have tested positive for COVID-19 at Toronto South. He believes that they are being housed in the infirmary and that they are being cared for by the same nurses and guards that care for him. This causes him concern since, in addition to his other injuries, he has asthma. MJI states that his asthma was quite severe as a child and that he still has occasional asthma attacks that cause him to have difficulty breathing. In 2018, he had an asthma attack that required him to attend the hospital for treatment. He was prescribed an inhaler around that time. His asthma, in combination with his other injuries, can cause him to become short of breath.

[32] MJI also provided an email from Susan Robinson, a nurse who is involved in his treatment and care at Toronto South. [3] Ms. Robinson states that she sees and talks with MJI on a daily basis. She indicates MJI has always demonstrated polite and appropriate conversation and, in fact, is a role model for social behaviour and often coaches new admissions into the infirmary on proper behaviour and etiquette. MJI has advised Ms. Robinson that he would like to become a peer mentor with the John Howard Society upon his release and she fully endorses this request. Ms. Robinson indicates she will be advocating for him in this regard to the John Howard Society.

c. Expert Evidence Regarding COVID-19

[33] MJI filed an affidavit dated April 7, 2020 from Dr. Aaron Orkin, a physician, epidemiologist and an Assistant Professor in the Department of Family and Community Medicine at the University of Toronto. Dr. Orkin’s research focuses on health equity and vulnerable populations, especially the homeless, drug users and Indigenous communities.

[34] Dr. Orkin has specific expertise on the COVID-19 epidemic. He is the Medical Director of the St. Joseph’s Health Center COVID-19 Assessment Centre. Additionally, as the Population Medicine Lead for Inner City Health Associates, he has a central role in planning and implementing a strategy to respond to COVID-19 among Toronto’s homeless population.

[35] Dr. Orkin’s affidavit outlines the particular risks from COVID-19 for those experiencing incarceration. Dr. Orkin notes that the population health status of people experiencing incarceration is substantially worse than the rest of the public. People experiencing incarceration have higher rates of chronic disease including cardiorespiratory disease, mental health challenges and addiction. This also means that people experiencing incarceration have a higher chance of intensive-care admission or death if they get COVID-19.

[36] Dr. Orkin observes that, since there is no specific treatment or therapy for COVID-19, the central public health strategy undertaken by public health authorities and governments thus far has been social distancing. However, social distancing and overcrowding are mutually exclusive concepts.

[37] Dr. Orkin points out that it is extremely difficult, if not impossible, to implement social distancing in a “congregate living facility” – settings where people live together – such as long-term care facilities, homeless shelters and correctional facilities. Therefore, Dr. Orkin is of the opinion that 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.

[38] In his analysis, Dr. Orkin relied upon a “Technical Briefing” issued by the government of Ontario on April 3, 2020. The Technical Briefing suggests that the peak of the COVID-19 curve in Ontario will occur in mid-April 2020. The Technical Briefing also suggests that by mid-April 2020, there are likely to be over 1000 COVID-19 patients in intensive care in Ontario, far exceeding current available capacity. This will mean that those infected with COVID-19 in correctional facilities will be forced to remain in prison to convalesce, rather than be transferred to other healthcare settings. [4]

[39] The Technical Briefing also indicates that there is a correlation between a person’s age and the severity of the impact of COVID-19. As of April 2, 2020, there were a total of 3255 confirmed cases of COVID-19 in Ontario, of whom 67 have died, a case fatality ratio of 2.1%. [5] However, none of the 945 persons aged 20 to 39 who had contracted COVID-19 have died, whereas 24 of the 821 confirmed cases amongst those aged 60 to 79 (or 2.9%), and 36 of the 226 confirmed cases of those age over 80 (or 15.9%), have died. [6]

[40] Dr. Orkin also reviewed a number of “briefing notes” and “information notes” prepared by the Ministry of Solicitor General (the “Ministry”) in late March 2020, describing measures taken to prevent or limit the spread of COVID-19 in correctional facilities. Dr. Orkin was of the view that, while the measures taken by the Ministry were essential, they would prove insufficient in limiting the spread of COVID-19 in correctional facilities in Ontario.

[41] Dr. Orkin therefore concludes that an aggressive approach should be taken to de-populating correctional facilities in Ontario. This will reduce the risk of infection for both individuals who are discharged from the facilities as well as the people who remain there.

d. Ministry Response to COVID-19

[42] The Crown provided a Ministry information note dated April 14, 2020 (the “April 14, 2020 Ministry Note”) outlining the strategies being implemented to limit the effects of COVID-19 on the inmate population as well as correctional staff. [7]

[43] According to the April 14, 2020 Ministry Note, the Ministry has taken a number of initiatives to reduce the inmate population in provincial institutions, including proactively undertaking a temporary absence review for all inmates in order to determine whether they are eligible for early release. Inmates chosen must be near the end of their sentences and be considered a low risk to reoffend.

[44] The result of this and various other initiatives is that, over a period of approximately four weeks, the inmate population across the province’s 25 Correctional Institutions had been reduced by approximately 29%, from slightly less than 8400 inmates on March 16, 2020 to 5925 inmates on April 14, 2020. This appears to represent the lowest daily inmate count in Ontario’s correctional institutions in over 30 years, [8] made all the more significant by the fact that Ontario’s current population is over 40% larger than it was 30 years ago.

[45] The April 14, 2020 Ministry Note sets out the then-current number of confirmed cases of COVID-19 amongst inmates or correctional staff. As of April 14, 2020, a total of six inmates had tested positive for COVID-19, including three positive cases at Toronto South. There were also four confirmed cases of correctional staff testing positive for COVID-19, including one at Toronto South. If an outbreak of COVID-19 is identified, institution healthcare staff work under the direction of the local Medical Officer of Health to take immediate precautionary containment measures, which may include medical isolation and decontamination of affected areas.

[46] The April 14, 2020 Ministry Note also describes placement options to protect medically vulnerable inmates as well as various actions that have been taken to reduce the risk of introducing COVID-19 into provincial institutions. New inmates are screened when they are admitted to the institution and are placed into a special intake unit where they are kept for a minimum of 14 days and monitored for symptoms before they are moved into the general population. There are also staff screening and visitor screening protocols in effect at all correctional institutions.

[47] Following the detention review hearing, counsel for the parties contacted the court to advise of an outbreak of COVID-19 at the Ontario Correctional Institute (OCI) located in Brampton, Ontario, resulting in the temporary closure of the facility. All 112 inmates previously housed at the OCI have been transferred to Toronto South, where they are being held in three separate locations. Twenty of the OCI inmates have been placed into the Toronto Intermittent Centre; 80 OCI inmates are being housed in single cells on the third floor of the D Tower; while 12 OCI inmates have been placed between Medical Unit A and the infirmary, where inmates exhibiting symptoms of COVID-19 currently reside.

[48] All of the transferred inmates have been tested for COVID-19. As of 12:45 PM on April 21, 2020, 62 have tested positive, 18 have tested negative, and the remaining 32 are awaiting test results.

Positions of the Parties

[49] MJI advances three arguments in support of his position that his detention is no longer justified.

[50] First, MJI asserts that the Justice of the Peace erred in her analysis by giving undue weight to the strength of the Crown’s case, which is entirely circumstantial. MJI argues that while the allegations against him are serious, the Crown’s case cannot to be seen as overly strong. There were no witnesses to the events and no direct evidence that MJI possessed the firearm or discharged it. MJI also argues that the Justice of the Peace erred in her finding that the sureties had been hesitant to tell the court the whole story. MJI argues that there were reasonable explanations as to why the sureties had not spoken with him about who had shot him.

[51] Second, MJI argues that there has been a material change in the bail plan since the original hearing in January 2019. At that time, PSR was on a six-month maternity leave and had indicated that she would take an additional leave of absence from work if required to stay at home with MJI while he was on house arrest. PSR has since secured new employment which permits her to work at home and thus she has the ability to supervise MJI on an ongoing basis. In addition, OI no longer intends to return to Ethiopia and he is able to live with MJI for as long as he is a surety.

[52] Third, MJI argues that the current COVID-19 global pandemic constitutes a material change in circumstances, which warrants a review of his detention. MJI argues that he faces a significantly increased risk of contracting COVID-19 while he is in custody. MJI also argues that due to his ongoing injuries as well as his asthma, he is particularly vulnerable to COVID-19. Considering the significant dangers posed to MJI by COVID-19, he argues that the proposed bail plan is sufficient to address and mitigate any concerns arising under the tertiary ground.

[53] In response, the Crown argues that there was no error in the Justice of the Peace’s original detention decision. The Crown has a strong case, given the fact that the firearm was found less than one foot from MJI’s hand. In fact, the Crown’s case today is stronger than it was at the time of the original bail hearing, since the CFS analysis linking nine of the gun casings to the firearm found beside MJI was not available at that time. The remaining factors relevant to the tertiary ground under s. 515 (10) (c) all argue in favour of MJI’s continued detention. This is an extremely serious firearms offence involving an alleged shootout in a residential neighbourhood. If convicted, MJI can expect to face a very lengthy term of incarceration.

[54] Nor has there been any material change in the proposed plan of release. The two primary sureties are the same as were previously proposed at the initial bail hearing. The new proposed surety, who is the sister of PSR, adds little to the overall ability to supervise MJI.

[55] The Crown does concede that COVID-19 constitutes a material change in circumstances justifying a fresh review of MJI’s detention. The Crown also acknowledges that MJI’s injuries and physical condition make him more acutely vulnerable to COVID-19. Nevertheless, the Crown argues that the risk posed by COVID-19 is just one factor to be taken into account in the analysis of the tertiary ground. Given that all of the other enumerated factors under s. 515 (10) (c) argue in favour of MJI’s continued detention, the COVID-19 pandemic is not sufficient in and of itself to justify his release.

Applicable Legal Principles

[56] As the Supreme Court of Canada outlined in R. v. Myers, the overarching question at a s. 525 hearing is whether the continued detention of the accused in custody is justified within the meaning of s. 515 (10). [9] In considering this question, the judge at the s. 525 hearing should show respect for any findings of fact made by the first level decision-maker if there is no cause to interfere with them. At the same time, the s. 525 judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact on the question of whether his or her continued detention in custody is justified. [10]

[57] As noted above, the Crown does not seek MJI’s continued detention under either the primary or secondary ground and relies solely on the tertiary ground in s. 515 (10) (c), namely, that MJI’s detention is necessary in order to maintain public confidence in the administration of justice.

[58] In assessing whether an accused’s detention is necessary to maintain confidence in the administration of justice, s. 515 (10) (c) requires the court to have regard to four circumstances in particular:

i. the apparent strength of the prosecution’s case; ii. the gravity of the offence; iii. the circumstances surrounding the commission of the offence, including whether a firearm was used; and iv. the fact that the accused is liable on conviction for a potentially lengthy term of imprisonment.

[59] The leading case on the application of the tertiary ground for detention is R. v. St. Cloud, [11] where Wagner J. (as he then was) held that even if all four of these enumerated circumstances support a detention order, detention of the accused should not automatically follow. The four listed circumstances are simply the “main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country.” [12] Other circumstances which Wagner J. identified as being relevant include the personal circumstances of the accused, including his age, criminal record, and physical or mental condition.

[60] No single circumstance is determinative. The justice must consider the combined effect of all of the circumstances relevant to each particular case in determining whether detention is justified in order to maintain public confidence in the administration of justice. [13]

Analysis

a. Did the Justice of the Peace Err in her analysis of the Tertiary Ground?

[61] MJI asserts that the Justice of the Peace erred by giving undue weight to the strength of the Crown’s case, and by inappropriately assessing the evidence of the two sureties.

[62] I would not give effect to these objections. Although the Crown’s case is entirely circumstantial, I agree with the Justice of the Peace that it is a strong case. A firearm was found less than a foot away from MJI’s hand, hidden under some leaves. The obvious inference from those circumstances is that MJI was in possession of the firearm. Moreover, the CFS has determined that nine casings found nearby were fired from that particular firearm. If MJI had possession of the firearm, it follows that he must also have discharged it.

[63] In her submissions, counsel for MJI suggested that someone else may have discharged the firearm and then thrown it over the fence, where it landed beside MJI. Counsel pointed to the fact that there were six bullet casings found in the adjoining yard near to where MJI was found by the police. Thus, someone may have shot MJI from close range and then discarded the firearm by tossing it over the fence into the area where MJI was lying wounded.

[64] However, as the Crown points out, the bullet casings near to MJI were fired from a different (and as-yet unidentified) firearm. The firearm that was found lying beside MJI had been fired some distance away, between 104 and 106 Crittenden Square. It seems highly improbable that someone could have discharged the firearm from this location and then thrown it across the yard, such that it landed in the narrow space where MJI was lying, less than a foot from his hand. Even more improbable is that the firearm would then become covered in leaves. I would further observe that there is nothing in the record to support this suggested scenario.

[65] Nor would I interfere with the Justice of the Peace’s finding that the two sureties who testified at the bail hearing were not candid or entirely forthcoming in their evidence. These are findings of credibility that the Justice of the Peace are entitled to make and which are entitled to deference. Her Worship’s other concerns with the plan of release find ample support in the record.

[66] I therefore find that the Justice of the Peace did not err in her analysis of the tertiary ground.

b. The Revised Plan of Release

[67] I agree with MJI that the revisions to the plan of release address some of the shortcomings identified by the Justice of the Peace. In particular, the fact that OI is no longer planning to return to Ethiopia, and that PSR has secured employment which enables her to work from home, add credibility to the plan of release.

[68] Nevertheless, in my view the proposed plan is in large measure similar to that put forward earlier. The two primary sureties are the same, which means that the concerns of the Justice of the Peace regarding their candour remain. The addition of the third surety, PSR’s sister, LSR, does not appear to add any meaningful oversight. LSR’s affidavit does not explain how she knows MJI or why it would be reasonable to expect that MJI would accept her supervision.

[69] I therefore find that, although the modifications to the plan of release are helpful, they are not sufficient, in and of themselves, to satisfy the concerns identified by the Justice of the Peace at the initial bail hearing.

c. The COVID-19 Pandemic

[70] There is now a substantial body of jurisprudence from this court finding that the COVID-19 pandemic constitutes a material change of circumstances which must be taken into account in assessing whether an individual’s detention is justified. [14] This is particularly the case in relation to those detained solely or principally on the tertiary ground in s. 515 (10). Where there are no identifiable concerns under either the primary or secondary grounds, and where an accused is at risk of becoming severely ill or dying should they contract the virus, reasonable members of the public might well find that the accused’s release from custody would not in any way undermine confidence in the administration of justice.

[71] I accept the expert opinion of Dr. Orkin that inmates in correctional facilities in Ontario face a significantly increased risk of contracting COVID-19. I further accept his conclusion that it is therefore desirable to aggressively reduce the inmate population in the province’s correctional facilities. Indeed, the Ministry appears to have adopted this very approach, since a central element of its strategy in response to the pandemic has been to significantly reduce the inmate population. I would further observe that the Ministry appears to have acted proactively and put in place a series of protocols which have had the effect, so far at least, of limiting the spread of COVID-19 in Ontario’s correctional facilities. Notwithstanding this success thus far, it is undeniable that this could change at any time and the ongoing risk that inmates will contract the virus remains significantly higher than in the general population. In fact, the fluidity of the situation is illustrated by the sudden outbreak of COVID-19 at the OCI and the transfer of at least 62 inmates who have contracted COVID-19 to Toronto South.

[72] This is not to suggest that the framework for analysis established by s. 515 (10) (c) ceases to apply as a result of COVID-19. As Wagner J. noted in St. Cloud, no single factor is determinative in the analysis under the tertiary ground. Just as it would be inappropriate to ignore the clearly relevant circumstance of the COVID-19 pandemic, it would equally be in error to automatically release an inmate simply because they, reasonably, have identifiable concerns over contracting the virus. What is required, instead, is a careful balancing of the relevant circumstances, including but not limited to those identified in s. 515 (10) (c), having regard to the particular circumstances of the accused.

[73] How should these various considerations be taken into account in determining whether MJI’s continued detention is necessary in order to maintain public confidence in the administration of justice?

[74] The starting point of the analysis is that the circumstances which led the Justice of the Peace to detain MJI continue to apply. The Crown has a strong case, the offences with which he is charged are extremely serious crimes of violence involving firearms, and he is likely facing a substantial jail term if convicted.

[75] On the other hand, there are a number of factors which would tend to support his release from custody.

[76] First, MJI remains seriously injured some 16 months after sustaining life-threatening gunshot wounds. He is unable to walk unassisted and requires the use of a wheelchair or leg brace. He has a colostomy that prevents his bowel from functioning normally in which the ostomy bag must be attended to multiple times during the day. He has reasonable concerns regarding the possibility of infection, as he had a number of complications due to infections after his surgeries in December 2018 and January 2019.

[77] It is evident that, if MJI is released, he is not in a position to commit any further crimes, nor will he pose a threat to the public. [15] He will be dependent upon his sureties to assist him in the tasks of daily living. It can therefore reasonably be expected that he will cooperate with them and follow their instructions. I am further fortified in this conclusion by the observations from the infirmary nurse at Toronto South to the effect that MJI has been a role model for other prisoners.

[78] The Crown has conceded that MJI has enhanced vulnerability to COVID-19. MJI suffers from asthma and, in combination with his injuries, has experienced shortness of breath. If he were released, his risk of contracting COVID-19 would be significantly reduced. He would also be able to resume the physiotherapy, which he requires to regain his ability to walk. It is also possible that he could arrange for the surgery required to close his colostomy, which has been postponed due to the impact of COVID-19 on Toronto South.

[79] Ultimately the question to be determined is whether, in these circumstances, MJI’s continued detention is necessary to maintain confidence in the administration of justice.

[80] I find that a reasonable person, informed of the relevant circumstances, would not have their confidence in the administration of justice undermined by MJI’s release from custody. MJI will be under house arrest and largely confined to a wheelchair. He has enhanced vulnerability to COVID-19. Releasing him from custody will not only reduce his risk of contracting the virus, it will also enable him to address his ongoing physical injuries more effectively.

[81] I therefore find that MJI has met his onus under s. 515 (10) and should be released on the terms set out below.

Disposition

[82] I order MJI released on bail on the following terms, subject to adjustment in light of further submissions from counsel:

a. MJI shall be under the supervision of three sureties, PSR, OI, and LSR, who will pledge the following amounts (PSR – $20,000; OI – $10,000; LSR – $8000) b. MJI shall reside with PSR at her residence; c. MJI shall remain in PSR’s residence at all times except when in the direct presence of one of his sureties, for medical emergencies, or to attend court; d. MJI will be subject to a GPS monitoring system administered by Recovery Science Corporation, and the monitoring system shall be functioning and effective within 48 hours of his release; e. MJI will keep the peace and be of good behavior; and f. MJI will not possess any weapons as defined by the Criminal Code.

P. J. Monahan J.

Released: April 23, 2020

Footnotes

[1] MJI is charged with reckless discharge of a restricted firearm, contrary to s. 244.2 of the Criminal Code. In addition, at the time of the alleged offences, he was subject to weapons prohibition orders issued under s. 109 of the Criminal Code.

[2] OI is increasing his pledge from $7000 to $10,000, while PSR is prepared to increase her pledge from $16,000 to $20,000.

[3] The Crown did not object to the admissibility of this email.

[4] These projections of expected utilization of hospital sources and ICU beds for COVID-19 patients in Ontario were revised downward on April 20, 2020. See Government of Ontario, COVID-19: Modelling and Potential Scenarios (April 20, 2020): https://files.ontario.ca/moh-COVID-19-modelling-potential-scenarios-en-2020-04-20.pdf.

[5] See Technical Briefing, p.4.

[6] Note that these figures are updated each day through a “Daily Epidemiological Summary” published by the Government of Ontario. These updated summaries continue to reflect the correlation between a person's age and the severity of virus' impact. See https://www.ontario.ca/page/2019-novel-coronavirus.

[7] This April 14, 2020 Ministry Note updates and expands upon prior versions examined by Dr. Orkin in the preparation of his April 7, 2020 affidavit.

[8] See R. v. MK, 2020 ONSC 2266 at para 38.

[9] R. v. Myers, 2019 SCC 18 ("Myers") at para 46.

[10] Myers, at paras 48 to 49.

[11] 2015 SCC 27 ("St. Cloud").

[12] St. Cloud, at para 69.

[13] St. Cloud, at para 87.

[14] See, for example, R. v. J.S., 2020 ONSC 1710; R. v. T.L., 2020 ONSC 1885; R. v. T.K., 2020 ONSC 1935; R. v. Rajan, 2020 ONSC 2118; and R. v. Williams, 2020 ONSC 2237.

[15] While this consideration is the focus of the secondary ground, the secondary and tertiary grounds do not operate as watertight compartments and factors may be relevant under both grounds: see R. v. Dang, 2015 ONSC 4254 at para. 58. I find that MJI’s weakened physical condition, which effectively precludes him from committing further crimes, is relevant in assessing whether public confidence would be undermined by his release. In the circumstances of this case, it is an appropriate consideration under the tertiary ground.