COURT FILE NO.: 112/20BR
DATE: 2020/04/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
-and-
Jack Nguyen
Applicant
Konrad de Koning, for the Crown
Jenny Prosser, for the Applicant
HEARD: April 21, 2020 via audio-conference
GEORGE J.
[1] The Applicant is charged with possessing a firearm while prohibited, impaired driving, driving over .80, possessing a restricted firearm without a license, occupying a vehicle while knowing it contained a restricted firearm, unauthorized possession of a loaded restricted firearm, and criminal harassment. These charges are currently scheduled for a preliminary hearing on July 15, 2019. He is also charged with possessing cocaine, breach of probation, and breaching a recognizance. His counsel advises that she has attempted to set a trial date for these matters but, because of Covid-19 and the curtailment of court operations, she has been unable to do so.
[2] The alleged offence date is April 4, 2019. The Applicant has been in custody since then, now in excess of a year.
[3] The Applicant has an extensive criminal record that dates back to 2008. I am not going to reproduce it in its entirety but here are some highlights. There are multiple breaches, both of bail and probation. Of particular note are two convictions for robbery, both from 2014, for which he received a one year jail sentence; a conviction for use of an imitation firearm during the commission of an offence from 2014, for which he received an 18 month sentence; and three spousal convictions, one from 2017 for which he received 90 days jail, and three from 2018 for which he received 18 months of probation.
[4] On December 24, 2019, after a show cause hearing, the Applicant was denied bail. He was in a reverse-onus situation. The presiding Justice of the Peace determined that he had not met his onus and detained him on the secondary ground. There were no concerns on the primary ground and while the tertiary ground was raised the court did not address it. The Applicant now seeks a review of that detention order pursuant to s. 520(1) of the Criminal Code. He is also before the court on a 90-day Detention Review pursuant to s. 525.
[5] On April 21, 2020 I received evidence and heard argument on this application. At its conclusion I granted bail on the following terms:
i) The Applicant must promise to pay $2000.00 should he fail to comply with any condition of this Order.
ii) Three sureties in the following amounts with no deposit:
Jennifer George - $1000.00
Mary Kearley - $500.00
John Kearley - $500.00
iii) And subject to these conditions:
a. Reside with his grandparents Mary and John Kearley at 301-2230 Trafalgar St., London, Ontario absolutely and be amenable to the routine and discipline of that home;
b. Obey a curfew by remaining in his residence at all times except:
i) For medical emergencies,
ii) While in attendance at AA meetings or individual counselling sessions, so long as one of his sureties takes him there and picks him up,
iii) While in attendance at a residential treatment facility,
iv) While in the presence of either of his grandparents, or
v) While in the presence of Jennifer George, between the hours of 9am and 5pm only.
c. Not to possess firearms or any weapons as defined by the Criminal Code;
d. Not possess or ingest drugs except in accordance with a medical prescription;
e. Not associate or communicate, either directly or indirectly, with any of Crystal Drennan, Tiffany Reznik, or Justin Ninham-McConnell;
f. Not attend within 25 meters of any of these individuals;
g. Not attend within 200 meters of any known place of residence, education or occupation of these individuals; and
h. Not attend at or within 200 meters of 22-730 Deveron Crescent, London, Ontario.
[6] I promised counsel that written reasons would follow. Here they are.
[7] Section 520(1) provides that:
If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.
[8] After a hearing under this section the court must either dismiss the application or, if the applicant shows cause, allow the application, vacate the previous order, and make any other order under s. 515. This is often referred to as a Bail Review.
[9] Section 525(1) directs the person having custody of an accused pending trial to apply to a judge for a hearing to determine whether or not their continued detention is necessary. We often call this a 90-day Detention Review.
[10] As indicated, I am considering both sections.
[11] I will start with the Bail Review. The Applicant submits that the Covid-19 outbreak, the vulnerability of inmates in institutional settings, and current inability to set trial dates, collectively, represents a material change in circumstances. Should I agree and so find, I can then consider bail anew and make an order under s. 515.
[12] He also submits that the Justice of the Peace erred in his analysis under the secondary ground. A finding that an error was committed would also permit me to treat this hearing as a bail de novo. However, having concluded that there has been a material change in circumstances there is no need to address this.
[13] Before setting out my reasons for releasing the Applicant I will explain why I believe there has been a material change. This was the main point of contention.
[14] Since the beginning of the Covid-19 outbreak there have been several cases addressing this issue. Some of my colleagues have held that, absent evidence that an accused suffers personally from an underlying health issue or has a compromised immune system, this cannot represent a material change. This belief seems to be, in part, grounded in the steps correctional institutions have taken to curb the transmission which has, at least to this point, limited the number of cases amongst inmates.
[15] This view, which the Crown shares, seems to conflate two issues – whether there has been a material change (which is a threshold issue) and whether the elevated risk to inmates generally (which must surely be the case and is a fact I am prepared to take judicial notice of) should impact upon and be considered when addressing either the secondary or tertiary ground.
[16] The Superior Court decision of R. v. Jeyakanthan, 2020 ONSC 1984 illustrates my point. At paras. 27 and 28 the judge writes this:
I accept, and the Crown concedes, that Covid-19 is a material change to be considered in this application.
However, I do not agree, as set out in R. v. J.S., 2020 ONSC 1710 (at para. 18), that “…the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.” I also do not agree with the conclusions drawn by the judge in that case as set out in paragraph 19 as follows:
I take notice of the fact, based on current events around the world, and in the province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S’s own health, but also the preservation of scarce resources to treat patients. If more people are infected, those resources will be more strained.
- With respect, these are conclusions based on speculation and not on evidence.
[17] While I do not agree that the analysis and ultimate conclusion expressed in J.S. is based on speculation – in my view the passage Jeyakanthan cites from J.S. is a sound conclusion based on common sense – I might be able to agree with the overarching point which is, while Covid-19 is a material change (which merely opens the door to a reassessment of bail) it likely does not impact directly upon the tertiary ground. Having said that, I am not entirely certain, especially in light of Trotter J.’s decision in R. v. Morgan, March 31, 2020, Docket # M51470 (C67536) where, at para. 10, he writes this:
The sticking point relates to the public interest ground in s. 679(3)(c). Very fairly, Mr. Fawcett [the Crown] acknowledges that the balancing of reviewability and enforceability considerations discussed in R. v. Oland, 2017 SCC 17 favours release, especially in light of the Covid-19 pandemic. However, he submits that the appellant has not discharged his onus on the public safety component of s. 679(3)(c).
[18] While I hold out the possibility I might be misreading the above, it seems to support the idea that the Covid-19 pandemic is a relevant consideration on the tertiary ground.
[19] In any case, for our purposes what is more important is Trotter J.’s comments at para. 11 where he writes this:
On behalf of Mr. Morgan, Mr. Gourlay accepts that factors relevant to Covid-19 apply only to the public confidence aspect of s. 679(3)(c), and not to public safety considerations. And while he acknowledges that Mr. Morgan presents some risk of re-offending, he submits that the risk is not substantial. Moreover, Mr. Gourlay submits that, if Mr. Morgan is not released, he may end up serving his sentence before his appeal is heard…
[20] Trotter J., while reiterating the point that the pandemic is relevant to the public confidence aspect of, in that case s. 679(3)(c) – which, by extension, likely includes s. 515(10)(c) - comes to the conclusion that it is irrelevant to the question of public safety which is what the secondary ground seeks to protect. The public safety point makes perfect sense as the need to protect the public from a dangerous individual must be assessed separately from Covid-19 and its impact upon a particular inmate or the inmate population in general. These are indeed two, unrelated, issues.
[21] Back to whether the pandemic represents a material change. I do not agree that, short of evidence that an accused has a compromised immune system or is particularly susceptible to the disease, Covid-19 is irrelevant.
[22] I believe it is necessary to draw a clear line between the threshold question of whether there has been a material change in circumstances since the making of a detention order, and whether Covid-19 impacts upon the secondary ground.
[23] I agree with the Crown in one sense. Covid-19 is not a get out of jail free card. Its mere existence does not merit a release. However, and with all due respect to my colleagues who have found otherwise, I refuse to distill the relevance of Covid-19 down to a consideration of an inmate’s particular condition and underlying health issues. While correctional institutions have made efforts to limit the risk of transmission, we must be mindful of these realities: First, there are, in all likelihood, asymptomatic carriers of Covid-19. Second, no inmate, regardless of their condition, can self-isolate or exercise physical distancing in the way we all can in our homes. Third, while courts can modify operations, while some people can work remotely, while non-essential businesses can be shuttered, and while we can all make the decision to stay a safe distance from anyone who does not live in the same home as us, inmates cannot. Inmates do not chose what range they will be placed on; who they share a cell with; and of course correctional officers come and go from the community and their homes and routinely attend within dedicated inmate areas. They cannot purchase hand sanitizer, gloves, or masks. In most cases they cannot even shower in privacy.
[24] Some might say that I am endorsing the availability of a de novo hearing for every remand prisoner who was ordered detained before the Covid-19 outbreak. And to be clear, I am. That is not to say they must all be released now but surely they are entitled to a fresh consideration of their status given this unprecedented crisis. And if this presents an opportunity for an accused to offer an enhanced bail plan, different from what they proposed at their first bail hearing, then so be it.
[25] The point I am attempting to make is this: To conclude that Covid-19 is not a material change is to say, in effect, that it would not have been a relevant consideration when bail was addressed in the first instance. But the reality is, had there been a pandemic then, of course it would have been relevant, as it should be now.
[26] Given my finding that there has been a material change in circumstances, I can consider the issue of bail afresh.
[27] The primary ground continues to be a non-factor. There is no reason to believe that the Applicant will not attend court if released. Furthermore, while the secondary ground remains the central focus, I must also address the tertiary ground which is where I will start.
[28] Section 515(10)(c) provides that:
For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
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 or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[29] The tertiary ground is not a residual ground, only to be considered after the first two grounds have been rejected. Nor is it to be interpreted narrowly or used sparingly. It is not reserved for exceptional circumstances. That said, it does require an assessment of how the reasonable person - who is properly informed about the legislative provisions and who understands Charter values and the actual circumstances of the case - would view the matter of bail for a particular accused. Would that person believe this accused’s release would bring the administration of justice into disrepute? If released, would that person lose confidence in the system? This hypothetical person is not a legal expert nor an online troll who routinely spouts nonsense.
[30] In this instance, as is often the case, many of the enumerated factors seem to warrant detention. A firearm was found and the circumstances surrounding the commission of the offence are concerning. That said, there is no hard and fast rule that the presence of a gun or weapon automatically satisfies the tertiary ground. In fact, no single circumstance is determinative. This requires a balancing of all the relevant factors which, in this case, leads me to reject it as a ground for detention. A reasonable person - who has at least a working knowledge of our bail regime and who is not prone to being overcome by emotion nor fuelled by bias, and after a consideration of the Applicant’s bail plan - would not lose confidence in the administration of justice were he released.
[31] Now the secondary ground. Under s. 515(10)(b) bail can be denied when necessary for the protection or safety of the public having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.
[32] The question is not whether all risk of reoffending can be avoided but whether the bail plan being proposed is sufficient to abate that risk. In our case this requires a careful assessment of the Applicant’s proposal. His girlfriend, and grandparents, each filed an affidavit and testified at the hearing. I find that they will approach the job of surety seriously and are committed to ensuring the Applicant follows the rules, failing which they will call the police. I have no doubt about that.
[33] This is an extensive plan that has the Applicant in his grandparent’s residence at all times but for a few exceptions. Furthermore, while the amount of this bail order may on the face of it seem small, for these folks it is substantial. They are all of limited means. While $500.00 may be a paltry sum for many, for the Applicant’s grandparents it is significant and at the highest end of what they can afford. We must remember that bail is not reserved for the wealthy.
[34] This is a reverse onus situation, and I find that the Applicant has met his onus. As such, I see no need to address the issues raised under s. 525.
[35] It is for these reasons that the Applicant’s request for bail is granted.
Justice Jonathon C. George
Released: April 22, 2020
COURT FILE NO.: 112/20BR
DATE: 2020/04/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
-and-
Jack Nguyen
Applicant
REASONS FOR DECISION
George J.
Released: April 22, 2020