COURT FILE NO.: CR-19-32 BR DATE: 20200424 CORRECTED DATE : 20200424 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – C.O. Defendant

Counsel: Jennifer Armenise for the Crown Alison Craig for the Defendant

HEARD: April 22, 2020

Corrected Ruling: The text of the original Ruling was corrected on April 24, 2020 and the description of the correction is appended.

Ruling on Bail Review Application

BOSWELL J.

[1] C.O. was charged on July 19, 2018 with assaulting and sexually assaulting a female who I will refer to as J.R. He is also charged with breaching the terms of a probation order. The offences are alleged to have occurred on June 24, 2018. C.O. turned himself in to the police on July 19, 2018. He has been in custody since that time.

[2] C.O. initially elected not to seek bail and consented to his detention. His trial in this court was scheduled to commence April 27, 2020. On March 17, 2020, however, the normal operations of this court were suspended by order of Chief Justice Morawetz in the face of the COVID-19 pandemic. It is unclear when C.O.’s trial will proceed.

[3] C.O. applies today for a review of the consent detention order and asks that he be granted bail. The Crown opposes his release based on concerns about the safety of the public.

[4] The detention review was conducted by telephone conference with C.O.’s consent. C.O. was able to participate in the telephone conference from the Central North Correctional Centre.

The Governing Principles

[5] Any application for interim judicial release must be conducted with the following overarching principle in mind: pretrial detention is the exception, while the earliest possible release, on the least onerous terms, is the default presumption. See R. v. St-Cloud, 2015 SCC 27; R. v. Antic, 2017 SCC 27; and R. v. Myers, 2019 SCC 18. This overarching principle is animated by the presumption of innocence and the constitutional right not to be denied reasonable bail without just cause.

[6] Just cause to deny bail arises in only a narrow set of circumstances. Specifically, where denial of bail is “necessary to promote the proper functioning of the bail system”: R. v. Pearson, [1992] 2 S.C.R. 665 at para. 58; R. v. Antic, as above at para. 40.

[7] Parliament has, in s. 515(10) of the Criminal Code, identified three circumstances in which bail might be denied in order to promote the proper functioning of the bail system. These circumstances are, by convention, referred to as the primary, secondary and tertiary grounds. They have been held to be constitutionally compliant. See R. v. Morales, [1992] 3 S.C.R. 711 and R. v. Hall, 2002 SCC 64.

[8] It is axiomatic that the bail system malfunctions when accused persons on bail fail to show up for their scheduled court appearances. The primary ground for denying bail reflects concerns about the potential for those on release to abscond.

[9] It is equally clear that the bail system malfunctions when accused persons on bail commit further offences. The secondary ground for denying bail reflects concerns about the safety of the public.

[10] Finally, there may be some circumstances where pre-trial release would tend to undermine the public’s confidence in the administration of justice. The tertiary ground is concerned with the maintenance of that confidence.

[11] In this case, a detention order has already been made, on consent. Section 520(1) of the Criminal Code provides that an accused person who has been detained may apply at any time before trial for a review of a detention order.

[12] The court does not, however, have an open-ended power to review a detention order. The Supreme Court directed, in R. v. St. Cloud, as above, that the power to review an existing detention order may only be exercised in three situations: (1) where there is admissible new evidence; (2) where the reasons for the detention order contain an error in law; or (3) where the detention order is clearly inappropriate.

[13] If the accused satisfies the court that it has jurisdiction to conduct the review, then the onus shifts to the Crown to satisfy the court that detention should be continued on one or more of the primary, secondary or tertiary grounds. In some instances, known as reverse-onus cases, the accused bears the burden of establishing that detention should not be continued. Counsel in this case are agreed that this is a Crown onus case.

[14] Section 515 of the Criminal Code requires that judicial officers conducting bail hearings adhere to the ladder principle. The ladder principle requires that accused persons be granted bail on terms no more onerous than necessary.

[15] In R. v. Antic, as above at para. 67, the Supreme Court provided explicit direction regarding the manner in which contested bail hearings should be conducted. Their instructions include the following:

(a) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1);

(b) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, release is favoured at the earliest reasonable opportunity and … on the least onerous grounds. This principle must be adhered to strictly;

(c) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention;

(d) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms;

(e) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

The Parties’ Positions

[16] C.O. argues that this court has jurisdiction to review the detention order based on admissible new evidence. He points to three material changes in circumstances: (1) a new proposed surety; (2) the dangers that the COVID-19 pandemic pose to inmates in remand facilities; and (3) the impact COVID-19 has had on the circumstances of his detention.

[17] C.O. presents a stringent plan of release. He proposes to reside with a surety under house arrest. His surety will pledge the sum of $10,000. He will reside full-time with the surety and not leave her residence unless in her company.

[18] The Crown is not persuaded that C.O.’s plan of release is sufficient to attenuate concerns about the danger he poses to public safety. C.O. has a lengthy criminal record, which includes some very serious offences. He is almost sixty years old, but apparently continues to live an anti-social lifestyle. The proposed plan of release is not stringent enough to guard against the commission of further offences.

Discussion

Material Changes in Circumstances

[19] I am satisfied that there are material changes in circumstance that support the court’s jurisdiction to conduct a review of C.O.’s detention.

[20] First, he now has a surety plan of release, which he did not have at the time the detention order was made.

[21] Second, the COVID-19 pandemic, and the risk it poses to inmates of correctional institutions, has been recognized as a material change in circumstances. See, for instance, R. v. J.S., 2020 ONSC 1710 and R. v. Paramsothy, 2020 ONSC 2314.

[22] Finally, I am satisfied that the combination of the pandemic and the suspension of the court’s operations constitutes a material change in circumstances. In particular, the response by the Ministry of the Solicitor General to the pandemic has included the suspension of personal visitation for inmates for an indefinite period. I have no direct evidence about how that suspension may impact C.O. specifically, but I readily infer that it will impact many inmates negatively and increase stress and tension in remand facilities.

[23] C.O.’s trial was scheduled to commence on April 17, 2020 and last for one week. His charges would have been disposed of, one way or another, in the very near future. Given the suspension of court operations, it is unknown when his trial will proceed. It is highly likely that it will not be before July, 2020. By then C.O. will have two years of pre-trial “dead time” in custody. Pursuant to the principles in R. v. Summers, 2014 SCC 26, C.O. will likely receive a credit for that dead time based on a multiple of 1.5 days for each day served. In other words, he will have the equivalent of three years dead time. He may well be entitled to enhanced credits for particularly harsh conditions of his pre-trial custody pursuant to the principles of R. v. Duncan, 2016 ONCA 754. All of this is to say that his pre-trial custody may arguably become disproportionate to any sentence imposed on him should he be convicted of one or more of the charges he now faces.

Secondary Ground Concerns

[24] The Crown’s position is that C.O. should continue to be detained on secondary ground concerns. They argue that he poses an unacceptable risk to public safety if released.

[25] Detention is warranted on the secondary ground where necessary for the protection or safety of the public, including any victim of or witness to the offence. To reach such a conclusion, the court is directed to look at all of the surrounding circumstances, including any substantial likelihood that the accused will re-offend or interfere with the administration of justice if released.

[26] The “substantial likelihood” threshold does not require the court to make exact predictions about future dangerousness: see R. v. Morales as above. It is essentially a slightly enhanced balance of probabilities standard.

[27] The assessment of the likelihood of re-offence or interference with the administration of justice, and of the protection of the public more generally, requires a consideration of a cluster of factors. The nature of the offence, the criminal record of the accused, the strength of the Crown’s case and whether the accused was already on bail or probation at the time of the alleged offence(s) are all relevant considerations: see R. v. K.D., [2006] O.J. No. 2616 (S.C.J.) and R. v. Vairavanathan, [2006] O.J. No. 3053 (S.C.J.).

[28] If the court concludes that public safety is at risk, and/or that there is a substantial likelihood of re-offence or interference with the administration of justice, then the issue will be what terms of release will adequately address the secondary ground concerns. If the court is of the view that a surety release is necessary, then the accused bears the onus to satisfy the court that the proposed sureties and their plan of supervision will sufficiently reduce the risks posed by release.

[29] I will consider some of the relevant secondary ground factors in turn.

The Nature of the Offence

[30] The offences – assault and sexual assault – are serious. The alleged particulars of the offences speak to a sudden, unprovoked, vicious and degrading attack by C.O. against J.R.

[31] The complainant, J.R., gave a videotaped statement to the police in which she outlined the circumstances of the offences. The following is a synopsis of her statement.

[32] She told the police that she had attended a bonfire in the backyard of a neighbour’s home on June 24, 2018. The home is associated with one or more members of the Hells Angels Motorcycle Club. C.O. attended the bonfire. She was familiar with C.O.

[33] At about 9:30 p.m., J.R. left the bonfire and went home. C.O. followed her there. She was in the garage of her residence. He came in. He closed the door. He was agitated. He began to talk about wanting to hurt someone. She replied that if he wanted to hurt someone, then to hit her. She was surprised when he did. He struck her in the face as many as three times. Her face was red and swollen. Her ears were ringing.

[34] C.O. wanted her to perform fellatio on him. She refused. He threw her against her car. He grabbed her and pulled her pants and underwear down. She pleaded with him not to do this. At some point she threw up onto her car. C.O. attempted to penetrate her vagina with his penis from behind her. He was unsuccessful. He reached around and digitally penetrated her vagina. She struggled. He let go of her and she ran around behind her car. C.O. pulled up his pants. He said he wanted a hug. She asked him to leave and he did.

The Strength of the Crown’s Case

[35] From my vantage point, it is not reasonably possible to assess the strength of the Crown’s case. Obviously, the likelihood of a conviction depends on the credibility and reliability of J.R.’s testimony. Without the benefit of hearing her evidence and the cross-examination on that evidence, I am unable to comment about the strength of the case against C.O. I can only observe that C.O. is facing very serious charges involving egregious violence.

C.O.’s Criminal Record

[36] C.O. has an unfortunate and, in at least one respect, unusual criminal record.

[37] The record is long and full. It begins in 1978 with a conviction for theft under $200. In February 1980, C.O. got his introduction to the penitentiary system as a result of convictions for armed robbery and unlawful use of a firearm. Other convictions followed in the early 1980’s for theft, possession of stolen property, fail to appear and being unlawfully at large.

[38] There is a gap in C.O.’s record between 1983 and 1991. In November 1991 he was convicted of sexual assault and breach of recognizance and sentenced to twelve months in custody and two years probation.

[39] There is another gap between 1991 and 2004 when C.O. was convicted, for a second time, of sexual assault. He was also convicted of administering a noxious substance with intent to commit an indictable offence. A three year sentence was imposed.

[40] Arguably the most serious offences on C.O.’s record arose in 2008 with convictions for manslaughter and aggravated assault. C.O. was sentenced to seven years and six years respectively, to be served concurrently.

[41] For obvious reasons, a gap in C.O.’s record followed. But in 2016, now at age 54, C.O. was convicted of assaulting a police officer and causing bodily harm, uttering threats and breach of recognizance. He was sentenced to 45 days in custody and three years probation.

[42] The unfortunate nature of C.O.’s record is obvious. The unusual aspect of it is the tenacious nature of C.O.’s criminality. That he has persisted in committing offences well into his sixth decade of life is both uncommon and unsettling.

[43] Finally, I note that C.O. was on probation at the time of the alleged offences. One of the conditions of his probation was that he not be outside of the City of Toronto without notifying his probation officer 24 hours in advance. The location of the alleged offences is Barrie. C.O.’s probation officer advised the police that C.O. never reported to him any intention to leave the City of Toronto.

[44] In my view, there is a substantial likelihood that C.O. will commit offences if released on bail. I say that primarily because of his demonstrated dedication to serious criminality over a forty year period. His commitment to the social contract is very much in doubt. His record reflects dishonesty, indifference to the suffering of others at his hands, selfishness and a lack of respect for court orders. C.O. has not had a positive impact on society and nothing in his background suggests that he is ever likely to.

[45] In the circumstances, it is incumbent upon C.O. to satisfy the court that he has a release plan in place that will attenuate the risks he poses to public safety.

The Plan of Release

[46] C.O., or at least his counsel, recognize that this is a case where it would be inappropriate to release C.O. on his own undertaking or recognizance. That recognition is manifested in his original consent to a detention order. Frankly, in the circumstances, it is unnecessary to work my way up the ladder to a recognizance with a surety, since C.O. recognizes that a stringent release plan is necessary and has offered one.

[47] The plan proposed by C.O. is that he will live with his surety, J.N., in her home in Toronto. He will be on a 24 hour house arrest. He will be confined to J.N.’s residence and will only be permitted out of the residence when in J.R.’s company, save perhaps for medical emergencies.

[48] J.N. is 38 years old and a family friend of C.O. She holds an important administrative position with Covenant House in Toronto. Covenant House is a well-known service provider to homeless and at-risk youths.

[49] C.O. lived with J.N. and her two children – now ages 16 and 13 – at her home in Toronto for about 18 months immediately prior to his arrest on the index charges. She testified that she had certain house rules that he needed to comply with and she said, without hesitation, that he followed all of the rules she imposed. To be fair, these were not onerous rules. They consisted of keeping his space clean, taking out the trash and not smoking indoors. Still, he did follow them.

[50] J.N. is presently working from home as a result of the pandemic. She has recently been advised that she will be working from home until at least September 2020. She is available, in the result, to provide 24/7 supervision of C.O. Should it ever reach the point where she is back working outside of the home while still acting as C.O.’s surety, she will maintain contact with C.O. by telephone when she is out of the home. Should he not respond, she says she will not hesitate to contact the police.

[51] J.N. testified that she is not concerned about the dynamics of having C.O. in her home. She is not concerned about any risks posed to her children. C.O. has already lived with them for 18 months and she said he has a good relationship with the children.

[52] In my opinion, anyone would be naïve to have faith in C.O. He has long ago burned through any goodwill that he might have been afforded. On the other hand, I found J.N. to be a sincere and reliable witness. She is far from naïve and I suspect not easily fooled. As she noted, she has access to a wide range of social services to lean on for assistance and services. She will not be reliant on faith in C.O.

COVID-19 Concerns

[53] Everyone is aware of the significant challenges that COVID-19 poses to individual health and to the health care system as a whole.

[54] Many judges have now weighed in on the threat that COVID-19 poses to inmates in prison populations. See, for instance, R. v. Kazman, 2020 ONCA 251, R. v. J.S., as above, R. v. Paramsothy, as above, R. v. Nelson, 2020 ONSC 1728, R. v. T.L., 2020 ONSC 1885, R. v. T.K., 2020 ONSC 1935, R. v. Jeyakanthan, 2020 ONSC 1984, R v. Rajan, R. v. Cain, 2020 ONSC 2018, R. v. Phuntsok, 2020 ONSC 2158, R. v. Budlakoti, [2020] O.J. No. 1352, and R. v. Greaves, 2020 ONSC 2361 to name a handful.

[55] On the whole, judges have recognized that COVID-19 poses a significant risk to inmates for the simple reason that they are unable to achieve any reasonable form of social distancing.

[56] Many applicants currently seeking bail reviews, including C.O., are relying on a generic affidavit sworn by Dr. Aaron Orkin on April 7, 2020. Dr. Orkin is a physician and epidemiologist. His affidavit describes in general why COVID-19 poses a significant threat to inmates, or others in congregate living facilities like nursing homes or cruise ships. There has been some debate about whether his affidavit meets the criteria for the admission of expert opinion evidence as defined by the Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The debate appears to have been resolved on the basis that Dr. Orkin’s affidavit will be admitted under s. 518(1)(e) of the Criminal Code, which permits the court to receive and consider any evidence considered credible and trustworthy in the circumstances of the case. Counsel in this case are agreed that the affidavit is admissible under that section.

[57] I do not intend to quote extensively from Dr. Orkin’s affidavit. Much of what he had to say about COVID-19 and the risks it poses are now firmly entrenched in our collective consciousness. For instance, he notes that the central strategy for the population health management of COVID-19 is to “flatten the curve”. Social distancing is the key focus of the flatten the curve strategy.

[58] Dr. Orkin goes on to say that controlling outbreaks in congregate living facilities is a top priority for the flatten the curve strategy for the following reasons:

(a) Outbreaks in tight spaces happen very quickly and are nearly impossible to control once they happen. I note that a recent outbreak at the Ontario Correctional Institute illustrates this concern;

(b) People living in congregate living facilities tend to have underlying comorbidities that make them more prone to serious adverse outcomes from infection;

(c) Outbreaks in congregate living facilities have the potential to overwhelm the health care system; and,

(d) Outbreaks in congregate living facilities serve as “tinder for the fire” in more generalized outbreaks.

[59] In R. v. Kazman, as above, Harvison Young J.A. made the following observation:

As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[60] It would appear to be widely accepted that prison populations have heightened risks associated with them in terms of the spread of COVID-19. While I cannot say what the likelihood is that the virus will infiltrate the Central North Correctional Institute, where C.O. is being held, I am satisfied that if it does, it is likely to spread quickly. It will thereby increase the health risks not only of the inmate population but also the staff and the general population.

[61] Many of the bail review rulings released in this pandemic era have focused on the effect of the pandemic on the tertiary ground. In my view, it is a relevant consideration with respect to the secondary ground as well. I say this for two reasons.

[62] First, while the pandemic does not justify throwing open the doors of our correctional institutions, it is certainly to be considered as part of a broad policy to reduce prison populations where it is possible to do so on a reasonable and safe basis.

[63] Second, given that the focus of the secondary ground is the protection and safety of the public, courts must balance the risks posed to the general population should a bail applicant be released against the risks posed to the general population by failing to reduce the inmate population where reasonably possible.

Conclusion

[64] This case is a close call. C.O. is not a great candidate for release given his criminal antecedents. But he has a solid plan of release and I have confidence in his proposed surety. She will be able to supervise him on a 24/7 basis, at least until September. Given that C.O.’s trial was set to be heard in April, I expect that his will be one of the earlier ones heard once the court’s operations return to normal, or some version of normal. I am satisfied that C.O.’s plan of supervision by and large attenuates the risks to public safety posed by his release.

[65] I am also of the view that, being a close call, this is a case where concerns about the COVID-19 pandemic tip the scale in favour of release.

[66] In the result, the detention order is vacated and C.O. is to be released on a recognizance with J.N. as his surety, in the amount of $10,000, on the following additional terms:

(i) C.O. is to reside full-time with J.N. in her home at 49 Woodcrest Avenue, Toronto;

(ii) C.O. is to observe a curfew and not be out of the said residence at any time between the hours of 10:00 p.m. and 6:00 a.m. except in the case of a medical emergency;

(iii) C.O. is to otherwise to remain in the said residence at all times unless in the direct and continuous company of his surety, save for pre-arranged medical appointments or medical emergencies;

(iv) C.O. is to present himself at the front door of the residence within 5 minutes of any attendance there by the police;

(v) C.O. is not to have any direct or indirect contact with J.R. or be within 200 metres of anywhere he knows J.R. to live, work, worship, frequent or be, save for scheduled court appearances;

(vi) C.O. is not to be present within the boundaries of Simcoe County save for court appearances;

(vii) C.O. is not to possess any weapons as defined by the Criminal Code; and,

(viii) C.O. is to abstain from the consumption of alcohol or any non-prescription drugs.

Boswell J.

Corrected date: April 24, 2020

April 24, 2020 – Correction:

1. Para. 66 (vi) now reads: C.O. is not to be present within the boundaries of Simcoe County save for court appearances;