Court File and Parties
COURT FILE NO.: 113/20 DATE: 2020-04-29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – JEVONE BROWN Applicant
COUNSEL: Jason Miller, for the Respondent Cassandra DeMelo, for the Applicant
HEARD: April 27, 2020 by teleconference
Reasons on Bail Review
THOMAS, RSJ.:
[1] This is a s. 520 bail review from the August 30, 2019 decision of Justice of the Peace C. Bertrand. At that time, the presiding justice detained on the secondary ground.
[2] On April 27, 2020 I heard argument on this review, and at the conclusion, dismissed the application with reasons to follow. These are those reasons.
Background
[3] The applicant is charged in London with the following offences:
- Obstruct Justice contrary to section 139(2) of the Criminal Code of Canada
- Sexual Interference with person under the age of 16 contrary to section 151 of the Criminal Code of Canada
- Make Child Pornography contrary to section 163.1(2) of the Criminal Code of Canada X 2
- Advertise Child Pornography contrary to section 163.1(3) of the Criminal Code of Canada X 3
- Sexual Assault as party to offence contrary to section 272(1)(d) of the Criminal Code of Canada
- Trafficking in Persons by Recruiting contrary to section 279.01(1) of the Criminal Code of Canada
- Financial/Material Benefit from Trafficking in Persons Under the age of 16 contrary to section 279.02(2) of the Criminal Code of Canada
- Obtain Sexual Services for Consideration from Persons under 18 years contrary to section 286.1(2) of the Criminal Code of Canada X 2
- Advertise another Person’s Sexual Services contrary to section 286.4 of the Criminal Code of Canada X 3
[4] A number of the London allegations were laid after the August bail hearing as a result of an investigation conducted in Durham Region.
[5] I recognize that all these offences have not been trial-tested and that the presumption of innocence prevails.
[6] At the time of the August bail hearing, the applicant had outstanding warrants for his arrest in Brampton, Durham and Kitchener. He has since resolved the Brampton and Kitchener charges, and as a result, there are four further convictions on his record since August 30, 2019, including possession of a Schedule 1 substance, breach of a s. 161(4) order, and failure to comply with an undertaking given by an officer in charge.
[7] Although not part of this proceeding, the applicant is charged in Durham with a count of sexual assault (s. 271) and a count of procuring (s. 286.3). No application for bail has been undertaken in Durham. The charges are set for trial in October 2020.
[8] The applicant is 27 and has resided with his mother, Sandra Brown, at her home in Brampton for the past three years. From 2011 to 2019, the applicant has compiled 32 convictions. Of these, 14 involve breaching court orders, including seven failures to comply with a recognizance, three charges of obstruction of justice, three failures to appear and one conviction for fleeing while pursued by police. The convictions come from 11 different jurisdictions in Ontario and one in Manitoba.
[9] The applicant came before the justice in August 2019 in a reverse onus position, having been charged with obstructing justice while on a $3,000 recognizance with one surety.
[10] In summary, the serious charges before this Court allege that the applicant has been trafficking and exploiting teenaged girls over and under the age of 18 while regulating their services in the sex trade and obtaining a material benefit for doing so. He has a 2017 related conviction for receiving a material benefit from sexual services provided by a person under 18 years of age (s. 286.2(2)) at which time he received a custodial sentence of 10 months after 280 days of pre-sentence custody.
Bail Hearing – August 2019
[11] The presiding justice gave a detailed and thoughtful decision which reviewed the evidence at length as well as the apparent strength of the crown’s case. At page 28 of her reasons, the justice made the following comment about the allegations:
The nature of the offences are also of grave concern to this court. The allegations before the court that are by their nature planned and deliberate involve the exploitation of a vulnerable member of the community, a 15-year-old, who at some point was in foster care.
They also allege gang sexual assault and child-pornography-related offences.
[12] The release plan in August 2019 was house arrest in his mother’s home in Brampton. There would be two sureties; his mother and Royford Livingston. Livingston told the Court that he had acted as a father figure to the applicant for the past 12 years. It was his intention to move into the home to assist in supervision. Both Sandra Brown and Royford Livingston were employed but would check up on the applicant from time to time while they were at work.
[13] As part of the plan, the applicant would be subject to GPS monitoring under a contract with Recovery Science.
[14] It became clear that Sandra Brown had acted as a surety for her son in the past, and that at least on one of those occasions, he breached that release order. The Justice of the Peace rejected the release plan on the basis of the secondary ground contained in s. 515(10)(b):
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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;
[15] I have provided below a number of passages from her decision which demonstrate the justice’s reasoning:
Given the number of convictions within a period of eight years and no gaps, given your relatively young age, you clearly face significant challenges with abiding by rules that are set before you. Given the number of breaches of court orders, you clearly struggle with self-regulation.
What is disconcerting is the prior conviction in relation to human trafficking of a vulnerable person, a female under the age of 18 years. And what is equally disturbing are the prior convictions that are results of actions taken to stop the justice system from functioning. They are obstruction-related.
Despite having served custodial dispositions in 2017, and one would think this would serve as a deterrent, you were later convicted of five more charges.
In other words, it would appear at this stage that you have adopted a lifestyle that has you repeatedly and consistently before the courts.
You simply choose to do what you want when you want.
[16] As to the proposed surety, Sandra Brown:
… she agreed that since 2011, you have been back and forth, in and out of court, and that you have 28 convictions, and that each time, she tells you to stay out of trouble, and each time, you say you will, and each time, you do not.
The Crown also submitted that the two aspects must be considered under the secondary grounds, the substantial likelihood test, but also the interference with the administration of justice. The Crown points to the recording where you attempted to get the complainant to author an affidavit exculpating Mr. Reid, points to the citizen's complaints about you, as well as outstanding charges, Durham, Kitchener, and now in London, and that you were already on release for a serious charge for a 5(2) of cocaine.
Fundamentally, I have no doubt that the sureties would do their best to avail themselves of their tools to supervise you. The missing piece is that you are the one who would need to abide by the conditions and allow yourself to be supervised.
In this case, however, given the significant history of breaches of court orders, your lengthy criminal record, and given the circumstances and the totality of the evidence provided, I am not persuaded that you would abide by any court order that I would put in place today.
As such, you have not met your onus on the balance of probabilities. I am ordering your detention on the secondary groans [sic] …
A Section 520 Review
[17] For the purposes of this decision, the relevant portions of s. 520 are set out below:
520 (1) 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.
(7) On the hearing of an application under this section, the judge may consider
(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,
(b) the exhibits, if any, filed in the proceedings before the justice, and
(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,
and shall either
(d) dismiss the application, or
(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.
[18] Any concerns about the nature of a s. 520 review were eliminated by the decision of the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. I have set out below paras. 91, 92 and 118-121 of St.-Cloud which provide structure for my reasons in this review:
[91] This is the first time this Court has considered the scope of ss. 520 and 521 Cr. C. Not all lower courts in Canada are agreed on the nature of this review process. Some consider it an appeal, which means that only an error of law or principle will provide a basis for a “review”. Others take the view that they have full discretion to vary the initial order even in the absence of an error. This approach is sometimes described as a “de novo” hearing, although, as Justice Trotter points out, a true de novo hearing is conducted as if there were no previous proceedings: p. 8-13. Finally, other courts treat the review under ss. 520 and 521 Cr. C. as a hybrid remedy. In their view, the section authorizes the accused and the prosecutor to present new evidence to show a change in circumstances, and to raise an error of law or principle by the justice to justify a review of the initial order.
[92] For the reasons that follow, I am of the opinion that ss. 520 and 521 Cr. C. do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. Nonetheless, they establish a hybrid remedy and therefore provide greater scope than an appeal for varying the initial order.
[118] As I mentioned above, I am of the opinion that ss. 520 and 521 Cr. C. do not provide for a de novo hearing. Thus, unless there is new evidence - a subject I will address below - the reviewing judge is not in a better position than the justice to evaluate whether the detention of the accused is necessary. In addition, the reviewing judge has, in relation to the justice, no special expertise with respect to release.
[119] I therefore have difficulty seeing any possible justification for allowing a reviewing judge, at all times, to substitute his or her assessment of the various circumstances for that of the justice.
(5) Conclusion: The Review Provided for in Sections 520 and 521 Cr. C. Is a Hybrid Remedy
[120] On the basis of the wording of ss. 520 and 521 Cr. C., a comparison with other review provisions and with sentence appeals, and the nature of the decision being reviewed, I conclude that these sections do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must therefore determine whether it is appropriate to exercise this power of review.
[121] It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[19] In the circumstances of this application, I directed counsel that I wished to focus the hearing on the secondary ground detention. I advised applicant’s counsel that I needed to be persuaded that there was a material change in circumstance that affected the secondary ground, before I would move forward and consider a broader hearing. The hearing proceeded in this manner.
Crown Position
[20] The respondent Crown believes this application should be dismissed at the outset. He maintains that the plan proposed is in fact poorer than the one appropriately rejected by the justice. He argues that there is not material change in circumstances that can satisfy the secondary ground concerns.
Applicant’s Position
[21] Counsel’s position on the grounds for review can be summarized in the following points:
- Sandra Brown, while proposed as a surety in the original hearing, is now laid off from work as a result of COVID-19 and is home full-time;
- ESP now proposed should be seen as a superior monitoring system from the GPS system offered by Recovery Science in the original hearing;
- As a result of COVID-19 and the suspension of court proceedings, it is unknown when the applicant will be tried on these London charges;
- The COVID-19 pandemic amounts on its own to a material change in circumstance for inmates in correctional facilities, and has application to all grounds captured by s. 515(10).
Analysis
[22] I find no fault with the decision of the presiding justice. She clearly reviewed all the evidence and concluded that public safety could not be protected unless the applicant was detained. She concluded that there was a substantial likelihood of re-offending if released, and expressed concern, based on the applicant’s record, that he would interfere with the administration of justice. That conclusion was available on all of the evidence.
[23] The plan before me, in fact, calls for one less surety than the plan previously rejected. It no longer proposes that Rayford Livingston will move into Sandra Brown’s residence.
[24] As well, electronic monitoring was proposed before. There is no evidence before me that the Electronic Supervisor Program (ESP) provided by the Ministry of the Solicitor General is in any way superior to the GPS monitoring system provided by Recovery Science. In fact, there is a suggestion that the response times in the circumstances of a breach may well be better using the private industry system.
[25] I accept, as did the justice, that the applicant’s mother would try her best to supervise his release on strict conditions. She is willing to offer a substantial sum as a pledge. She has, however, done this before and she candidly admitted to the justice that her son continues to reoffend. I am convinced that her full-time presence in the home would not have changed the result in the hearing below, and it does not assist the applicant now.
[26] The serious offences which prompt this review could be continued by the applicant while he is in his mother’s home. The applicant has been convicted of materially benefitting from the sexual services provided by a person under 18. I accept that these new allegations are unproven, but there is substantial evidence of on-line advertising, manipulation of escorts schedules on-line, the soliciting of “johns” and the payment through electronic transfer. Clearly all of this could be accomplished with a smart phone.
[27] Adding more substance to this concern is the fact that the applicant has been convicted in October 2019 of breaching a s. 161 order. When arrested in Durham in May 2019, he was in possession of three cell phones and on the most recent charges, when arrested in London in December 2019, he was again in possession of a cell phone.
The Impact of COVID-19
[28] As part of the evidence before me, the applicant has produced the following materials:
- An open letter dated April 6, 2020 from Medical Professionals to Federal, Provincial and Territorial Governments entitled Release Prisoners to Protect Public Health.
- An affidavit from Dr. Aaron Orkin, M.D., a physician specialist in Public Health and Preventative Medicine.
[29] These materials are compelling. I find them properly before me in this bail review. The open letter entreats governments to release inmates who are most vulnerable; those who are over age 50 and suffering from chronic health problems.
[30] Dr. Orkin has impressive credentials. His opinions would seem to be indisputable. In fact, his affidavit has found its way before a number of Courts tasked with a review. In R. v. J.R., 2020 ONSC 1938, a s. 525 review, Schreck J. accepted the opinions of Dr. Orkin in a detailed analysis and concluded that the delay in setting a trial date, the potential of electronic monitoring, and the very real threat of COVID-19 infection for inmates allowed for release.
[31] In coming to my conclusion in this review, it is important that I consider particularly the content of paras. 35 and 37 of Dr. Orkin’s affidavit:
From a medical and population health perspective, it is in the best interest of the community at large that an aggressive approach be taken to depopulating custodial facilities, be they jails, prisons, penitentiaries, reformatories or detention centers, and whether they be for males or females, youths or adults. So long as individuals are forced to congregate in relatively small spaces where they cannot keep at least 2 meters apart from each other at all times, and where they share bathroom, shower, telephone and other facilities, and where people from the outside (new inmates, correctional staff, volunteers) occasionally populate their space, COVID-19 will have a perfect environment in which to spread both inside and then outside the facilities.
It goes without saying that a judicial official deciding whether or not to detain somebody will inevitably take other considerations into account, and will have to balance various factors in determining what is in the community’s best interest. My opinion is concerned only with what is in the community’s best interest with respect to the imminent threat of a COVID-19 pandemic. Subject to other considerations, any solution that promotes and enables physical distancing between individuals is in the community’s best interest for the management of COVID-19.
[32] The affidavit of the applicant filed in this proceeding indicates that he is aware of the global pandemic and that he is concerned for his safety and the safety of those detained with him at the Central East Correctional Centre. He cannot practice social distancing and does not have the means to practice good hand washing. He maintains that this threat of illness will provide extra incentive to abide by any release conditions.
[33] Crown material indicates at the time of the hearing, there were no confirmed or suspected cases of COVID-19 at the Central East Correctional Centre. The inmate count was 743 in a facility that could hold 1,600 inmates. The applicant is housed in a cell with one cellmate.
[34] There have been a barrage of decisions from judges of this Court considering the effects of the COVID-19 pandemic on judicial interim release. It would seem the viral danger to inmates is best considered in the factors contained in the tertiary ground (s. 515(10)(c)). In the review before me, the crown suggested that Trotter J.A. in R. v. Morgan (2020), M51470 (C67536) (C.A.) found that COVID-19 was only relevant to the tertiary ground. I do not read Morgan as standing for that principle.
[35] In fact, the weight of authority suggests that COVID-19 must be considered across all the s. 515 grounds as a factor to be considered proportionally in determining release (R. v. T.K., 2020 ONSC 1935, para. 60; R. v. Cain, 2020 ONSC 2018, para. 8; R. v. Fraser, 2020 ONSC 2045, para. 16; R. v. Cahill, 2020 ONSC 2171, para. 27).
[36] In R. v. T.L., 2020 ONSC 1885, Molloy J. found that electronic supervision satisfied her concern about a material change on the secondary ground and went on to discuss the effects of COVID-19 on the tertiary ground.
[37] In Cahill, Labrosse J. found the concerns about the virus would affect the secondary ground in that Cahill had chronic lung disease and would be motivated to remain at home. In addition, Cahill’s criminal activity focused on thefts where there was minimal opportunity to re-offend because of the current provincial shutdown.
[38] In R. v. Kazman, 2020 ONCA 251 Harvison Young J.A. found that the age and health concerns of Kazman placed him in a vulnerable group more likely to be severely affected by acquiring the virus and released him on bail pending his appeal.
[39] In Fraser, London-Weinstein J. at para. 16 agreed that the threat of the virus was relevant to secondary ground concerns but found that, with that particular violent offender, protection of the public was of greater importance.
[40] In R. v. Hastings, 2020 ONSC 2083 Monahan J. confronted many of the same concerns I encounter in this review. At paras. 50 – 54, Justice Monahan discussed his concerns with the argument that the threat of COVID-19 affected the primary and secondary ground in the case of Hastings:
[50] Given that Mr. Hastings has been detained on the primary and secondary grounds, how might the existence of the COVID-19 virus be relevant to the specific considerations which Parliament has directed the court to consider under those grounds?
[51] Counsel for Mr. Hastings argues that the existence of the COVID-19 pandemic is indeed relevant to both the primary and secondary grounds in this case. He argues that the threat of transmission of the virus in a provincial institution is so significant that it will provide an additional deterrent against Mr. Hastings breaching the conditions of his release.
[52] The difficulty with this argument is that there is no evidence on the record to support it. Mr. Hastings is 24 years old and in good health. There are no cases of COVID-19 in the correctional institution where he is being detained nor has the court heard from Mr. Hastings as to whether his fear of contracting COVID-19 would operate as a deterrent in this case. It is therefore speculative to assume that the existence of COVID-19 would cause Mr. Hastings to alter his behavior if he were released. In any event, even if Mr. Hastings does have such fear, it is not clear that this would cause him to comply with the terms of his release. He has previously demonstrated a willingness to evade police capture in order to avoid being returned to custody. A heightened aversion to being in custody as a result of the threat of contracting COVID-19 might well cause him to repeat such behavior in the future. Ultimately, in the absence of any evidence from Mr. Hastings on the issue it is idle to engage in such speculation.
[53] I am mindful of Chief Justice Wagner’s observation in Myers that, in an appropriate case, a “hypothetical risk in relation to the primary or secondary ground” could be outweighed by “the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice.” I would simply observe that, at least at this stage and in light of the record before the court, this is not such a case. Here, the risks in relation to the primary or secondary ground are real rather than hypothetical. Moreover, based on the evidentiary record described above, at this stage there is no “certain cost” to Mr. Hasting’s liberty or security of the person as a result of the COVID-19 virus.
[54] I conclude that the COVID-19 virus does not address or satisfy the concerns identified under the primary or secondary grounds.
[41] Unlike in Hastings, I have the sworn evidence of the applicant about his concerns regarding becoming infected and the salutary impact that has had upon him. I am mindful that the virus inflicts all age groups often with deadly results. However, the applicant is 27 with no identified health concerns, in a facility less than half full, with no suspected cases. He is not the fragile and vulnerable inmate considered in some of the cases cited above.
[42] I say that because while aware of the dangers of a viral infection in a correctional facility, I must weigh that in context. Part of the context must be the personal characteristics of the applicant. I must weigh those concerns against the very real public safety concerns identified by the justice and as amplified in these reasons.
[43] Earlier, I recognized that delay in the trial of the applicant was a factor I needed to consider as part of a potential material change in circumstances. In R. v. Myers, 2019 SCC 18, 2019 S.C.C. 18 at para. 53, the Chief Justice considered the impact of the passage of time on public confidence in the administration of justice and as Monahan J. pointed out in Hastings, the Chief Justice stated that:
… In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or a loss of public confidence in the administration of justice.
[44] I recognize that there is a clear cost to this applicant as a result of the loss of his liberty, however, in these circumstances I do not find he presents the “hypothetical risk” that caused concern for the Chief Justice. His record and his reaction to bail conditions in the past satisfy me that the concerns expressed by the justice in August 2019 are just as determinative of the issue of release today as they were then.
[45] The plan before me, even considering the COVID-19 concerns, does not amount to a material change in circumstances from the position of the applicant at his original bail hearing. His criminal record is more extensive, there is one fewer surety proposed. He is facing new significant and related charges in London.
[46] Having found that the threshold of a material change in circumstances as contemplated by St-Cloud has not been met, there is no need for me to embark on a broader hearing and the review application is dismissed.
“Regional Senior Justice B. G. Thomas”
Regional Senior Justice B. G. Thomas
Released: April 29, 2020.