Court File and Parties

COURT FILE NO.: CR-20-105-BR DATE: 20200427 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Jeffery Phillips Applicant

Counsel: Jennifer Armenise, for the Crown Eric Rolfe, for Mr. Phillips

HEARD BY TELECONFERENCE: April 24, 2020

RULING ON S. 520(1) REVIEW OF DETENTION ORDER

CASULLO J.:

Overview

[1] Mr. Phillips faces two sets of charges: assault with a weapon and uttering threats (September 13, 2019); and robbery, assault with a weapon, and uttering threats (October 12, 2019). Mr. Phillips has not had a bail hearing. On November 21, 2019, he consented to his detention in order to obtain in-custody trial dates. Accordingly, this is an application ne novo pursuant. In support of his application, Mr. Phillips produced an affidavit.

[2] Mr. Phillips has a lengthy criminal record. He was serving a six-month conditional sentence for possession of cannabis when he is alleged to have carried out the above-noted offences. As such, pursuant to s. 515(6)(a)(i), the onus is on Mr. Phillips to show why his continued detention is not justified.

[3] I am mindful of the overarching assumptions which are to be applied in all pre-trial detention hearings: an accused is presumed innocent of the charges against him or her; and an accused is constitutionally entitled to bail, pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. But that entitlement is not absolute, and bail may be denied if there is just cause.

The Hearing

[4] The hearing took place, on consent, via teleconference during the COVID-19 pandemic. Mr. Phillips participated in the conference call from the Central North Correctional Centre (“CNCC”).

[5] The Crown opposes Mr. Phillips’ release on the secondary and tertiary grounds. The Crown witness was Sergeant Jonathan Vanderboon, a Security Manager for the Ministry of the Solicitor General, who has worked at CNCC for 16 years. Sgt. Vanderboon provided a will-say statement, the contents of which he adopted at the hearing.

[6] Mr. Phillips submits that he can be safely released on house arrest. His cousin, Stephanie Agius, has agreed to act as his surety. Ms. Agius provided an affidavit, on which she was cross-examined.

The Evidence

[7] Mr. Phillips was affirmed prior to being examined. His counsel began by asking him whether he had a cell mate at CNCC. Mr. Phillips said he did not, contrary to his affidavit, in which he said he shared his cell. Mr. Phillips candidly admitted to lying about this fact, “I lied about that because I wanted to get my time in court.”

[8] Mr. Phillips was next asked how many inmates were on his range. He replied the range was half-full at almost 20 inmates. This is again contrary to his affidavit, in which he said his range housed 25 inmates.

[9] With the exception of these two inaccuracies, Mr. Phillips adopted, under oath, the rest of the contents of his affidavit.

[10] During cross-examination, Mr. Phillips confirmed he had asthma. When asked about the inhalers he has at CNCC, he advised he does not use them, as he is not doing anything strenuous to trigger his asthma, and he did not want to be “seen as being weak”. This, too, is contrary to his affidavit, in which he claimed he used two inhalers regularly at CNCC.

[11] There were other, less damaging discrepancies in his affidavit. For instance, he states that CNCC does not provide anything to sanitize the phones between uses. However, he confirmed there is cleaning material available, in the form of a blue liquid, that is kept by the phones. Mr. Phillips chooses not to use the blue liquid because he is unaware of what it contains.

[12] Finally, Mr. Phillips stated in his affidavit it was physically impossible to maintain social distancing while the inmates are in the day room. In cross-examination, he acknowledged this was due less to a physical inability to distance, and more to the fraternal nature of the range when the inmates are together in the day room.

[13] Ms. Agius was examined next. She is a social worker, currently off work to raise her children. She would be able to supervise Mr. Phillips full time, and she has a spare bedroom that he could use. Ms. Agius was an excellent witness. I am satisfied she understands her obligations as a surety, and would not hesitate to call the police if Mr. Phillips were to breach bail.

[14] Sgt. Vanderboon confirmed there are currently 16 inmates in Mr. Phillips’ unit, 2C, and that Mr. Phillips has been housed alone in his cell since March 28, 2020. Inmates, not Correctional Officers (“Officers”), are responsible for cleaning their own cells. Cleaning supplies are distributed by the designated inmate worker on the range, who is also responsible for cleaning the day room areas and serving meals.

[15] Because social distancing in a prison setting is so difficult, Sgt. Vanderboon outlined the precautions CNCC is taking to mitigate the introduction of COVID-19 into the facility. These precautions are set out in the Ministry of the Solicitor General’s “Response to COVID-19 Information Note” dated April 21, 2020. This includes additional PPE (as of April 22, 2020, all Officers are required to wear masks and gloves within the facility), screening of staff reporting for shift every day, and cancelling all non-essential visits and interviews.

[16] The glass portion of the day room door acts as a bulletin board of sorts for the inmates. The literature posted on it provides facts about COVID-19, ways to prevent the passage of COVID-19, how to properly clean surfaces, and suggestions for personal hygiene (frequent hand washing, avoiding touching eyes, nose and mouth etc.).

[17] New inmates undergo a health screening upon admission, and are placed into a quarantine range for three weeks until deemed non-symptomatic, at which time they are moved into the general population.

[18] There have been no reported cases of COVID-19 at CNCC.

[19] In respect of the precautions CNCC is purported to be taking, there were discrepancies between what Mr. Phillips has personally observed while at CNCC, versus what Sgt. Vanderboon reports as taking place. Despite these, it appears CNCC is taking adequate steps to protect its inmate population. Of course, there can always be improvements. For example, one obvious solution is to provide disinfectant wipes so the inmates can disinfect the phone before they use it. CNCC can also ensure that inmates have separate towels for personal use and cleaning their cells – or can at least ensure that inmates are aware there are rags available for cleaning their cells.

Discussion

[20] An accused may be detained under s. 522(2) of the Criminal Code, R.S.C., 1985, c. C-46 on one of what are referred to as the primary, secondary and tertiary grounds listed in s. 515(10):

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(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; and

(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.

[21] While I appreciate Mr. Phillips’ candor during the hearing, I am uncertain whether he understands the irony of providing a materially false affidavit to the court. On the one hand, he promises to abide by whatever conditions are set surrounding his release, and on the other, he demonstrates that he is willing to lie. Add to this the fact that Mr. Phillips was in breach of his 2019 bail provisions when he was arrested, and the grounds for Mr. Phillips’ continued detention are compelling.

[22] Mr. Phillips does not share a cell, so his concerns about not being able to social distance because the bunk beds are not two metres apart are not relevant at this time. Mr. Phillips’ concerns over social distancing in the day room could be alleviated if he opts not to engage with his range-mates.

[23] In his affidavit, Mr. Phillips said he has asthma. However, while at CNCC, he has not needed to use his inhalers. Counsel provided a bulletin from the Centres for Disease and Control Prevention outlining that those with moderate to severe asthma may be at higher risk of getting very sick from COVID-19. The degree of Mr. Phillips’ asthma was not confirmed, but it is not unreasonable to posit it might be less than moderate if he has no need to use his inhalers. Without anything further, there is no evidence demonstrating that Mr. Phillips has an increased risk of complications from COVID-19.

[24] Mr. Phillips clearly does not respect the law. On this reverse onus bail hearing, he has not persuaded the court that he should be released.

[25] Leaving the false affidavit aside, I would also find that Mr. Phillips’ continued detention is warranted under s. 522(10)(b). Detention is warranted on the secondary ground where necessary for the safety of the public, including any victim of or witness to the offence.

[26] Mr. Phillips has shown a willingness to commit offences while out on bail. Of course, the risk of re-offending on its own is not sufficient grounds to deny bail. The court must balance this risk, and make a determination as to whether the proposed terms of release will adequately address these secondary ground concerns. In other words, it must assess whether Mr. Phillips can demonstrate that his surety and the plan of supervision will sufficiently reduce the risks posed by release.

[27] The proposed plan of supervision is house arrest. Mr. Phillips’ record speaks to the fact that he is unable to abide by house arrest. Despite my confidence in Ms. Agius as a surety, I am not satisfied that Mr. Phillips will listen to her. I find that there is a substantial likelihood that Mr. Phillips will not follow the conditions imposed by the court.

[28] There is no question that the impact of COVID-19 is serious, and that those who are incarcerated may be at greater risk for contracting the virus. Whenever an accused person can safely be released on bail, that should occur.

[29] However, there will be those accused who must remain in custody in order to satisfy the concerns as set out in s. 515(10). Mr. Phillips is such an accused, and his application is dismissed.

CASULLO J. Released: April 27, 2020