COURT FILE NO.: BR(P) 1948/19 DATE: 2020 04 28

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

T.D. Applicant C. Bottomley, for the Applicant

• and -

HER MAJESTY THE QUEEN Respondent M. Morris, for the Respondent

HEARD: April 17, 2020

ENDORSEMENT ON BAIL REVIEW APPLICATION

This proceeding is taking place during the COVID-19 pandemic. It was heard by audioconference on April 17, 2020. All parties including the Applicant appearing by audioconference.

BARNES J.

INTRODUCTION

[1] T.D. was detained after a bail hearing before Caponecchia J. on September 25, 2019. On December 31, 2019, I upheld his detention on the tertiary ground. T.D. brings this application to review my December 31, 2019 decision. This is a reverse onus situation. On April 21, 2020, I granted T.D.’s application. These are my reasons.

OVERVIEW

[2] On September 8, 2019, T.D. was arrested and charged with possessing a firearm and 2.6 grams of cocaine. Peel Regional Police received a noise complaint about a party in a parking lot at 2911 Derry Road East in Mississauga. Once on scene, police believed that a cup in T.D.’s hand contained alcohol. The police questioned T.D. about this. During this interaction, police made certain observations about the way T.D. was standing. This led them to believe that he was in possession of a firearm. Police searched his person and found a loaded firearm.

[3] After a bail hearing on September 25, 2019, Caponecchia J. of the Ontario Court of Justice detained T.D. on the secondary and tertiary grounds. At that bail hearing, T.D.’s parents, were proposed as sureties. Both sureties are retired and own a $1.2 million dollar home. His father had also previously acted as a surety for T.D. in 2003 when he was charged with murder. The charges were withdrawn as there was no reasonable prospect of conviction. T.D. complied with that bail. Since that time, he has been convicted of drinking and driving twice. Each time, he was released from the police station and complied with the terms of his release.

[4] On December 31, 2019, T.D. sought a review of the detention order before me. I upheld Caponecchia J.’s decision on the tertiary ground. T.D. now seeks a review of my decision.

[5] For the reasons outlined below, I conclude that there has been a material change in circumstances such that T.D. shall be released.

ANALYSIS

Material Change in Circumstances

[6] The parties agree that the COVID-19 global pandemic constitutes a material change in circumstances. This accords with current jurisprudence. However, the real possibility of a COVID-19 outbreak in jail does not mean an automatic release from custody. Each case must be assessed on its own facts: R. v. J.S., 2020 ONSC 1710; R. v. Nelson, 2020 ONSC 1728; R. v. C.J., 2020 ONSC 1933, at paras. 8-9; R. v. Joseph Sinclair-Stewart, March 20, 2020 (S.C.); R. v. Laurin, March 16, 2020 (C.J.); R. v. Phuntsok, 2020 ONSC 2158, at para. 27.

[7] T.D. has submitted expert evidence from an epidemiologist. According to the expert, COVID-19 is a highly contagious virus posing a significant threat to humans. Physical distancing is a universally accepted and effective public health measure which reduces the transmission of the virus. Physical distancing is difficult to enforce in a correctional institution vis-à-vis a private residence. Thus, inmates face a greater risk of infection than if they were in a residence where physical distancing can be practiced in a more effective manner.

[8] The expert’s expertise and evidence are unchallenged, and I accept it. However, I note that the expert’s evidence is not of the ground-breaking variety. These facts have already been accepted by the courts on several occasions: R. v. T.L., 2020 ONSC 1885, at para. 34; R. v. Cain, 2020 ONSC 2018, at para. 8; C.J., at paras. 8-9. In other words, no medical evidence is required to show that the inability to practice physical distancing elevates one’s risk of a COVID-19 infection.

[9] It is now a notorious fact that the risk of contracting COVID-19 can be reduced by practicing mandated public health measures such as the use of personal protective equipment, physical distancing and frequent hand washing. The Deputy Superintendent of Security and Compliance at the Maplehurst Correctional Complex outlined the steps taken by the correctional institution to reduce the probability of a COVID-19 outbreak. Courts have previously acknowledged these efforts: R. v. Jeyakanthan, 2020 ONSC 1984, at para. 31; Phuntsok, at para. 28. Though at a higher risk of infection, inmates of the correctional institution have not been “hung out to dry” so to speak.

[10] As noted, the basic criteria for infection is being human. Another factor which elevates the risk of infection is the reduced or almost non-existent opportunity to practice physical distancing, as is the case in a correctional institution. However, where an applicant wishes to assert that a pre-existing medical condition further elevates their risk of infection, medical evidence of the nature and impacts of the medical condition vis-à-vis COVID-19 is required: Nelson, at para. 41; R. v. Budlakoti, [2020] O.J. No. 1352 (S.C.), at para. 11; Phuntsok, at para. 41.

Secondary Ground

[11] The primary consideration under the secondary ground is whether there is a substantial likelihood that if released, T.D. will commit another offence. In other words, whether his detention is necessary in order to protect the public: Criminal Code, R.S.C., 1985, c. C-46, s. 515(10)(b); R. v. Morales, [1992] 3 S.C.R. 711, at p. 737.

[12] T.D. has no criminal record. He proposes a new bail consisting of house arrest with his parents and his girlfriend as sureties. The plan includes electronic monitoring with conditions that include a prohibition from possessing firearms. T.D.’s parents were proposed as sureties both at the original bail hearing and the December 31, 2019 review. His girlfriend was not proposed as a surety at that time.

[13] The Crown submits that T.D. has failed to satisfy his onus and that his continued detention is necessary for the protection of the public. In support of his position, the Crown submits that:

1. T.D. was caught on scene with a loaded firearm;
2. T.D. has a criminal record;
3. T.D. presents no evidence of a medical condition increasing his risk of contracting the virus;
4. Caponecchia J. did not find T.D.’s parents to be suitable sureties;
5. The addition of his girlfriend as a surety constitutes a mere shuffling of proposed sureties; and
6. Electronic monitoring can only provide an alert that there has been a breach, but does not prevent a breach.

[14] T.D.’s girlfriend has explained that at the time of the original bail hearing, she was unavailable because she was acting as a surety for another person. Her testimony is unchallenged, and I accept it.

[15] I find that Caponecchia J. had legitimate concerns about the ability of T.D.’s parents to adequately supervise him due primarily to their age. Both parents are in their late seventies. However, there have been a few augmentations to the plan since the bail review in December 2019. Electronic monitoring and his girlfriend have been added to the plan. For the reasons articulated below, I am satisfied that these additions are enough to address the concerns raised by Caponecchia J.

[16] T.D.’s parents are both retired and available to supervise T.D. 24 hours a day. His father was his surety when he was charged with murder in 2003. There were no incidents or breaches under his supervision. The murder charges were subsequently withdrawn.

[17] His girlfriend has a proven track record as a surety. From July to October 2019, she was a surety for a family friend. He resided with her for three months, and there were no breaches under her supervision. From May 2017 to August 2017, she acted as a surety for her ex-husband. There were no breaches under her supervision. She also acted as a surety for her ex-husband from 2006 to 2008 when he was charged with second degree murder. The terms of the recognizance included house arrest. There were no breaches under her supervision.

[18] Electronic monitoring is a risk management tool. It does not prevent a breach. The use of electronic monitoring does not automatically alleviate all legitimate primary, secondary or tertiary ground concerns. Rather, the impacts of electronic monitoring in each case are assessed in the context of its particular facts: R. v. Fyfe, 2019 ONSC 548, at paras. 20-23; R. v. A.G., 2018 ONSC 5661, at para. 28, R. v. Palijan, [2012] O.J. No. 6549 (S.C.), at paras. 24-26; Phuntsok, at para. 36.

[19] In this case, I am satisfied that the three sureties, two of whom have previous experience and successful track records as sureties, in conjunction with the risk management tool of electronic monitoring applied to supervise an applicant with no previous history of breaches or non-compliance with court orders is sufficient to address the concerns raised by Caponecchia J.

[20] I am therefore satisfied that T.D.’s continued detention is not necessary for the protection of the public. He has discharged his onus on the secondary ground.

Tertiary Ground

[21] In the tertiary ground analysis, the question is whether the applicant's continued detention is necessary to maintain confidence in the administration of justice: Criminal Code, s. 515(10)(c). This analysis is conducted from the perspective of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law. This includes the presumption of innocence, the right to liberty, and the rights guaranteed by the Charter: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 72-87.

[22] The heightened risk of contracting COVID-19 from residing in a place where physical distancing cannot be practiced to the same degree as in a private residence is apparent. The practical effect of this global pandemic is that in some cases, persons whose detention is warranted absent COVID-19 concerns may be releasable because of COVID-19. This is not an automatic result. Each case must be assessed on the basis of its own facts. COVID-19 is not an automatic pass out of detention: R. v. Rajan, 2020 ONSC 2118, at para. 74. The analytical lens is always from the perspective of the reasonable person as described in St-Cloud.

[23] Evaluating the tertiary ground in accordance with the four listed criteria in s. 515(10)(c), I conclude that subject to the outcome of some Charter motions, the Crown's case is strong. The offence is serious. T.D. faces a penitentiary sentence if he is convicted. The firearm found in T.D.’s possession was loaded and in a public place.

[24] I must also consider T.D.’s personal circumstances in this analysis: St-Cloud, at paras. 66-71. T.D. is 41 years old. He suffers from asthma. He resides in an environment that places him at a heightened risk for contracting COVID-19. T.D. has no criminal record for any violent offences and no convictions for failing to comply with court orders. For reasons previously articulated, his proposed release plan adequately addresses any secondary ground concerns.

[25] Considering all these factors from the perspective of a reasonable member of the public, I conclude on a balance of probabilities that T.D.’s continued detention is not necessary to maintain public confidence in the administration of justice. He has discharged his onus on the tertiary ground.

CONCLUSION

[26] The application is granted. Accordingly, this court orders T.D.’s release, in the amount of $320,000, no deposit, with three named sureties, each pledging the following amounts:

a. XXX, (T.D.’s father), with a pledge of $150,000. b. XXX, (T.D.’s mother), with a pledge of $150,000. c. XXX, (T.D.’s girlfriend), with a pledge of $20,000.

And, subject to the following conditions:

1. Reside at XXXX with your sureties, XXXX (parents) and XXXX (girlfriend);
2. Not to be out of the residence without your sureties with no exceptions;
3. Do not leave XXXX address, except: a. To attend scheduled court appearances. b. To meet with your counsel to prepare your defence. c. For medical emergencies relating to you or your immediate family.
4. Do not possess any firearms;
5. Do not possess any weapons as defined by the Criminal Code;
6. Do not apply for a Firearms Acquisition Certificate or any other licence to possess a weapon;
7. To be subject to GPS monitoring by the Recovery Science Corporation, at your own expense, which shall include: a. Entering into Recovery Science Corporation’s Participation Agreement and complying with its terms; b. Wearing a GPS ankle bracelet at all times; c. Permitting Recovery Science Corporation to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; d. Complying with Recovery Science Corporation’s leave notification and battery charging requirements; and e. Cooperating fully with Recovery Science Corporation staff.
8. GPS monitoring shall be installed within 48 hours of T. D’s release from custody.

The Honourable Justice Kofi Barnes

Released: April 28, 2020

COURT FILE NO.: BR(P) 1948/19 DATE: 2020 04 28 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - T.D. REASONS ON BAIL REVIEW Barnes J. Released: April 28, 2020