R. v. B.S., 2020 ONSC 2668

Court File No.: CR-20-106 BR Date: 2020-04-30 Court: Superior Court of Justice – Ontario

Between: Her Majesty the Queen – and – B.S., Defendant

Counsel: Jennifer Armenise, for the Crown Erec Rolfe, for the Defendant

Heard By Teleconference: April 28, 2020

Ruling on Bail Review Application

Before: C. Boswell J.

[1] B.S. is a 31 year old inmate at the Central North Correctional Centre (“CNCC”). He is being detained pending the disposition of a lengthy list of criminal charges against him. He has been diagnosed with chronic obstructive pulmonary disease (“COPD”). He carries two inhalers with him at all times. He is very concerned about his risk of exposure to the novel coronavirus while at CNCC. He has a heightened risk of an adverse outcome if he contracts the disease. He says that CNCC is doing little to protect vulnerable inmates like him, or anyone for that matter. He applies for release on bail.

[2] With B.S.’s consent, the hearing of his application was conducted by audio-conference. He was able to participate on the conference call line from the CNCC.

[3] B.S. previously had a bail hearing before Justice of the Peace Noordegraaf on February 12, 2020. She ordered him detained pending trial on concerns about the safety of the public should he be released. She expressed a concern that he would not comply with any conditions she imposed and would be an unacceptable risk to re-offend while on release.

[4] B.S. applies under s. 520(1) of the Criminal Code for a review of his detention. He submits that this court has the jurisdiction to review the detention order for two reasons. First, because the justice of the peace made an error in principle by effectively concluding that he is un-releasable. Second because there is admissible new evidence that constitutes a material change in circumstances since the detention order was made in February. That evidence consists of his COPD diagnosis and the COVID-19 pandemic.

[5] The Crown concedes that this court has jurisdiction to conduct a review of B.S.’s detention on the basis of admissible new evidence. Nevertheless, Crown counsel submits that B.S. continues to represent an unacceptable risk to public safety given the seriousness of the charges against him, his criminal record, and the fact that he was on a two-surety recognizance at the time the last group of his alleged offences were committed. His detention continues, in the Crown’s submission, to be justified as necessary for the protection or safety of the public.

[6] In view of the parties’ positions, the issues the court must determine on this application are limited to whether B.S.’s release will pose a risk to the safety or protection of the public and if so, whether his proposed plan of release will sufficiently guard against any such risk.

[7] Before I get into an analysis of the live issues, I will set out the general legal framework that governs the court’s approach to bail applications.

General Legal Framework

The Individual Rights that Animate Bail

[8] B.S. faces a lengthy list of charges, some very serious. I will outline them in a moment. The charges against him are just allegations that he has engaged in criminal conduct. He is presumed to be innocent of those charges. The presumption of innocence is entrenched in s. 11(d) of the Charter of Rights and Freedoms. The Charter also provides that B.S., like any other person accused of committing a criminal offence, has the right not to be denied reasonable bail without just cause. See s. 11(e). These two Charter rights animate much of the jurisprudence on bail review.

The Jurisdiction to Review a Detention Order

[9] B.S. has been denied bail. He seeks a review of his detention under s. 520(1) of the Criminal Code. That section provides that where a detention order has been made under s. 515 of the Code, an accused person may apply at any time prior to trial for a review of that order.

[10] It is settled law that s. 520(1) does not provide an open-ended jurisdiction to review detention orders. In R. v. St. Cloud, 2015 SCC 27, the Supreme Court held that the court may only exercise its jurisdiction to conduct a review of a detention order under s. 520(1) in three circumstances: (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.

[11] In this case, the Crown concedes that there is admissible new evidence that constitutes a material change in circumstances. Specifically, B.S.’s COPD diagnosis and the impact of the COVID-19 pandemic. As such, I have the jurisdiction to conduct a bail hearing as though I am the original decision-maker.

The Onus

[12] In most cases, the Crown bears the onus of establishing why pre-trial detention is justified. Sometimes the onus shifts to an accused person to establish why detention is not justified. Section 515(6) of the Code sets out the circumstances in which there will be a reverse onus. One of those circumstances is where the accused is alleged to have committed offences while at large on a recognizance, which is the case here. Accordingly, it is B.S.’s onus to satisfy the court that his continued detention is not justified.

Justifications for Pre-Trial Detention

[13] In the last half a decade, the Supreme Court has reinforced, in several prominent cases, some fundamental principles that apply to all bail applications. One overarching principle has emerged from the cases: pretrial detention is the exception, while the earliest possible release, on the least onerous terms, is the default presumption. See R. v. St-Cloud, as above; R. v. Antic, 2017 SCC 27; and R. v. Myers, 2019 SCC 18.

[14] Consistent with the Charter rights that animate bail, the Supreme Court has directed that pre-trial detention will only be justified in a narrow set of circumstances and only where necessary to ensure the proper functioning of the bail system. See R. v. Pearson, [1992] 2 S.C.R. 665 at para. 58; R. v. Antic, as above at para. 40.

[15] Parliament has identified, in s. 515(10) of the Criminal Code, three circumstances where detention will be justified to ensure the proper functioning of the bail system. By convention, they are referred to as the primary, secondary and tertiary grounds for denying bail.

[16] First, Parliament has recognized that the bail system does not function properly if those released on bail do not show up for their scheduled court dates. In the result, bail may be justifiably denied, on the primary ground, where there are unattenuated concerns about the accused absconding.

[17] Second, Parliament has recognized that the bail system does not function properly if those released on bail commit further offences or interfere with the administration of justice. Bail may justifiably be denied, on the secondary ground, where there are unattenuated concerns about the protection of the public.

[18] Finally, Parliament has recognized that there are some cases where the alleged crimes are so serious and the Crown’s case so strong, that public confidence in the administration of justice would be shaken if the accused was not detained prior to trial. In the result, bail my justifiably be denied, on the tertiary ground, where necessary to preserve public confidence in the administration of justice.

[19] B.S. takes the position that his continued detention is not justified on any of the three grounds because he has a plan of supervision in place that will allay any concerns that he will fail to appear in court or that he will commit further offences. He further submits that public confidence in the criminal justice system will not be shaken if he is released on bail. Reasonable and informed people will understand, he says, that his release is appropriate in view of his vulnerability to the COVID-19 virus and given the release plan he is proposing.

[20] The Crown does not dispute B.S.’s assertions insofar as they relate to the primary and tertiary grounds. The Crown’s concerns are focused on the secondary ground.

[21] The secondary ground, as I noted, provides that detention is justified where necessary for the protection or safety of the public, including any victim of or witness to an offence. Section 515(10)(b) directs the court to look at all of the surrounding circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[22] The “substantial likelihood” threshold does not require the court to make exact predictions about future dangerousness: see R. v. Morales, [1992] 3 S.C.R. 711. It is essentially a slightly enhanced balance of probabilities standard. See Trotter, Gary T., The Law of Bail in Canada, 3rd ed. Toronto: Carswell, 2010 (loose-leaf updated 2018, release 2).

[23] 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.

[24] If the court is satisfied that detention is necessary for the protection or safety of the public, then the accused bears the onus of establishing that he or she has a plan of release in place that will sufficiently attenuate any concerns such that release is possible. As Justice Gary Trotter observed in R. v. Dang, 2015 ONSC 4254 at para. 58, “the bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention.”

Discussion

[25] The assessment of secondary ground concerns requires, as I noted, that I consider a cluster of factors. I will begin with the circumstances of the offences.

The Alleged Offences

[26] B.S. faces, by my count, a total of 18 charges over five informations sworn between December 2018 and January 2020.

[27] On December 29, 2018, he was charged with driving while disqualified. He was pulled over in a routine traffic stop in Springwater Township and found to be operating a motor vehicle while subject to a driving prohibition. That prohibition was part of a sentence for a dangerous driving conviction imposed on August 9, 2018. B.S. was charged and released on a promise to appear before the Ontario Court of Justice on January 29, 2019.

[28] B.S. appeared before the court on January 29, 2019 and was ordered to re-appear February 12, 2019. He did not appear on that date and a bench warrant was issued. B.S. was arrested pursuant to that bench warrant on April 11, 2019. At the time of his arrest, he was found to be in possession of a small amount of cocaine. He was charged with possession of a Schedule I substance and released on a recognizance of bail.

[29] At 11:57 p.m. on September 16, 2019, B.S. was pulled over in a routine traffic stop in Bradford. He was, again, found to be driving while prohibited from doing so. He was arrested and charged with driving while prohibited. A pat down search yielded a small amount of cocaine inside a pocket. A search of the vehicle he was driving was conducted incident to his arrest. A fanny pack was located under the front passenger seat. Inside the pack was $11,000 in cash, 80 grams of cocaine, a digital scale and B.S.’s passport. He was charged additionally with breach of recognizance, possession of cocaine and trafficking in cocaine.

[30] B.S. was released on September 17, 2019 on a recognizance with two sureties in the total amount of $4,000. He was ordered to reside with one of his sureties, but had no other restrictions on his movements. He was also ordered, amongst other things, not to possess any unlawful drugs or substances.

[31] On December 19, 2019, B.S. was scheduled to appear in the Ontario Court of Justice. He failed to appear and another bench warrant was issued for his arrest. He was arrested and charged with failing to appear while at the Barrie court house on January 13, 2020.

[32] On January 3, 2020, a car in which B.S. was a passenger was pulled over in a routine traffic stop in Springwater Township at roughly 11:18 p.m. The officer who conducted the stop called for a second cruiser to attend the scene after the driver of the vehicle provided him with what he considered suspicious responses to inquiries about his identity and residential address. As the second cruiser arrived, the suspect vehicle fled the scene. It was later found abandoned and partially in a ditch. B.S. was arrested not far from the location of the vehicle. The driver of the vehicle was not located.

[33] On January 4, 2020 the police conducted a search along the route the suspect vehicle travelled between the traffic stop and the ditch where the vehicle ended up. They located a red bag along the side of the road. Inside the bag was $2,600 in cash, 13.8 grams of cocaine, a loaded firearm and an active bank card in B.S.’s name.

[34] B.S. was charged with possession of cocaine, possession of cocaine for the purpose of trafficking, possession of a concealed weapon (a knife), breach of recognizance, and a number of weapons-related offences.

The Strength of the Crown’s Case

[35] Obviously a judge on a bail application has a limited vantage point in terms of the evidentiary record against the accused. But at this point it seems to me that the Crown has a reasonably compelling-looking case against B.S.

[36] He appears to have been “caught red handed” as the saying goes, in terms of driving while prohibited. Similarly, he has been found to have small amounts of cocaine on his person on two occasions.

[37] The more serious charges involve the larger amounts of cocaine and the loaded firearm. There are undoubtedly triable issues with respect to those charges. Knowledge and possession can be tricky to establish. That said, B.S.’s passport was found in the packet containing cash, cocaine and scales on September 16, 2019 and his bank card was found in the packet containing cash, cocaine and a gun on January 4, 2020. That evidence would appear to be problematic for B.S.

B.S.’s Criminal Record

[38] B.S. has a criminal record. It is far from the worst I’ve seen, but it’s not great either. He has eight prior convictions between 2009 and 2018.

[39] Four convictions are for simple assaults. Two are for theft under $5,000. One is for failing to attend court. The last is for dangerous driving. The most significant sentence he has received was 45 days in jail for an assault in 2009.

The COVID-19 Pandemic

[40] There is little I can say about the impact of the novel coronavirus pandemic that has not already been said many times over in the tidal wave of bail review cases that have been released over the past month or so.

[41] The pandemic is bad. It has impacted every Canadian, of all walks of life, and in most aspects of their daily lives. It has changed the way we live, work, play, exercise, travel, shop, and relate to one another. It has infected at least 50,000 Canadians and killed some 3,000 already. It has had a profound effect on the economy. It has made heroes of some and fools of others. By all appearances it will continue to significantly affect our daily lives for many months to come.

[42] For the better part of a month, bail applicants around the province have been relying on an affidavit sworn on April 7, 2020 by Dr. Aaron Orkin in support the argument that they are at increased risk while in custody.

[43] Dr. Orkin is a physician and epidemiologist. His affidavit has generally been received, as it was in this case, as credible and trustworthy evidence pursuant to s. 518 of the Criminal Code.

[44] While I do not accept everything that Dr. Orkin says in his affidavit, I think he is correct about the elevated risks the virus poses to those in congregate living facilities, like nursing homes, cruise ships and jails. Indeed, experience to date has borne out his concerns.

[45] Everyone is by now familiar with the terms “flatten the curve” and “social distancing”. Flattening the curve is, as Dr. Orkin notes, the central strategy for the population health management of COVID-19. The key to flattening the curve is social distancing.

[46] Social distancing is particularly difficult in congregate living facilities. Some of the reasons for that are obvious; others perhaps less so. Dr. Orkin explains that: (a) Outbreaks in tight spaces happen very quickly and are nearly impossible to control once they happen; (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.

[47] Our Court of Appeal has accepted that outbreaks in prisons threaten not only inmates and staff at those facilities, but also the public at large. In R. v. Kazman, 2020 ONCA 251, Justice Harvison Young said the following, at para. 18:

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.

[48] B.S. filed his own affidavit in support of his application. He described in some detail the conditions on his range at CNCC. Among his observations: (a) He is held on a range with 16 cells. Cells are 12 feet by 8 feet in size. Each cell holds two inmates, who sleep on bunk beds. They share a toilet and sink; (b) The cells do not get cleaned by corrections staff. Inmates are responsible for cleaning their own cells, but they do not get proper cleaning supplies. B.S. has been doing his best to clean his cell with shampoo; (c) He has never been provided with a mask, disinfectant or hand sanitizer; (d) New inmates coming into the institution are held in a quarantine range, as are any inmates who display symptoms consistent with COVID-19; (e) He has to use a payphone to contact his counsel. The payphone is not cleaned or sanitized and is used by many other inmates; (f) Until last week jail guards were not wearing masks; (g) Food is delivered to the inmates by inmate servers. The servers do not wear masks or gloves; and, (h) Guards search inmates’ cells once per week. They wear gloves, but they do not change their gloves from cell to cell, so there is cross-contamination.

[49] In response to B.S.’s affidavit, the Crown produced a Will Say statement from Sergeant Jonathan Vanderboon. Each of Sgt. Vanderboon and B.S. were cross-examined on their statements during the bail review hearing.

[50] Sgt. Vanderboon is a security manager at CNCC. He responded to B.S.’s observations as follows: (a) Inmates are responsible for the cleaning of their own cells. They are provided with the following items: accelerated hydrogen peroxide solution, multi-purpose glass cleaner, floor cleaning soap, toilet bowl cleaning powder, rags, and mops; (b) Each range has 3 server/cleaners. They are responsible for the following duties: the cleaning of the dayroom areas, the serving of meals, the collection of laundry for exchange, and providing supplies to the other inmates in their range upon request; (c) Guards do not engage in the cleaning of the phones. Inmates may use their cleaning supplies to sanitize the phone; (d) The quarantine unit is separate from the general population. Inmates in the quarantine unit do not interact in any way whatsoever with the inmates in general population; (e) There are inmates at CNCC with pre-existing health conditions. These inmates, who do not have any signs of COVID-19, are provided with medications as required, however, it would be impossible to isolate and separate each of these inmates from all other inmates. However, these inmates are separated from the quarantined inmates; (f) Guards who work in the quarantine unit do not work in other units. Guards who work in general population do not work in the quarantine unit; (g) Masks are provided to inmates if they are being admitted and being moved to the quarantine ranges or being moved throughout the facility for video court, nurse sick call and other needs as they arise; (h) Social distancing is a difficult practice in an institutional setting due to the population numbers. This is why so many additional measures have been taken to mitigate the introduction of the virus into the facility, such as additional personal protection equipment, self-assessment procedures for all staff, taking the temperature of all staff entering the institution, and cancelling all non-essential visits and interviews; (i) Inmates who are deemed to be more vulnerable to the virus make up approximately 50% of the inmate population on any given day and cannot be segregated or quarantined unless there is just cause to do so, such as admission, symptoms, exposure, or a doctor’s order; and, (j) Inmates who demonstrate symptoms of COVID-19 are immediately quarantined and sent for testing to a local hospital.

[51] Sgt. Vanderboon was unable to say how many inmates at CNCC have displayed symptoms consistent with COVID-19. He could not say how many have been tested for the virus. He advised that the medical unit at CNCC could only hold ten inmates.

[52] Under cross-examination, Sgt. Vanderboon agreed that he could not say whether inmates on B.S.’s range were actually ever provided with cleaning supplies. He expressed hope that they would bring it to the attention of the staff if they were not.

[53] B.S. remained firm in his position that if there are cleaning supplies in the institution, they are not making their way to inmates.

[54] Clearly the evidence provided by Sgt. Vanderboon conflicts in a number of ways with B.S.’s evidence about what is happening in real time on his range. I have two general comments to make about these conflicts.

[55] First, this bail hearing is not a proxy for an inquiry into the Solicitor General’s response to the COVID-19 crisis. On this evidentiary record, I am in no position to resolve questions about the accuracy of the Solicitor’s General’s Information Note on its response to the COVID-19 pandemic. I am in no position to make factual findings about the sufficiency of that response. And I an in no position to say what B.S.’s risk is for contracting the virus at CNCC as compared to his risk of contracting it in the general population.

[56] What I am able to say is that he is in a congregate living facility where social distancing – the key factor identified by public health authorities in mitigating the pandemic – is impossible. I accept that cleaning on his range is likely substandard. But even if a higher level of diligence was applied to cleaning the ranges and cells, the problem of close contact persists. And it is that inevitable close contact that, in my view, creates a significant risk for the health of both inmates and the public at large.

[57] To date, CNCC has managed to avoid an outbreak within its walls. Whether that is due to the implementation of protocols that work or to good fortune I do not know. Perhaps it is a combination of the two. The experience at the Ontario Correctional Institute in Brampton, however, provides concrete evidence of how quickly and widely the virus can spread when it enters a correctional institution. Recently 60 inmates and 8 staff tested positive for the virus, necessitating a temporary closure of the facility and a relocation of inmates to another facility.

[58] B.S.’s COPD makes him vulnerable to a serious adverse outcome should he contract COVID-19. CNCC is unable to implement special precautions for their more vulnerable inmates like B.S. And B.S. really has no way to protect himself should the virus enter the institution. He cannot isolate himself, or socially distance in any meaningful way.

[59] I accept B.S.’s evidence that he is afraid about the risks that the virus poses to him and about his inability to take any precautionary measures against it.

[60] In my view, the impact of the COVID-19 pandemic may be considered in two respects in relation to the secondary ground. First, B.S. says he is motivated to stay out of jail because of the safety risk it poses to him. If I accept his evidence on this point, I may conclude that he is less likely to breach any conditions of bail imposed upon him. Second, when assessing the risk to public safety, I must take into account not only any risks posed by B.S.’s release, but also any risks that may be posed to the public by continuing his detention. The detention of any one inmate does not materially increase the risk to public health. But in the broader picture, reducing prison populations where reasonable and safe to do so is in the interests of public health.

The Proposed Plan of Release

[61] B.S. proposes a surety release with a house arrest provision. He proposes his long-time friend, A.W., as his surety.

[62] A.W. is married with two young children. He is a stone mason by trade. He has a home in Elliott Lake and an apartment in Toronto. Much of his work is done in the Toronto area and he stays in the apartment there during the week. He goes home to Elliott Lake on weekends.

[63] Initially, A.W. proposed to remain in Toronto and have B.S. reside and work with him there. But more recently his work in Toronto has largely ground to a halt. He still has work options in Elliott Lake, so he now plans to return there for the foreseeable future.

[64] A.W. testified during the bail review hearing. Like most people who offer themselves up as sureties, I found him to be well-meaning and sincere. He is aware of the nature of the charges against B.S. He appreciates that they are serious, but he believes B.S. has a genuine desire to turn his life around; to be a better person and a better parent to his three young children.

[65] A.W. is available to supervise B.S. 24 hours a day, 7 days a week. He will take B.S. with him to work during the day. B.S. has some experience in the stone industry.

[66] A.W. is prepared to pledge $5,000 to the court as security for the due performance by B.S. of any conditions of release imposed upon him. A.W. does not presently have that sum in cash. The restrictions on his ability to work and earn a living have had an impact on his cash flow, not surprisingly. Crown counsel expressed some concern about A.W.’s financial situation, but I accept that while he may have cash flow problems, they are temporary. Moreover, he owns a residence in Elliot Lake. A surety need not have liquid assets to back his or her pledge.

[67] B.S. also proposed electronic monitoring if the court considers it necessary. He filed the usual report from Recovery Science Corporation confirming their willingness and ability to provide electronic monitoring services. Their report was premised on B.S. residing in Toronto. No doubt they will be willing to provide services in Elliott Lake. I have no evidence, however, as to whether they have an ability to do so.

Analysis of Secondary Ground Issues

[68] The COVID-19 pandemic has given rise to a surge of bail review applications, many from individuals who might not traditionally be considered good candidates for release. There are a number of viable explanations for the surge. Some accused persons may have legitimate concerns about the risks of the virus. Others may be concerned about the suspension of normal court operations and the effect that suspension will have on the timing of trial dates. Still others may be willing to try a “Hail Mary pass”. Whatever the reason, it may ultimately be a good thing. The Supreme Court has been consistently conveying the message that we have too many accused persons languishing in pre-trial remand facilities. The COVID-19 crisis may provide as strong an impetus as anything else to act on that message.

[69] Having said that, the pandemic is not a justification for throwing open our prison doors in a panic. Public confidence in the administration of justice would be gutted should we take that approach. The state is justified in holding some accused persons pending their trials. The primary, secondary and tertiary grounds for detaining accused persons continue to robustly apply. The impact of the pandemic is but one factor to consider in the court’s analysis – albeit an important one.

[70] This is a difficult case. The balancing of factors that point in favour of continued detention and those that point towards release is delicate.

[71] On the negative side of the scale, I have to say that B.S. is not an ideal candidate for release. I do not think he is un-releasable, but the nature of the charges against him, the strength of the Crown’s case, and his criminal record all point towards continued detention.

[72] B.S. has a conviction for failing to appear in court. He faces two more charges of failing to appear. While he is presumed innocent of those charges, I have to say that the Crown’s case on those is extremely strong. It is similarly strong on the charges against B.S. for driving while prohibited by court order from doing so. He also presently faces two counts of breach of recognizance. There are legitimate questions about B.S.’s willingness to abide by court orders. In my view, Justice of the Peace Noordegraaf was on solid ground when she detained B.S.

[73] B.S. testified that he was going through a bad stretch in his life, had a “slight” addiction to drugs, and in the result, committed criminal offences. I found this part of B.S.’s testimony to be the least compelling. Apart from the fact that I do not know what a “slight” drug addiction is, I am not persuaded that going through a bad stretch is particularly mitigating of (1) committing a string of criminal offences; or (2) failing to abide by unequivocal court orders.

[74] Almost everyone goes through bad stretches in their lives. None of us asked to be born. Life is suffering. No one is immune from pain, heartache, disappointment and loss. But we live in a broad social community and we all have an implied contract with our fellow citizens to abide by a common code of behaviour, regardless of whether we are in a bad stretch. B.S. has broken that social contract on numerous occasions. Some of his conduct suggests he has no respect for it. And that is naturally concerning when one is considering the secondary ground for detention.

[75] On the positive side of the scale, B.S. has a solid surety plan of release in place. I am impressed with A.W. He is a good friend to B.S. He is a hard-working and successful tradesman. I found him to be sincere and well-intentioned. In my view he can be counted on to properly supervise B.S. and to report any breaches should they arise.

[76] B.S. testified that he can be counted on not to breach any conditions of his release. One would be forgiven for being suspicious of this assurance given B.S.’s track record.

[77] Bail hearings tend to be driven by propensity reasoning. Based on a person’s track record, what predictions can we make about his or her future dangerousness? It is far from a precise science and of course we must remain mindful of the fact that people can and do change.

[78] B.S. says he has had an epiphany of sorts while in custody over the past four months. He wants to stay clear of drugs. He wants to do better for himself and his children. It is impossible for me to say whether that is a genuinely held sentiment. I do, however, believe that most people can be counted on to act in their own self-interest. I believe that B.S.’s COPD diagnosis has been a concerning turn of events for him. I believe he is sincere about wanting to protect himself as best he can from exposure to the coronavirus. He will be motivated to stay out of remand facilities. How strong a motivating-factor that is for him is not something I can say. I consider it to be a factor that reduces the risk of future breaches, albeit only modestly.

[79] The final factor of significance pointing in favour of release relates to the public health concerns relative to COVID-19. Reducing the population of congregate living facilities, like jails, where it can reasonably and safely be done, makes sense from a public health perspective.

[80] COVID-19 does not make an inmate safe to release when he is in all other respects unsafe to release. But it can, in my view, tip the scales in favour of release in close call cases like this one.

[81] After considerable and anxious consideration, I am inclined to release B.S., principally on the strength of his proposed surety. While there is undoubtedly some risk that B.S. will breach the conditions of his release and commit other offences, I am satisfied – though just barely – that the risk of further offences or interference with the administration of justice is below the substantial likelihood threshold given the combination of the proposed surety and the motivating feature of B.S.’s COPD.

[82] While B.S. poses some risk to public safety, I am satisfied that the risk is sufficiently attenuated by his release plan and that he has met his onus on the secondary ground.

[83] B.S.’s counsel offered up the use of electronic monitoring. In view of the fact that B.S. is to be on 24/7 supervision and in light of my confidence in A.W., I do not see any meaningful benefit in adding an ankle bracelet.

Conclusion

[84] In conclusion, the detention order is set aside. B.S. is to be released on a Release Order with the following conditions:

1. This is a surety release. The surety is A.W. The amount of the surety pledge is $5,000;
2. To reside full-time with his surety at 63 Albert Street, Elliott Lake, Ontario or 5 Dufresne Court, Apartment 904, Toronto, Ontario. He is to notify the Ontario Provincial Police in writing at least 24 hours in advance of any movement between the Elliott Lake and Toronto residences.
3. To remain inside his residence at all times between 11:00 p.m. and 6:00 a.m. except in the event of a medical emergency.
4. To remain inside his residence at all other times unless in the direct and continuous presence of his surety.
5. To present himself at the door within five minutes when asked to do so by a police officer to ensure compliance with this Order.
6. To remain in the Province of Ontario.
7. To not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
8. To not possess or consume any unlawful drugs or substances (as defined in the Controlled Drugs and Substances Act) except with a valid prescription in his own name.

Released: April 30, 2020 C. Boswell J.