Court File and Parties
COURT FILE NO.: CR-20- 60000124-00BR DATE: 20200430 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – B.M.D.
Counsel: Catherine Rhinelander, for the Provincial Crown Victoria Rivers, for the Public Prosecution Service of Canada Adele Monaco, for B.M.D.
HEARD: April 24, 2020
DECISION ON DETENTION REVIEW
P. J. Monahan J.
[1] BMD has been detained since October 15, 2018 in connection with a variety of firearm and drug-related offences. This is a review of his detention pursuant to s. 525 of the Criminal Code.
[2] The detention review hearing proceeded by audio conference due to the COVID-19 pandemic. BMD participated from the Toronto South Detention Centre (“Toronto South”), where he is currently being held.
[3] BMD has been denied bail on two prior occasions, the first at an initial bail hearing before Justice of the Peace Gilani on January 4, 2019, and the second at a bail review held before Corrick J. on August 27, 2019.
[4] It is agreed that the onus is on BMD to show why his continued detention in custody is not justified. [1] He argues that he has satisfied this onus on the basis of a significantly strengthened plan of release, which provides for house arrest with two sureties, as well as GPS electronic monitoring. He also argues that the COVID-19 pandemic is relevant on both the secondary and tertiary grounds and favours his release from custody.
[5] For reasons described below, I find that the COVID-19 pandemic is not relevant in considering whether BMD has satisfied the concerns arising under the secondary ground. Nevertheless, in light of the strengthened plan of release, particularly the addition of electronic monitoring in combination with two responsible sureties, I find that it is not substantially likely that BMD will commit criminal offences or interfere with the administration of justice if he is released from custody. I find that BMD’s continued detention is not necessary for the protection or safety of the public, and that he has met his onus under the secondary ground.
[6] With respect to the tertiary ground, whether BMD’s continued detention is necessary to maintain public confidence in the administration of justice, the four enumerated factors identified in s. 515 (10) (c) all favour BMD’s continued detention. However, the strengthened plan of release as well as the impact of COVID-19 on BMD are relevant considerations favouring BMD’s release. On balance, I find that BMD has met his onus under the tertiary ground and his continued detention is not necessary in order to maintain public confidence in the administration of justice.
[7] I therefore order BMD to be released in accordance with the reasons and on the terms set out below.
Background
[8] At approximately 4:51 PM on October 15, 2018, police received information from a confidential informant that two persons were on their way to shoot someone. Acting on that information, police identified two persons of interest and set up surveillance at a residential Toronto address where they were believed to be located. At 7:05 PM, police observed two individuals matching the descriptions of the persons of interest exit the residence and get into the backseat of an Uber.
[9] The police intercepted the Uber. BMD and a second individual, DB, were in the backseat. In a satchel around DB’s neck was a loaded semiautomatic firearm. In a travel bag found in the backseat between DB and BMD was another 38 calibre firearm, 45 rounds of 38 calibre ammunition and 29 grams of fentanyl mixed with heroin. The Crown alleges that the fentanyl had a street value of between $11,730 and $19,550.
[10] As a result of this incident, BMD was charged with a variety of Criminal Code offences, including possession of a loaded prohibited firearm with ammunition, contrary to s. 95 (1), and possession of a prohibited firearm while under a prohibition order, contrary to s. 117.01 (1). He is also charged under the CDSA with possession of fentanyl for the purpose of trafficking, contrary to s. 5 (2).
[11] BMD has a prior related criminal record. In May 2011, when he was 16 years old, BMD was convicted as a youth of robbery and placed on a two-year probation with a weapons prohibition order. In March 2014, he was again convicted as a youth of carrying a concealed weapon, which was a steak knife. He was fined $250 and prohibited from possessing any weapons for a period of two years.
[12] In September 2016, as an adult, he was convicted in the province of Québec in connection with a May 2014 armed robbery of a jewelry store. He received an effective sentence of five years, which was reduced to 17 months after he was given credit for presentence custody.
[13] At the time of his arrest in October 2018, BMD was subject to a March 7, 2018 release order that prohibited him from possessing drugs or firearms. He is charged with failing to comply with that release order, based on his alleged possession of fentanyl on October 15, 2018.
Initial Bail Hearing
[14] At the December 2018 bail hearing, the plan of release that was proposed was that BMD would reside with his father, BD Senior, who would serve as one of his sureties. At the time of the initial bail hearing, BD Senior lived in Aurora and worked for DHL. He was prepared to pledge the entire equity in his home, namely $75,000, as bail for his son.
[15] Because BD Senior worked five days a week, it was proposed that BMD’s sister, SD, would serve as a second surety. SD, who was then 20 years old, was a student living in Toronto. It was proposed that she would travel to Aurora on Mondays, Tuesdays and Wednesdays and supervise her brother while her father was at work. SD was prepared to pledge $5000, her entire savings, as bail for BMD.
[16] In her reasons for decision delivered on January 4, 2019, the Justice of the Peace noted that SD did not have a motor vehicle to facilitate her travel from Toronto to Aurora and would have to use public transportation. The Justice of the Peace did not see how such an arrangement was feasible or sustainable for the extended period of time that would be required for the charges to reach the trial stage. Her Worship was also concerned over the fact that BMD would not be subject to any direct supervision on Thursdays or Fridays while BD Senior was away at work and SD was in school. The Justice of the Peace was of the view that, without constant supervision, there was a substantial likelihood that BMD would commit further offences. Accordingly, BMD had failed to address concerns arising under the secondary ground.
[17] With respect to the tertiary ground, the Justice of the Peace found that a reasonable, well-informed member of the public would be outraged if BMD was released on the basis of the weak plan presented.
[18] Accordingly, the Justice of the Peace ordered BMD detained under both the secondary and tertiary grounds.
August 2019 Bail Review
[19] BMD’s trial was originally scheduled to take place on May 6 – 10, 2019. However, on April 23, 2019, counsel for BMD brought an adjournment application as she was involved in a homicide trial that had exceeded its initial timelines. This adjournment request was granted, and the trial was rescheduled for December 16 – 20, 2019.
[20] An application to review BMD’s detention was heard on August 26 and 27, 2019 by Corrick J. of this court. The same sureties, namely, BD Senior and SD, were proposed to supervise BMD’s release. By this time, BD Senior and SD had moved in with BD Senior’s mother (BMD’s grandmother) in Brampton. This eliminated the necessity for SD to travel from Toronto to Aurora. Furthermore, SD was no longer a student and was willing to schedule her work such that she would be present whenever her father was working at DHL. Therefore, BMD would be subject to supervision 24 hours a day, seven days a week.
[21] With respect to the secondary ground, Corrick J. noted that the offences that BMD is alleged to have committed are very serious and the Crown’s case appeared to be reasonably strong. For a young man, BMD had amassed a considerable record of criminal convictions involving firearms, weapons and violence. If BMD committed another similar offence, the risk of harm to the public would be very high.
[22] Corrick J. accepted that both proposed sureties were committed and sincere in their intention to supervise BMD. However, Corrick J.’s concern was with BMD himself, in whom she lacked confidence. BMD had been out of custody since August 2017 and neither his sister nor his father had been able to influence him sufficiently to find a different path in life. In fact, his current co-accused was the same person with whom he was convicted of robbing the jewelry store at gunpoint in Québec in 2014. Accordingly, Corrick J. found that BMD had not met his onus on the secondary ground.
[23] With respect to the tertiary ground, the Crown’s case appeared to be relatively strong and the offences with which BMD is charged are extremely serious. There it is no doubt that BMD would face a very lengthy term of imprisonment if convicted. Due to her lack of confidence in BMD, Corrick J. was of the view that his release would cause the public to lose confidence in the administration of justice. He was therefore also detained under the tertiary ground.
April 24, 2020 Detention Review
a. Overview
[24] In December 2019, counsel for BMD brought an application to adjourn the second trial date as she was once again caught in an ongoing trial that had exceeded its anticipated timelines. This application was opposed by the Crown, but the adjournment was granted and a new trial was set for June 8 –12, 2020. Although the trial is still scheduled to proceed on that date, it is unclear whether this will be possible given the current situation with respect to the COVID-19 pandemic.
[25] In these circumstances, an application to review BMD’s continued detention under s. 525 came before me on April 24, 2020. BMD argued that, given a number of changes in circumstance, his continued detention is no longer necessary.
[26] First, BMD argued that the plan of release has been significantly strengthened by the addition of electronic monitoring. Along with the supervision of the two sureties, his father and sister, the plan of release is now sufficiently strong to allay any concerns under both the secondary and tertiary grounds.
[27] BMD further noted that he had brought an application to exclude evidence seized at the time of his October 15, 2018 arrest, on the basis that police had violated his rights under the Canadian Charter of Rights and Freedoms. BMD argued that this impacted the strength of the Crown’s case, a relevant consideration under both the secondary and tertiary grounds.
[28] BMD also requested the court to consider the impact his current incarceration at Toronto South is having on his overall well-being, specifically, his mental and physical wellness. BMD filed an affidavit in which he affirmed that his mental health has been greatly affected as a consequence of poor jail conditions, understaffing and ongoing lockdowns at Toronto South. BMD stated that these conditions have worsened significantly since the COVID-19 pandemic, which has resulted in further lockdowns and cancellation of all programming. BMD is also fearful of contracting COVID-19, since he is not able to practice social distancing from his cellmate and is in contact with correctional staff, who do not wear masks or gloves.
b. Evidence on Electronic Monitoring
[29] BMD proposed that he be subject to GPS electronic monitoring to be provided by Recovery Science Corporation ("RSC"). Stephen Tan, RSC’s Director of Operations, provided evidence as to the nature and effectiveness of the electronic monitoring service provided by his company.
[30] With the GPS electronic monitoring, an ankle bracelet is installed on the person being monitored. The ankle bracelet uses the GPS system to record the subject’s location on a minute by minute basis. Although when indoors there is a margin of error of up to 50 feet, when the person is outdoors, there are as many as a dozen satellites engaged and the GPS system can determine the person’s location with a high degree of accuracy.
[31] Mr. Tan indicated that RSC is currently monitoring approximately 290 persons who have been released on bail in Canada, the vast majority of those being in Ontario. There has been a significant increase in the demand for their service since the beginning of March 2020, coinciding with the spread of COVID-19.
[32] Mr. Tan acknowledged that the ankle bracelet could be easily cut off, although this would immediately trigger an alert and the police would be notified within a matter of minutes. Mr. Tan indicated that there are very few cases in which the individual cuts off the ankle bracelet. Since 2010, RSC has monitored approximately 880 persons released from custody, and in only four percent of those cases has the ankle bracelet been removed improperly. Mr. Tan indicated that in a further eight percent of cases, the individual has violated an inclusion or exclusion zone. [2] In the remaining 88 percent of cases, the individual has complied with conditions governing their permitted location.
c. Expert Evidence Regarding COVID-19
[33] BMD filed an affidavit dated April 7, 2020 from Dr. Aaron Orkin, a physician, epidemiologist and an Assistant Professor in the Department of Family and Community Medicine at the University of Toronto. Dr. Orkin has specific expertise on the COVID-19 pandemic. He is the Medical Director of the St. Joseph’s Health Center COVID-19 Assessment Centre. Additionally, as the Population Medicine Lead for Inner City Health Associates, he has a central role in planning and implementing a strategy to respond to COVID-19 among Toronto’s homeless population.
[34] Dr. Orkin’s affidavit outlines the particular risks from COVID-19 for those experiencing incarceration. Dr. Orkin points out that it is extremely difficult, if not impossible, to implement social distancing in a “congregate living facility” – settings where people live together – such as long-term care facilities, homeless shelters and correctional facilities.
[35] Dr. Orkin is of the opinion that it is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada, and therefore extremely likely that almost all inmates in these settings will be exposed in one way or another. It is not clear whether this prediction takes into account the possibility that such exposure could be limited through mitigating measures implemented by the correctional institutions, or by individual inmates or staff.
[36] While certain statements and predictions in Dr. Orkin’s affidavit are not without controversy, I accept Dr. Orkin’s overall conclusion that an aggressive approach should be taken to de-populating correctional facilities in Ontario. It is evident that this will reduce the risk of infection for individuals who are discharged from the facilities as well as the people who remain there.
d. Ministry Response to COVID-19
[37] The Crown provided an information note prepared by the Ministry of the Solicitor General dated April 21, 2020 (the “April 21, 2020 Ministry Note”) outlining the strategies being implemented to limit the effects of COVID-19 on the inmate population and correctional staff.
[38] According to the April 21, 2020 Ministry Note, the Ministry has taken a number of initiatives to reduce the inmate population in provincial institutions, including proactively undertaking a temporary absence review for all inmates in order to determine whether they are eligible for early release. Inmates chosen must be near the end of their sentences and be considered a low risk to reoffend.
[39] The result of this and various other initiatives is that, over a period of approximately five weeks, the inmate population across the province’s 25 correctional institutions has been reduced by approximately 32%, from just under 8400 inmates on March 16, 2020 to 5707 inmates on April 21, 2020. This is the lowest daily inmate count in Ontario’s correctional institutions since 1986, [3] the significance of which is underscored by the fact that Ontario’s current population is over 50% larger than it was 34 years ago.
[40] The April 21, 2020 Ministry Note sets out the then-current number of confirmed cases of COVID-19 amongst inmates or correctional staff. Most noteworthy is a significant outbreak of COVID-19 at the Ontario Correctional Institute in Brampton, Ontario (the “OCI”) on April 17, 2020. At least sixty inmates and eight staff tested positive for COVID-19, resulting in the temporary closure of the OCI and the transfer of all 112 inmates to Toronto South. The Ministry states that the OCI inmates have been placed in medical isolation in a separate part of Toronto South so as to reduce any potential spread of COVID-19.
[41] Apart from the situation at the OCI, the Ministry appears to have been relatively successful thus far in limiting the spread of COVID-19 amongst inmates and staff at the province’s correctional institutions. As of April 21, 2020, five inmates at Toronto South have tested positive for COVID-19, along with one inmate at the Maplehurst Correctional Complex and one inmate at the Monteith Correctional Complex. One staff member at Toronto South and one staff member at the Hamilton-Wentworth Detention Centre have also tested positive for COVID-19. As of April 21, 2020, there were no confirmed cases amongst either inmates or staff at the remaining 20 provincial correctional institutions.
Applicable Legal Principles
[42] As Chief Justice Wagner observed in R. v. Myers, 2019 SCC 18, a detention review hearing under s. 525 proceeds on the basis that the right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. [4] In the pre-trial context, “release – at the earliest opportunity and in the least onerous manner – is the default presumption in Canadian criminal law. Pre-trial detention should be regarded as the exception, not the rule. [5]
[43] Yet, as Chief Justice Wagner also observed, there are a significant number of individuals in remand custody at any given time in Canada. [6] In fact, in Ontario, on average, over 60% of those in custody in the province’s correctional institutions are awaiting trial. [7]
[44] The judge at the s. 525 hearing should show respect for any findings of fact made by the first level decision-maker if there is no cause to interfere with them. At the same time, the s. 525 judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact on the question of whether his or her continued detention in custody is justified. [8] The reviewing judge should not merely "rubber-stamp" prior detention decisions since s. 525 serves an important independent safeguard function. [9]
[45] The Crown takes the position that BMD’s continued detention is justified under both the secondary and tertiary grounds in s. 515 (10) (b) and (c).
[46] An analysis of the secondary ground requires the court to undertake a risk assessment to determine whether, having regard to all the circumstances, it is necessary to continue the detention of the accused for the protection or safety of the public. This risk assessment must include a consideration of whether it is substantially likely that the accused will, if released, commit a criminal offence or interfere with the administration of justice. It is relevant to consider the nature of the alleged offences, the circumstances surrounding their alleged commission, the likelihood of conviction and the danger that the release of the accused would pose to the community.
[47] In assessing the tertiary ground, whether an accused’s detention is necessary to maintain confidence in the administration of justice, section 515 (10) (c) requires the court to have regard to four circumstances in particular:
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.
[48] The leading case on the application of the tertiary ground for detention is R. v. St. Cloud, 2015 SCC 27, [10] where Wagner J. (as he then was) held that even if all four of these enumerated circumstances support a detention order, detention of the accused should not automatically follow. The four listed circumstances are simply the “main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country.” [11] Other circumstances which Wagner J. identified as being relevant include the personal circumstances of the accused, including his age, criminal record, and physical or mental condition. [12]
[49] No single circumstance is determinative. The justice must consider the combined effect of all of the circumstances relevant to each particular case in determining whether detention is justified in order to maintain public confidence in the administration of justice. [13]
Analysis
a. The Secondary Ground
i. General Considerations
[50] In my view, the central issue in relation to the secondary ground is whether the addition of electronic monitoring, in conjunction with the other elements of the proposed plan of release, is sufficient to allay the public safety concerns arising from a decision to release BMD from custody. [14]
[51] I make this observation since, in my view, I am not persuaded by BMD’s other submissions in relation to the secondary ground.
[52] BMD argues that the fact he has brought a Charter application to exclude evidence seized by the police at the time of his arrest materially affects the strength of the Crown’s case. I do not agree. Having reviewed the submissions from both parties on BMD’s Charter application, it is evident that BMD has an arguable Charter claim. At the same time, there are a number of significant hurdles that will need to be overcome if BMD is to succeed in having the evidence excluded at trial. At this stage, I do not find that the Charter application affects the strength of the Crown’s case, which continues to be reasonably strong, as both Justice of the Peace Gilani and Corrick J. found.
[53] Nor, in my view, is the existence of COVID-19 or the current conditions of detention at Toronto South relevant to whether BMD has met his onus on the secondary ground. BMD argued that it was less likely that he will breach the terms of his release because of his fear of contracting COVID-19 in a correctional institution. BMD also argued that the current conditions of detention at Toronto South are so onerous that this would induce him to comply with the terms of his release.
[54] BMD testified that, quite apart from COVID-19, or the current conditions at Toronto South, he seeks to avoid detention. In fact, he claimed that on earlier occasions, some years ago, he pleaded guilty to certain offences because he believed that by doing so he could avoid a custodial sentence. It is clear, and I accept, that BMD has for some time had a strong desire to avoid detention. Yet that aversion to detention was not sufficient to deter BMD from breaching court-ordered conditions in the past.
[55] No doubt the threat of COVID-19, and the current conditions at Toronto South, have reinforced BMD’s pre-existing aversion to detention. But given his prior history, I see no basis upon which I could conclude that these circumstances are such as to materially affect BMD’s compliance (or failure to comply) with the terms of his release.
ii. The Deterrent Effect of GPS Electronic Monitoring
[56] In considering whether and how GPS electronic monitoring might meaningfully contribute to a plan of release, it is important to recognize the role and function of electronic monitoring. Generally, electronic monitoring does not seek to prevent a person who intends to commit a criminal offence from carrying out that intention but, rather, to deter a person from forming that intention in the first place.
[57] It is now well established that the certainty, severity and swiftness of criminal sanctions are key factors in deterring crime. [15] GPS electronic monitoring, because it provides continuous oversight of an individual, increases the certainty that police will detect a violation of release conditions, and also makes such detection immediate. In addition, the location data obtained by GPS satellites allows police to track the location of the individual and increases the likelihood that he or she will be apprehended quickly should they flee and/or commit further crimes. It also provides a record of the individual’s location, which may assist in the prosecution of any crimes committed while on release.
[58] As such, other things being equal, one would expect electronic monitoring to have a significant deterrent effect on those individuals who are subject to such monitoring, thereby inducing increased compliance with their conditions of release. As Nordheimer J. (as he then was) observed in R v. Doucette, [2016] O.J. No. 852 (S.C.), the individual being monitored knows that, “in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area.” [16] Nordheimer J. noted that this greatly reduces the window of opportunity for the commission of an offence.
[59] To be sure, electronic monitoring will not eliminate the possibility of breaching certain release conditions. There will be a certain proportion of individuals who may calculate that, notwithstanding the continuous monitoring, they will nevertheless be successful in fleeing and evading police apprehension. There will also be those determined or resolved to commit certain crimes regardless of whether they are subsequently apprehended. Nevertheless, one would expect the presence of electronic monitoring to contribute materially to greater compliance with release conditions. [17]
iii. The Role of Electronic Monitoring in BMD’s Plan of Release
[60] Regardless of whether electronic monitoring in general may have a deterrent effect, the Crown takes the position that electronic monitoring will not be effective in ensuring that BMD complies with the terms of his release. The Crown observes that there is nothing to prevent BMD from simply cutting off the ankle bracelet and fleeing. It would take some minutes, and perhaps considerably longer, for the police to arrive on scene. By that time, BMD would be long gone. Moreover, while the ankle bracelet enables the monitoring of BMD’s location (assuming he has not improperly removed the bracelet), it does not permit observation of his behaviour. As such, even if BMD remains within his grandmother’s residence, he will still be able commit further crimes.
[61] I find that the risk of BMD cutting off the ankle bracelet to be low. As Stephen Tan indicated in his evidence, experience in Ontario over the last decade suggests that individuals on pre-trial release rarely cut off an ankle bracelet. The Crown has not raised any primary ground concerns in relation to BMD, which suggests that he is not regarded as a flight risk. On prior occasions when he has been released, he has appeared in court and reported to police as required.
[62] In any event, the issue is not whether it is possible that BMD will cut off the ankle bracelet but, rather, whether there is a “substantial likelihood” that he will do so. Having heard from BMD, and considering his prior conduct while on release in the past, I do not find that there is any substantial likelihood that BMD would cut off an ankle bracelet and attempt to flee.
[63] As for the concern that BMD would be able to commit further criminal offences even while wearing the ankle bracelet within his grandmother’s residence, it is important to recognize that the electronic monitoring is merely one component of the proposed plan of release. BMD will also be subject to 24-hour supervision by either his father or his sister, who will be living with him. Although the GPS satellites cannot observe what BMD is doing when he is at home, the sureties can and, I believe, will. Having heard from both sureties, I find (consistent with the finding of Corrick J.) that they understand and take seriously their responsibilities as sureties.
[64] While there is no guarantee that BMD will not commit further crimes, no such guarantee is required. Based on the release plan as a whole, I do not find there is a substantial likelihood that BMD will commit further crimes if released.
[65] Accordingly, I find that BMD has met his onus on the secondary ground, and shown that his continued detention is not necessary for the protection or safety of the public.
b. The Tertiary Ground
[66] The issue in relation to the tertiary ground is whether BMD’s continued detention is necessary to maintain public confidence in the administration of justice.
[67] The starting point of the analysis is that the circumstances which resulted in BMD’s detention on the tertiary ground at the two earlier bail proceedings continue to apply. The Crown has a strong case, the offences with which he is charged are serious crimes involving firearms and drugs, and he is likely facing a substantial jail term if convicted.
[68] On the other hand, there are a number of factors which would tend to support his release from custody.
[69] Of particular importance is the strengthened plan of release. As Trotter J. (as he then was) noted in R. v. Dang, 2015 ONSC 4254, an accused person’s plan of release is relevant to whether public confidence in the administration of justice can be maintained if the person is to be released: [18]
A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515 (10) (b), but it may also impact on the application of s. 515 (10) (c). 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. I see nothing wrong with this reality being reflected in s. 515 (10) (c).
[70] In this case, I have found that, with the addition of electronic monitoring, the proposed plan of release is sufficiently robust such that BMD’s continued detention is no longer necessary for the protection or safety of the public. The corollary is that his release would not undermine public confidence in the administration of justice.
[71] Also relevant is the fact that Ontario continues to grapple with the extreme challenges posed by the COVID-19 pandemic. There is now a substantial body of jurisprudence from this court finding that the COVID-19 pandemic constitutes a material change of circumstances which must be taken into account in assessing whether an individual’s detention is justified under the tertiary ground. [19]
[72] While there were certain aspects of Dr. Orkin’s expert report that are open to question, I have accepted his conclusion that it is desirable to aggressively reduce the inmate population in Ontario’s correctional institutions. The Ministry seems to have adopted precisely that strategy in order to reduce the likelihood of transmission of the virus within its facilities, as set out in the April 21, 2020 Ministry Note.
[73] Although BMD is just 25 years old without any underlying health conditions, his release will further reduce the risk of infection at Toronto South. Assuming, as I have found, that the strict conditions of his release means that he will not pose a threat to public safety, this is a further consideration favouring his release from custody.
[74] I therefore find that BMD has met his onus on the tertiary ground.
Disposition
[75] I order BMD released on bail on the following terms, subject to adjustment in light of further submissions from counsel:
a. BMD shall be under the supervision of two sureties, BD Senior and SD, who will pledge the following amounts without a cash deposit (BD Senior – $75,000; SD – $10,000) b. BMD shall reside with BD Senior and SD at his grandmother’s residence in Brampton, Ontario; c. BMD shall remain in the Brampton residence at all times except for medical emergencies, to attend court, or when in the direct presence of one of his sureties; d. BMD will be subject to a GPS monitoring system administered by Recovery Science Corporation, and the monitoring system shall be functioning and effective within 24 hours of his release; e. BMD will have no contact with the co-accused DB; f. BMD will keep the peace and be of good behavior; and g. BMD will not possess any weapons as defined by the Criminal Code.
[76] I close with a further observation of a more general nature.
[77] BMD has been held in custody awaiting trial for 563 days. The principal reason why he is being released now, rather than spending further time in custody, is that his father is prepared to pay approximately $600 per month for the GPS monitoring system to be administered by RSC. This is a considerable financial burden for BD Senior, whose annual income is approximately $65,000.
[78] There are likely others who remain in custody who would be candidates for release but for their inability to fund the considerable cost associated with electronic monitoring. This is not only a needless and inappropriate deprivation of their liberty, it also entails a tremendous cost to the taxpayer, since the cost of funding electronic monitoring is a fraction of the daily cost to house an inmate in one of the province’s correctional institutions. Yet the Ministry does not provide funding for the cost of electronic monitoring in the pre-trial context, leaving it to those seeking their release to cover the costs, if they can. Given that the COVID-19 pandemic will be with us for some time, and the Ministry will continue to seek ways to reduce the inmate population without compromising public safety, it seems an opportune moment to revisit the funding of electronic monitoring for those seeking pre-trial release in Ontario.
P. J. Monahan J.
Released: April 30, 2020
COURT FILE NO.: CR-20-60000124-00BR DATE: 20200430 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – B.M.D. DECISION ON DETENTION REVIEW P. J. Monahan J. Released: April 30, 2020
[1] BMD is charged with various firearm-related offences while under weapons prohibition orders issued under s. 109 of the Criminal Code. He is also charged with trafficking in a controlled substance under s. 5 the Controlled Drugs and Substances Act, S. C. 1996, c. 19 (the "CDSA"), an offence punishable by imprisonment for life.
[2] An "inclusion zone" is an area within which the subject is required to remain, while an "exclusion zone" is an area which the subject is prohibited from entering.
[3] Ontario's daily count of inmates in the province's correctional institutions in 1986-87 was 5642. See Statistics Canada, Average counts of Adults in Provincial and Territorial Correctional Programs, Table 35-10-0154-01, available at https://doi.org/10.25318/3510015401-eng.
[4] R. v. Myers, 2019 SCC 18 ("Myers") at para 1.
[5] Myers, at para 1.
[6] Myers, at para 2.
[7] See Statistics Canada, Average counts of Adults in Provincial and Territorial Correctional Programs, Table 35-10-0154-01, available at https://doi.org/10.25318/3510015401-eng.
[8] Myers, at paras 48 to 49.
[9] Myers, at para 55.
[10] 2015 SCC 27 ("St. Cloud").
[11] St. Cloud, at para 69.
[12] St. Cloud, at para 71.
[13] St. Cloud, at para 87.
[14] I note that electronic monitoring was not proposed at either of the two prior bail hearings and thus was not considered on those occasions.
[15] See R. v. Nur, 2015 SCC 15, at paras 113 to 114; Robert Apel and Daniel Nagin, "General Deterrence: A Review of Recent Evidence," in Crime and Public Policy, J. Q. Wilson and J. Petersilia eds., Oxford University Press, January 2011, pp. 411 – 436.
[16] R. v. Doucette, [2016] O.J. No. 852 (S.C.), at para 5.
[17] See R. v. Papasotiriou, 2018 ONCA 719 at para 30; R. v. Rajan, 2020 ONSC 2118 at paras 31 to 34.
[18] R. v. Dang, 2015 ONSC 4254 at para 58.
[19] See, for example, R. v. J.S., 2020 ONSC 1710; R. v. T.L., 2020 ONSC 1885; R. v. T.K., 2020 ONSC 1935; R. v. Rajan, 2020 ONSC 2118; and R. v. Williams, 2020 ONSC 2237.