R. v. K.T.S., 2020 ONSC 2672

COURT FILE NO.: CR-3141-00BR (Chatham)

DATE: 1 May, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Regina

– and –

K.T.S.

N. Bazylko, for the Provincial Crown and as agent for T. Mathany for the Federal Crown

G. Singh, for the Accused

HEARD: April 16 and 20, 2020

RESTRICTION on publication

Information contained in this judgment is subject to a publication restriction under subsection 517(1) of the Criminal Code.

REASONS ON SECTION 525 DETENTION REVIEW

MUNROE j.:

1In the late morning of December 12, 2019, police in the Municipality of Chatham-Kent arrested a twenty-four-year old man from the Toronto area for firearm and drug charges. According to the police, the accused, K.T.S, was driving west on Highway 401 with the butt-end of a prohibited handgun containing prohibited armor-piercing ammunition (including one in the chamber ready to be fired) mere inches and a split second away from a hand on the centre console shifter. Also, in the same compartment with the gun were hard drugs: methamphetamine, fentanyl, and suspected cocaine.

2Five years earlier, at age 19, Mr. T.S. was prohibited from possessing any firearm as part of a 2015 sentence that included a global four-year prison term for armed robbery using a firearm in connection with a criminal organization, use of an imitation firearm during the commission of an indictable offence, and a breach of a bail condition. This was not the first brush with the law for Mr. T.S. In his short life-time, Mr. T.S. has amassed convictions for six other robberies, an assault, an utter threat and a breach of a youth court disposition.¹

3Mr. T.S. was detained following a bail hearing on both the secondary and tertiary grounds. He now is before this court for a detention review hearing pursuant to s. 525 of the Criminal Code of Canada, R.S.C., 1985, c. C-46. The paramount ground raised by the defence is the current COVID-19 pandemic.

4A hearing was held over two days by audio conference on consent. At the conclusion of the hearing, I found that Mr. T.S.’s continued detention was justified on both the secondary and tertiary grounds. I advised that written reasons for this decision would follow. These are my reasons.

Procedural History

5Mr. T.S. is in custody on charges arising out of a traffic stop on December 12, 2019: possession for the purpose of trafficking of three controlled substances, namely, cocaine, fentanyl and methamphetamine and a series of firearm charges alleging possession of a prohibited firearm and prohibited ammunition, including possession while prohibited from doing so.²

6After a bail hearing, Mr. T.S. was ordered detained by Justice of the Peace Auger at Chatham on January 7, 2020 under both the secondary and tertiary grounds.

7A s. 525 hearing was set at the earliest opportunity, for April 16, 2020. An audio conference hearing took place over two days during the COVID-19 pandemic when in-person hearings before the Ontario Superior Court of Justice had been suspended.³ Mr. T.S. participated in the conference call from the South West Detention Centre where he is being held.

Allegations

8In the late morning, OPP Constable Lisa Peck stopped a westbound black Volkswagen Jetta on Highway 401 in the Municipality of Chatham-Kent for allegedly travelling 130 kph in a 100 kph speed zone.

9There were three occupants of the motor vehicle: Mr. T.S. was in the driver’s seat, a female young person was in the front passenger seat, and Mr. A.C. was in the rear seat, behind the front seat passenger.

10According to the police, the initial traffic stop led to the finding of a bag of cannabis. Mr. A.C. was arrested on Toronto arrest warrants. A subsequent search of the car pursuant to the Cannabis Control Act 2017, S.O. 2017, C.26, Sched. 1, resulted in the finding of the gun, that then led to the arrest of Mr. T.S. and the young front seat passenger. Back at the station, the police found the controlled substances hidden in the centre console space.

11According to the police, the gun and drugs were found in a factory-enclosed area below the centre console: the top of the side plastic molding panel of the centre console, passenger side, had been disconnected leaving a small gap. It was through this top gap, slightly expanded and looking down, that the officer saw the butt-end of the handgun. An exhibit photo shows the disconnected molding and its very close proximity to the centre console shifter.

12At the police station, the drugs allegedly were found in this same area. Multiple substances, separately packaged, were found in a zip-lock bag. On the consent of the parties, it was agreed that Health Canada confirmed the presence of methamphetamine and a mixture of fentanyl and heroin, but had not yet confirmed the presence of cocaine.⁴ According to the police, the approximate weights of the seized substances were as follows: suspected cocaine – 65 grams; methamphetamine – 15 grams; and fentanyl – less than one gram.⁵

Information 19-1825

13Mr. T.S. and Mr. A.C. are jointly charged with three counts of possession of a controlled substance for the purpose of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. The substances alleged are cocaine, fentanyl, and methamphetamine.

Information 20-1916⁶

14Mr. T.S. and Mr. A.C. are jointly charged in this Criminal Code information that alleges firearm crimes, all involving a 9mm semi-automatic pistol and 9mm ammunition, both alleged to be prohibited. The most serious allegations are pursuant to s. 95, possession of a loaded prohibited firearm, and pursuant to s. 117.01(1), possession of prohibited firearm and ammunition while under a prohibition order.

Background of the Accused

15Mr. T.S. is 24 years old. He was born July 8, 1995. He identifies his mother’s address, ______________, Ajax, Ontario, on his driver’s license and on his release papers for the Durham Region case. At the initial bail hearing, Mr. T.S. said that in 2019 he did not have one place where he slept every night. Mostly he stayed at the home of his girlfriend, M. I., but he also stayed with his grandmother and occasionally with his mother.

16He completed his high school diploma while in the penitentiary.

17Upon release on parole in 2017, Mr. T.S. started his own subcontracting business. As Mr. T.S. explained in his initial bail hearing, he secures the contract and then gets others to do the physical work because he has a bad back. He reports the business is just starting. In 2019 he had three contracts and made between $3,000 to $4,000. Since his release from prison, he has worked temporary jobs and his own business.

18There is no indication that Mr. T.S. has ever had a substance abuse problem.

Criminal Record of the Accused

19Mr. T.S. has the following criminal record:

05 Nov 2009 Toronto (Youth Court) Robbery x5 time served (219

days) + probation

(2 yrs less 1 day)

concurrent

10 Aug 2010 Oshawa (Youth Court) Assault 6 days + 3 days

Threats under supervision

(54 days time served)

• 18 mths probation

concurrent

Breach of Disposition

18 mths probation

concurrent

12 May 2011 Brampton (Youth Court) Robbery time served (30 days)

Mischief Under time served (1 day)

26 May 2015 Peterborough Armed Robbery Using Firearm in

In Connection with Criminal

Organization

807 days (time served

288 days) + s. 109

weapons prohibition

Use of Imitation Firearm During

Indictable Offence

365 days consecutive

Breach Recognizance

1 day concurrent

(30 days time served)

Initial Bail Hearing

20On January 2, 2020, a bail hearing was held before Justice of the Peace D. Auger. The parties agreed it was a reverse onus situation. The Crown’s concerns were the secondary and tertiary grounds.

21The proposed defence release plan was a recognizance with strict conditions and two sureties pledging a combined total of $10,000.00. No house arrest was urged. The accused would not live with his sureties, his mother and girlfriend, because of their concern with the Children’s Aid Society with children in their houses given the record of Mr. T.S. Instead, the accused would live with his grandmother, who was not proposed as a surety.

22Four witnesses were called: his mother, Ms. A.T.; his girlfriend, Ms. M.I.; his grandmother, Ms. B. T; and the accused. Ten exhibits were entered that are now Exhibits 7 through 17 in this hearing.

23Mother, Ms. A.T. testified that she lived at ______________, Ajax, with her four children, one 16 and triplets, aged 13. She is a stay-at-home mother. Ms. A.T. said her son, the accused, was living with her before this 2019 arrest. Earlier, when he got out of the penitentiary, he returned to live with her. She testified she has lived at ____________, Ajax for approximately 11 years.

24His mother testified she assisted her son in his construction business. Her job was to do the advertisements. According to her, Mr. T.S. did not actually do the work, he would get contracts for work and get other people to do it.

25Mr. T.S. gave sworn evidence at his bail hearing. He received his Grade 12 diploma while incarcerated. He has an 8-year-old daughter who lives with her mother. He maintains contact with his daughter, who is important to him. He has a bad back which limits his ability to do physical work.

26When he was released on parole from prison in 2017, he started a subcontracting business. He would get the job and have others do the physical work. Since 2019, Mr. T.S. estimated he secured three contracts generating less than five thousand dollars. Once he secured the work, he gave the actual physical work to an uncle (no name was given). After the job was done and paid for, his uncle would give Mr. T.S. a percentage.

27According to Mr. T.S., before his arrest he lived in the Toronto house of his girlfriend, M.I., for about 4 days a week and at his grandmother’s for about 2 days a week. He would go to his mother’s to sleep there “a little bit.” The longest he stayed at his mother’s, in any week in 2019, was about 2 nights.

Reasons for Detention

28Justice of the Peace Auger ordered Mr. T.S. detained on both the secondary and tertiary grounds finding the defence had not met its onus. The Justice of the Peace described the Crown’s case as “reasonably strong” noting a number of triable issues raised by the defence. In addition to convictions for breaching court orders, the criminal record of Mr. T.S. was described as follows:

The accused criminal record demonstrates a pattern of violence that is unremitting and habitually unconcerned with the safety of the public in general, and victims in particular, and is an aggravating factor.

29With regard to the secondary ground, the Justice of the Peace reasoned:

The nexus of the accused criminal record and current charges creates a substantial likelihood that if released the accused will commit further criminal charges, and the demonstrated penchant for violence creates a substantial likelihood that he will endanger the protection or safety of the public. The first four rounds of ammunition in the handgun designed specifically to pierce body armor worn primarily by law enforcement and others who daily face threats requiring it elevate these allegations to an alarming level.

30With regard to the tertiary ground, the Justice of the Peace found all four statutory factors to be “engaged.”

31The Justice of the Peace then addressed the proposed sureties and bail plan. He was quite critical of both proposed sureties. With regard to the mother, he noted that she conceded “that despite her best efforts she has little to no influence on her son in trying to prevent his criminal behaviour.” With regard to Ms. M.I., Mr. T.S.’s girlfriend, he found that she was not suitable believing her emotional involvement would hinder her ability to discharge her duties and noting that Mr. T.S. appears to have insufficient respect for her. The Justice of the Peace rejected the proposed plan finding:

It provides little to no direct supervision of the accused which is required in light of the current allegations [, the c]riminal record with extreme violence and failing to comply with court orders, both in his criminal record and current allegations. The plan is inadequate to monitor compliance with any court-ordered conditions.

32The Justice of the Peace found that Mr. T.S. would not comply with any court-ordered conditions stating:

The accused has demonstrated with his deception when needed, criminal record with extreme violence and convictions combined with current allegations for breaching court orders to suggest that he will not comply with any court-ordered conditions.

33Before me, defence counsel did not suggest any errors in law.

Section 525 Hearing

34On April 16 and 20, 2020, a s. 525 detention review hearing was held before me. The parties agreed it continued to be a reverse onus situation. The Crown’s concerns were the same: the secondary and tertiary grounds. The predominant theme of the defence was the enhanced and serious health risk to Mr. T.S. as a pre-trial detainee caused by the recent COVID-19 pandemic.

35The defence also presented a new release plan: a recognizance with strict conditions and three sureties⁷ pledging a combined total range of $20,000.00. The three proposed sureties are Mr. J.W. of Ajax, Ms. N. M. of Toronto and Dr. R.S.M. of Toronto. It is proposed that Mr. T.S. will be under the close supervision of all three sureties and living with either Mr. J.W. in Ajax or with Ms. N.M. in Toronto. All three proposed sureties gave sworn evidence before me and two (Mr. J.W. and Ms. N.M.) provided sworn affidavits.

36Neither house arrest nor electronic monitoring were part of the plan but, according to defence counsel, they remain an option.

37The following exhibits⁸ were filed:

1. Transcript of bail hearing on January 2, 2020;

2. Transcript of Reasons for Judgment on January 7, 2020;

3. OCJ Information 19-1825 (Chatham);

4. OCJ Information 19-1826 (Chatham);

5. OCJ Information 20-1916 (Chatham);

6. OCJ Information 19-122 (Chatham) (Provincial Offences);

7. OCJ Information 19-A37003 (Durham Region);

8. OCJ Information 19-PO23469 (Durham Region) (Provincial Offences);

9. Promise to Appear/Officer in Charge Undertaking (Durham Region);

10. Firearm Prohibition Order for 10 Years dated May 26, 2015;

11. Criminal Record of the Accused;

12. Cst. Sean O’Rourke Will Say;

13. Cst. Brandon Joyes Will Say;

14. Police Photographs;

15. Car Rental Agreement;

16. Certificate of Incorporation;

17. Employment Sessions;

18. Sworn Affidavit of [J. W.];

19. Sworn Affidavit of [N. M.];

20. Sworn Affidavit of [P. D.];

21. Plan of Release;

22. World Health Organization Interim Guidelines entitled, “Preparedness, Prevention and Control of COVID-19 in Prison and Other Places of Detention”; and

23. GPS Monitoring documents.

38I will review the evidence of the proposed sureties first and then I will review the last two defence exhibits.

J.W.

39Mr. J.W. is an uncle of the accused and his sister, Ms. A.T., is the mother of Mr. T.S. Mr. J.W. is 32 years of age⁹ and is a Canadian citizen. He resides at ____________ in Ajax, Ontario. He has no criminal record. Mr. J.W. has his own small construction company and estimates an annual income of $70,000.00.

40The Ajax home is owned by Mr. J.W. He estimated its value at approximately $900,000.00 with his estimated equity in the house between approximately $300,000.00 and $400,000.00. Mr. J.W. described his house as having eight bedrooms, four upstairs and four in the basement. Mr. T.S. can live in his house; with eight bedrooms there is space for him.

41Mr. J.W.’s sister, the mother of Mr. T.S., lives in the house with two or three of her children. She rents from Mr. J.W. and has lived there for one or two years.

42According to Mr. J.W., Mr. T.S. lived with him for a month or two when he came out of prison, but he did not live with him at all during the year 2019. To his knowledge, Mr. T.S. was living in Vaughn with his child’s mother.

43On examination in-chief, Mr. J.W. testified, “I’ve never been charged or have any trouble with the law.” On cross-examination, Mr. J.W. again asserted that he had never been charged with anything. When pressed, Mr. J.W. admitted he had been charged once, but it was dropped.

44Mr. J.W. accurately described the obligations of a surety and said he once was a surety for his brother. He said he is prepared to do the same for Mr. T.S. He said Mr. T.S. listened to him when he came out of the half-way house; he was a “good boy.”

45Mr. J.W. agreed that the current charges are serious. He was largely unaware of Mr. T.S.’s record. He testified that he knew his nephew had a little “juvey” record but he did not know its nature because he does not ask questions. When advised of the nature of the record on cross-examination, Mr. J.W. expressed surprise and shock.

46Mr. J.W. denied knowing the friends of his nephew. He did not know the co-accused. He did not know the last name of the mother of the child of Mr. T.S. According to Mr. J.W. the family of Mr. T.S. is huge.

47With regard to supervision, in his affidavit, Exhibit 18 at paragraph 16, Mr. J.W. said:

I am prepared to supervise Mr. [T.S.] with respect to any conditions of release the court may impose. I always have a cellular phone with me which I can use to check on his whereabouts on demand.

48During his evidence, Mr. J.W. said he would keep Mr. T.S. in the house and only his daughter and his daughter’s mother could visit. He would have no phone contact. Mr. J.W. would keep him busy by working with him or by doing volunteer work at the church. Mr. J.W. testified Mr. T.S. had never worked with him before. When asked who could assist with the supervision, Mr. J.W. identified his sister/the mother of Mr. T.S., N.M., and the mother of the accused’s child. He said he was prepared to pledge $15,000.00 and would go higher if necessary.

N.M.

49Ms. N.M. is an extended family member of Mr. T.S. She is the mother of his brother’s sister. She describes her relationship as like a mother or step-mother to the accused. She testified, he is “like my son.” She has known him since he was about seven years old. Ms. N.M. describes Mr. T.S. as “very caring.” According to her, he listens to her.

50Ms. N.M. is 39 years old and a Canadian citizen. She has no criminal record. Ms. N.M. is a Child and Youth Worker for the Toronto District School Board and has been so employed for over 15 years. Before the COVID-19 shutdown, she worked Monday through Friday from 8:00 a.m. to 4:00 p.m. She earns about $51,000.00 annually and also receives child support for her children.

51Ms. N.M. rents a three-bedroom townhouse in Toronto where she lives with her three children: a son aged 13, a daughter aged 15 and another daughter aged 21. She is the primary caregiver for her three children. Her daughters share a bedroom; both she and her son have their own bedroom. Mr. T.S. can live in the basement. Ms. N.M. will get a bed and a dresser for him.

52Ms. N.M. testified her children come first. Her oldest daughter works. Her teenaged daughter has tutoring and the 13-year-old son participates in swimming and basketball.

53Ms. N.M. accurately described the obligations of a surety and said she once was a surety for her cousin successfully. She said she is prepared to do the same for Mr. T.S.

54Ms. N.M. recognized the seriousness of the pending charges. She testified that she is somewhat aware of his record.

55Ms. N.M. does not know the friends of Mr. T.S. nor does she know the co-accused. In 2019 she believed Mr. T.S. was living with his girlfriend, his daughter’s mother, although she did not remember her name.

56With regard to supervision, in her affidavit, Exhibit 19 at paragraph 9, Ms. N.M. said:

I am prepared to assist with Mr. [T.S.’s] supervision with respect to any curfew or house arrest the court will impose. I can be reached by cellular phone and can check on his whereabouts on demand.

57Ms. N.M. testified that Mr. T.S. can stay at her home and she can keep in touch with him by cellular telephone if the accused is allowed to have a phone. Ms. N.M. testified Mr. T.S. had never lived with her before but he routinely stayed overnight. When asked who could assist with the supervision, Ms. N.M. identified his uncle, Patricia, and Mr. T.S.’s parents. She admitted not having a lot of prior interaction with J.W. She is willing to post a cash deposit of $1,500.00 and to pledge an equal amount or perhaps higher.

Dr. R.S.M.

58Dr. R.S.M. is an extended family member of Mr. T.S. – a second cousin. He is 55 years old and a Canadian citizen. He has no criminal record. He is an ordained pastor, a licensed chaplain, a psychopathologist and a community worker. He is self-employed with an independent ministry and a counselling services practice. He has a flexible schedule and is available 24 hours a day, seven days a week.

59Dr. R.S.M. currently discloses only a P.O. Box address because his brother was murdered in 2018 and he has been threatened. As a result, he does not disclose where he lives in the greater Toronto area and is unable to have Mr. T.S. live with him. As Dr. R.S.M. put it, “I made myself anonymous.” He can give the accused his cell phone number and does attend at the ____________ [Ajax] address about four times a week to visit Mr. T.S.’s mother.

60Dr. R.S.M. has known Mr. T.S. since he was an infant. For the past 10 years Dr. R.S.M. has counselled Mr. T.S. to better his life. Dr. R.S.M. believes that Mr. T.S. has responded to his support but Dr. R.S.M. thought his “tainted history” was behind him. Dr. R.S.M. thought his cousin was making a crime-free life. In 2019, before his arrest, he saw Mr. T.S. three or four times per month at his mother’s. In 2018, he saw Mr. T.S. one time. Before that he did not see the accused much at all. He was not sure where Mr. T.S. was living in 2019; he thought it was in Durham. Before the bail hearing, Dr. R.S.M. did not know the criminal record of the accused.

61Dr. R.S.M. proposes to set up a “relapse plan” for Mr. T.S. after his release. He knows Mr. J. W. who is a cousin. He used to see Mr. J.W. frequently as “Pastor Steve” when Mr. J.W. had a bar. He does not know Ms. N.M. He has not talked to Mr. J.W. and only has “sketchy” details on a release plan.

62Dr. R.S.M. does not know the friends of the accused nor does he know the co-accused. He knows the girlfriend of Mr. T.S., Ms. M.I.

63Dr. R.S.M. understands the obligations of a surety and has been a surety four times before. Before COVID-19, he was supervising two persons on community release. He is prepared to be a surety for his cousin, Mr. T.S. He is willing to pledge $1,500.00.

Electronic Monitoring

64Although not proposing electronic monitoring as a condition, the defence says that this type of monitoring is an option for the court. The defence did not call any witness on electronic monitoring nor did the defence question any of the proposed sureties or Mr. T.S. regarding electronic monitoring. The defence did submit two GPS documents. One is eight pages in length and is entitled, “Recovery Science Corporation (RSC) Radio Frequency (RF) & GPS Monitoring for Criminal Cases – Program Summary” (“Program Summary”). The other is a one-page document entitled, “Judicial Findings of Fact about GPS Monitoring in Bail Cases” (“Judicial Findings”).

65The Program Summary is what its title describes, a summary of the monitoring systems offered by Recovery Science Corporation. Its first paragraph indicates the limitations of this document by stating, it “is intended to be read in conjunction with other materials which provide additional information about RSC and its programs.” Under the section, “zones and schedules”, the document advises that the GPS system can establish zones, geographic areas, within which the accused is required to remain, and time schedules during which times the accused is required to be in a certain zone. After describing its alert capabilities – identifying when an accused is not in an established zone at a required time as well as its response time for violations, the document “encourage[s] decision-makers to view the monitoring not as a preventive tool but as a risk management tool that, in some cases, can have a significant impact on a plan’s ability to meet the applicable legal requirements.” In the “communication with police” section, the document notes that if the release conditions permit the accused to be out of the house, with or without a surety, “ordinarily” such a move would require advance notice to the company. In the section how such monitoring can strengthen a release plan, the document provides two ways that monitoring can “help strengthen” a release plan: by a “disincentive effect” on the accused knowing that he/she is being monitored, and by removing the possibility that a house arrest breach will go undetected.

66The Judicial Findings document is a brief review of six decisions of the Ontario Superior Court of Justice concerning the “limitations and utility” of monitoring. The author and date of this review is unstated although the inclusion of 2020 cases indicates it is recent or at least updated. Essentially, this document is a legal factum.

COVID-19

WHO Guidelines

67The defence submitted the World Health Organization (“WHO”) (Regional Office for Europe) Interim Guidelines dated March 15, 2020 entitled, “Preparedness, Prevention and Control of COVID-19 in Prison and Other Places of Detention” (“WHO Guidelines”): Exhibit 22. The stated aim of the WHO Guidelines is found at p. 6, section 4.1:

The document aims to assist countries in developing specific plans and/or considering further action for prisons and other places of detention in response to the international COVID-19 outbreak, with consideration of preparedness plans, prevention and control strategies, and contingency plans to interface with the wider health and emergency planning system.

68The WHO Guidelines, at p. 2, s. 2, identified the health situation:

The COVID-19 outbreak, which was first detected in Wuhan, China in December 2019, has been evolving rapidly. On 30 January 2020, the WHO Director-General declared that the current outbreak constituted a public health emergency of international concern, and on 12 March 2020 the COVID-19 outbreak was declared a pandemic.

69COVID-19 is a new strain of coronavirus, a large family of viruses found in both animals and humans: WHO Guidelines, at p. 10, s. 7.1. With regard to its characteristics and its impact on persons infected, the WHO Guidelines at p. 10, ss. 7.1 and 7.2, provide, in pertinent part, as follows:

Although the current outbreak of COVID-19 is still evolving, infection may present with mild, moderate or severe illness and can be passed from human to human, primarily (as in other respiratory viruses) by droplet spread. While about 80% of cases manifest as mild illness (i.e. non-pneumonia or mild pneumonia), approximately 20% progress to a more severe illness, with 6% requiring specialist medical care, including mechanical ventilation. …

Most estimates of the incubation period of COVID-19 range from 1 to 14 days, with a median of 5-6 days. This means that if a person remains well 14 days after exposure (i.e. contact with an infected person), they may not have been infected. …

The most common symptoms of COVID-19 are fever, tiredness and dry cough. Some patients may have aches and pains, nasal congestion, runny nose, sore throat or diarrhoea. These symptoms are usually mild and begin gradually. Some people become infected but do not develop any symptoms and do not feel unwell. Most people (about 80%) recover from the disease without needing special treatment. About one out of every five people who are infected with COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems such as high blood pressure, heart problems or diabetes, are more likely to develop serious illness. Based on the latest data, about 3-4% of the cases globally have died, but mortality varies according to location, age and existence of underlying conditions. …

70Transmission of COVID-19 from person to person is by respiratory secretions or droplets commonly by coughing or sneezing, or by touching a contaminated surface then touching one’s face. Transmission may occur from a person who shows no symptoms of the disease: WHO Guidelines, at pp. 10-11, s. 7.3.

71Persons in prisons, jails or other detention facilities, including inmates and staff, are at a heightened risk for person-to-person transmission of various diseases, now including COVID-19, because of the compulsory enclosed environment: WHO Guidelines, at p. 2, s. 2. Acknowledging this heightened risk, such facilities must develop and implement plans to prevent the introduction of COVID-19 into the facility, limit its spread if it is found in the facility, and reduce the possibility of spread to the outside community: WHO Guidelines, at p. 2, s. 2.

72With regard to introduction prevention and spread limitation, the WHO Guidelines, at p. 4, s. 3, suggests “enhanced consideration” be given to “non-custodial measures” for offenders with “low-risk profiles”. In addition, the facility should place all detainees in a 14-day quarantine when a detainee has had contact with a known case of COVID-19: WHO Guidelines, at p. 21, s. 12.4.

73With regard to reduction of community spread, when a detainee leaves the facility and has COVID-19 or has been in contact with a known case of COVID-19 and the 14-day quarantine period has not lapsed, the WHO Guidelines, at p. 28, s. 14.4, suggests that:

The prison health authorities should ensure that the person discharged has a place to go where they can maintain quarantine, that the local authority is notified that the person has been discharged, and thus that follow-up is transferred from the prison authorities to the local authorities.

74I find that the WHO Guidelines are the understandings and beliefs of the WHO and, as such, I consider them to be credible and trustworthy in the circumstances. They shall be considered.

Other Information

75Quite understandably, given the very recent, ongoing and universal nature of the COVID-19 crisis that directly impacts virtually everyone, both counsel argued the COVID-19 crisis before me with no record evidence except the WHO Guidelines reviewed above.¹⁰ I say understandably, because this is an extraordinary, historical event that has dominated everyone’s life from mid-March through and including today. It appears that there are no definite, precise facts to most aspects of this crisis. We proceed on government proclamations and directives premised, we are told, on that day’s best medical advice and even that, at times, has changed (e.g. no masks needed to wear masks). In other words, this crisis clearly is evolving quite rapidly as more facts become accepted as known.

76We could proceed by expert evidence but that can be problematic. First, this concerns a bail matter, a liberty issue, which, under the circumstances, is time sensitive. Often, the acquisition of expert evidence takes time, at times considerable time. Second, such informed opinion evidence presumably would come from the health care profession who are urgently needed elsewhere; this crisis is continuing.

77Crown counsel asked the court to take judicial notice of a judicial recitation of “Briefing Note – Institutional Services Responses to COVID-19” in R. v. Jeyakanthan, 2020 ONSC 1984, at para. 31. That “Briefing Note” was filed in that case. It was not filed before me. Another case, R. v. Baidwan, 2020 ONSC 2349, at paras. 41-44, cautions against the use of judicial notice in the COVID-19 context given the doctrine’s strict threshold and the general lack of accepted facts in this new and very fluid crisis.

78There are at least 15 reported trial decisions in Ontario concerning COVID-19 and bail. There are at least 5 Ontario Court of Appeal decisions on the same issue. The number of decisions on this issue grows weekly. These decisions have mentioned, to a greater or lesser degree, the COVID-19 situation, not always with a clear attribution to record evidence.

79Pursuant to s. 17 of the Canada Evidence Act, I take judicial notice of the following acts of the Province of Ontario:

Declaration of Emergency: Ontario Order in Council 518/20 dated March 17, 2020 including the following: “Whereas the outbreak of a communicable disease namely COVID-19 coronavirus disease constitutes a danger of major proportions that could result in serious harm to persons”;

Prohibition of Organized Public Events and Social Gatherings of More than Five Persons: Ontario Regulation 52/20 from March 28, 2020;

Closure of Outdoor Recreational Amenities (including playgrounds, sports facilities, dog parks, and picnic sites): Ontario Regulation 104/20 from March 30, 2020;

Closure of Places of Non-Essential Businesses (effective midnight on April 4, 2020): Ontario Regulation 82/20; and

Closure of Establishments (including public libraries, private schools, child care centres, bars and restaurants, and theatres): Ontario Regulation 51/20 effective April 16, 2020.

80I also take judicial notice of the following extraordinary order of the Chief Justice of the Superior Court of Ontario:

Suspension of Superior Court of Justice Regular Operations dated March 15, 2020 which begins: “To protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice (SCJ) is suspending all regular operations, effective Tuesday, March 17, 2020, and until further notice.

Recent “Lockdown”¹¹

81Before the commencement of evidence on the second day of the hearing, Monday, April 20, 2020, I was advised by defence counsel that his client had been in “lockdown” since the preceding Friday, April 17, 2020. I asked the officer, who accompanied Mr. T.S. (identified as Officer Stokes), to confirm this information and he did so adding that the accused’s range, B-2, was in “lockdown” for safety reasons because two other inmates from the same range were being tested for COVID-19. These two inmates also were being separately housed. Mr. T.S. said the “lockdown” meant he is being kept in his cell for all but a short period of time each day. He said his temperature is being taken multiple times each day and so far, he is fine. The accused added that another inmate in his range attempted suicide since the “lockdown.”

82At the end of the morning, I asked the officer, then in the room with the accused (identified as Officer Cummings), to find out over the lunch hour when the test results of the two inmates were anticipated.

83After lunch, Officer Cummings advised that the two inmates were still in quarantine and the accused’s range, B-2, was still in “lockdown.” The officer did not have the anticipated time of the test results, so I stood the matter down for the officer to obtain the requested information. On return, Officer Cummings advised that the test results took nine days and confirmed that the tests were administered on Friday, April 17, 2020. Thus, the earliest time for disclosure to us would be Monday, April 27, 2019, although Mr. T.S. suggested that the institution would never release the results.

84Upon receipt of this information, I asked counsel for their positions on adjourning the hearing to obtain more information from the institution both generally, and particularly about the tested inmates on the accused’s range. Both counsel did not want any adjournment. Mr. Singh, for the accused, advised that the court has enough information; that the jail is taking precautions; and that the testing/“lockdown” itself increases the stress level on all the inmates, including his client. Crown counsel said the court already had the best information.

85Additionally, upon receipt of the information regarding the “lockdown”, I asked defence counsel whether his client would pose a safety risk to the public on release, given his contact with possibly-infected persons. Counsel advised that the sureties would keep his client in a 14-day quarantine. I asked whether we should hear evidence of such a plan. Counsel did not believe that was necessary.

86I accept as credible and trustworthy that two inmates in the same range as Mr. T.S. were removed from the range on Friday, April 17, 2020, and are being tested for the COVID-19 virus. Those two inmates were segregated from the range and are now in quarantine. The range was put on “lockdown” meaning that the inmates are confined to their cells for all but a short period of time each day. Mr. T.S.’s temperature is being taken multiple times each day and, as of Monday, April 20, 2020, he was fine. The results of the COVID-19 tests of the two inmates would be available on Monday, April 27, 2020. Mr. T.S. heard that another inmate attempted suicide after the “lockdown.” All inmates, including Mr. T.S., are experiencing increased stress as a result of this testing/“lockdown” incident.

Positions of the Parties

Defence

87The defence argues that there are significant changes in circumstances since the bail hearing detention rendering continued detention no longer justified under either the secondary or the primary ground. Defence counsel stresses the ongoing COVID-19 pandemic asserting that Mr. T.S., who is presumed to be innocent of all the current charges, should not be held in a detention facility that heightens his risk of contracting the virus and negatively impacts his mental health. Moreover, the new release plan is comprehensive and not only mitigates any risk of reoffending, but also materially changes the tertiary ground calculus so that now it is detention that would undermine a reasonable person’s confidence in the administration of justice.

Crown

88Crown counsel argues that the same factors that led to his bail hearing detention continue to dominate the s. 525 assessment: a horrendous criminal record for violence and breaches of court orders coupled with the new toxic charges of drugs and a loaded and ready prohibited handgun. The new plan is no more effective than the rejected plan. Although the proposed sureties are well-meaning people, they know little about Mr. T.S., the plan is not coordinated, and the three people proposed are not within easy distance of one another to permit the necessary supervision. Moreover, the evidence of perhaps the key proposed surety, Mr. J.W., is inconsistent with the prior evidence of both the mother of the accused and of the accused himself. Finally, the COVID-19 situation does not alter the serious concerns in a case like this one. Continued detention is justified under both the primary and the secondary grounds.

Legal Principles

Right to Reasonable Bail

89All persons charged with an offence have the constitutional right “not to be denied reasonable bail without just cause:” Section 11(e) of the Charter of Rights and Freedoms. This right “entrenches the effect of the presumption of innocence at the pre-trial stage … and safeguards the liberty of accused persons:”: R. v. Antic, 2017 SCC 27, at para. 1. Pursuant to this Charter right, bail only can be denied in a narrow set of circumstances which are necessary to promote the proper functioning of the bail system: R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665 at para 60; R. v. Morales, [1992] 3 S.C.R. 771, at para. 38.

90Parliament enacted The Bail Reform Act¸ now ss. 515 through 526 of the Criminal Code of Canada, that established a general entitlement to bail: Pearson at para 52. Indeed, it is now abundantly clear that release is the rule and detention the exception: R. v. Myers, 2019 SCC 18, at para. 1; R. v. Antic, at para. 29; R. v. St. Cloud, 2015 SCC 27, at para. 70. “[W]e must not lose sight of the fact that pre-trial detention is a measure of last resort:”: Myers, at para. 67.

Section 525

91One of the statutory safeguards ensuring the justification of continued detention is s. 525. This section imposes an independent responsibility on the reviewing judge to consider whether continued detention is justified: Myers, at para. 4. The purpose of this section is to “prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial:” Myers, at para. 24.

92The recent Supreme Court of Canada decision in R. v. Myers established the correct approach to a detention review pursuant to s. 525: Myers, at para. 4. It begins with the overarching question which must be answered by the reviewing judge: “Is the continued detention of the accused in custody justified within the meaning of s. 515(10)?”: Myers, at para. 46. The Court at paras. 62 and 63, summarized the correct approach:

First, the jailer has an obligation to apply for the hearing immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s. 503. .… Upon receiving the application from the jailer, the judge must fix a date and give notice for the hearing. The hearing must be held at the earliest opportunity. In his or her analysis, the judge may refer to the transcript, exhibits and reasons from any initial judicial interim release hearing …. Both parties are also entitled to make submissions on the basis of any additional “credible or trustworthy” information which is relevant or material to the judge’s analysis ….

... The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of s. 515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order …. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is – or is not – justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre-trial detention.

Grounds for Detention

93The statutory grounds justifying detention are found in s. 515(10). There are three, commonly called the primary, secondary and tertiary grounds. As formulated today, they have withstood constitutional challenge. See Pearson; Morales; and R. v. Hall, 2002 SCC 64. The statutory grounds are as follows:

(10) For purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(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.

Secondary Ground – s. 515(10)(b)

94Section 515(10)(b), the secondary ground, justifies detention when it is necessary for the protection or safety of the public.

95The public safety ground for detention is narrow and is necessary to promote the proper functioning of the bail system: Morales, at para. 46. The bail system does not function properly if accused persons commit crimes while on bail: Morales, at para. 41. The Supreme Court, in Morales, para. 39, summarized the secondary grounds as follows:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.

Tertiary Ground – s. 515(10)(c)

96Section 515(10)(c), the tertiary ground, justifies detention when it is necessary to maintain confidence in the administration of justice.

97The proper functioning of this pre-trial release system, and indeed the criminal justice system as a whole, requires public confidence: Hall, at para 27. Thus, this statutory scheme championing the entitlement to bail, also includes specific grounds for pre-trial detention to maintain public confidence: s. 515(10)(c).

98The Supreme Court in St. Cloud, at para. 87, summarized the “essential principles that must guide justices in applying s. 515(10)(c)” as follows:

• Section 515(10)(c) … does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pretrial detention of an accused.

• Section 515(10)(c) … must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

• The four circumstances listed in s. 515(10)(c) … are not exhaustive.

• A court must not order detention automatically even where the four listed circumstances support such a result.

• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

• The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.

• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

• To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

• The reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

Principles Applied

99Before addressing the ultimate question in this s. 525 hearing – Is the continued detention of the Mr. T.S. justified within the meaning of s. 515(10)? – I address two issues raised by the defence in submissions: 1) entitlement to enhanced credit due to COVID-19; and 2) the impact of African Canadian status on the assessment.

COVID-19 Enhanced Credit

100The defence argues, citing R. v. Duncan, 2016 ONCA 754, that if the accused is sentenced in this case, he will be entitled to enhanced credit for his pre-sentence time served because of the harsh circumstances in the institution caused by COVID-19. This enhancement should be considered in the tertiary ground assessment as well as in the s. 525 “proportionality” assessment.

101In Duncan, at para. 6, the Court of Appeal held: “[I]n the appropriate circumstances particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1).”¹² In considering whether to give enhanced credit, the sentencing court “will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.” Duncan, at para. 6. In Duncan, the sentencing court declined to give enhanced credit even though there was evidence that the accused spent a considerable part of his pre-sentence custody in “lockdown” due to staffing issues. The Court of Appeal declined to reduce the sentence because there was no evidence of the affect of those conditions on the accused: Duncan, at para. 7. In two subsequent cases, R. v. Ledinek, 2018 ONCA 1017, at paras. 10-13; and R. v. Deiaco, 2019 ONCA 12, at para. 4, the Court of Appeal declined to reduce sentences for the failure to give enhanced credit for harsh custodial conditions calling such a determination “discretionary” and “highly discretionary.”

102Justice Pomerance, in her very recent sentencing decision of R. v. Hearns, ONSC 2365, at paras. 15-24, did consider custodial time under COVID-19, not for purposes of enhanced credit, but as a mitigation factor in the assessment of the overall fitness of the sentence.

103Although I agree that a sentencing judge may reduce any ultimate sentence in this case, whether as enhanced credit or as part of the assessment, at this early stage I cannot give a prediction on what a sentencing judge will do and, if so, I find it impossible to quantify. Importantly, I also note that before me the accused has led no evidence on the affect of COVID-19 on him. However, I will consider the possible sentence mitigation of pre-sentence custody under COVID-19 although, for the above reasons, I has little weight now.

African Canadian Status¹³

104Defence counsel argues that my assessment of his client’s criminal record must be tempered or minimized because most of the crimes were committed while Mr. T.S. was a youth and there is a very serious prejudice problem with black youths and the justice system dating back to colonial times. Counsel argues I should not look at his record as a window to the future.

105I accept the undisputed existence, both past and present, of racial prejudice. Indeed, our Court of Appeal in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), recognized the existence of systemic racism in our society, a finding that obviates the need for specific proof in the assertion of the right to a race-based challenge for cause in a jury trial for a black accused. The defence wants me now to apply the historical existence of racial prejudice to mitigate or lessen a black male’s serious and violent criminal record in the bail context. I am unaware of any case on this point and none was provided.

106Another marginalized group in Canadian society, indigenous peoples, have been the subject of a number of judicial opinions. Subsection 718.2(e) of the Criminal Code of Canada, as interpreted by the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, requires a sentencing court to consider the unique systemic and background factors that may have played a part in bringing an indigenous offender before the court, as well as sentencing procedures and non-penal sanctions which may be appropriate in the circumstances because of the indigenous offender’s background. This is a mandated methodology designed to focus the sentencing court on the unique circumstances of an indigenous offender to determine a fit sentence. This approach does not necessarily mean a reduction in a sentence, especially when dealing with serious and violent crimes. At para. 79, the Court stated:

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same even taking into account their different concepts of sentencing.

107It is the approach that must be made to ensure that the unique indigenous circumstances and alternate sentences are fully understood and considered to fashion a fit and just sentence. Fundamentally, a just sentence must be proportionate, and the moral blameworthiness of the offender is one side of that equation. It is there – the moral blameworthiness of the offender – that the unique indigenous circumstances may impact.

108The Gladue principles for indigenous offenders have been extended to bail decisions: R. v. Robinson, 2009 ONCA 205, and R. v. Hope, 2016 ONCA 648. The Court of Appeal in Robinson, at paras. 13-15, recognized the application of Gladue principles to a bail decision but mandated evidence on the issue. As stated in para. 13:

[T]he application judge cannot apply such principles in a vacuum. Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds of release.

109Because the issue was first raised in final submissions and because there was no evidence introduced that addressed matters that would inform a Gladue analysis, the Court of Appeal declined to review the sentence: Robinson, at para. 14. Moreover, the court quoted para. 79 in Gladue and commented, “I would think that the same practical reality [regarding serious and violent offenses] would apply to applications for judicial interim release.”

110The application of Gladue-like principles to the sentencing of African Canadians has been made. Nakatsuru J. in R. v. Jackson, 2018 ONSC 2527, at para. 79, stated:

It is the remedial nature of s. 718.2(e) that provides the authority for me to address the disproportionate imprisonment of African Canadians. While Parliament did single out Indigenous persons for special attention, its enactment benefits all offenders. For African Canadians, given the evidence presented to me, disproportionate incarceration is an acute problem. Section 718.2(e) can be resorted to in order to address this particular problem. It is further meant to encourage restorative approaches in the application of the sentencing principle of restraint.

111Jackson has not been universally followed. LeMay J. in R. v. Brissett, 2018 ONSC 4957, declined to follow Jackson relying, at least in part, on the Court of Appeal decision in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1. In Hamilton, Doherty J.A. raised concerns about mitigation simply by being part of a group. At paras. 133-135, he stated:

The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality.

A sentencing judge is, however, required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender. That inquiry can encompass systemic racial and gender bias. As the court explained in R. v. Borde, (2003) 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, at para. [32]:

However, the principles that are generally applicable to all offenders, including African-Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence ….

Reference to factors that may “have played a role in the commission of the offence” encompasses a broad range of potential considerations. Those factors include any explanation for the offender’s commission of the crime. If racial and gender bias suffered by the offender helps explain why the offender committed the crime, then those factors can be said to have “played a role in the commission of the offence”.

112I reject the defence position that racism against African Canadians should temper or soften the impact of a serious and violent criminal record of an African Canadian at a bail hearing. First, statutorily an accused’s criminal record is relevant evidence that the court must consider: s. 515(3)(a). Second, sentences for serious and violent crimes are unlikely to be different between black and non-black offenders: Gladue, at para. 79. And third, the defence presented no evidence for me to evaluate the underlying proposition that young, black males, in general, and Mr. T.S. in particular, are more likely to be convicted and sentenced more harshly for serious and violent crimes than non-black males.

Assessment

113Following a bail hearing, Justice of the Peace Auger detained Mr. T.S. on both the secondary and tertiary grounds. The defence asserts that continued detention no longer is necessary citing COVID-19 and three new proposed sureties. Thus, the issue of justification of continued detention is now before me.

114All agree this is a reverse onus situation. Mr. T.S. bears the burden, on the balance of probabilities, to show that detention is not necessary under the secondary or tertiary grounds, the only grounds in issue.

115I begin with the recognition of two over-riding principles: Mr. T.S. is presumed innocent of the current charges; and Mr. T.S. is entitled to reasonable bail which right can only be denied in a narrow set of circumstances deemed necessary to promote the proper functioning of the bail system.

116I will first review both the secondary and tertiary grounds and then turn my attention to the plan of release.

Secondary Grounds

117Mr. T.S. can only be detained on the secondary grounds if, after taking into account all the circumstances, there is a substantial likelihood that if he is released from custody, he will commit a criminal offence and his detention is necessary for the protection or safety of the public.

118Justice of the Peace Auger found that detention of Mr. T.S. was necessary on the secondary grounds specifically concluding, and I repeat,

The nexus of the accused criminal record and current charges creates a substantial likelihood that if released the accused will commit further criminal charges, and the demonstrated penchant for violence creates a substantial likelihood that he will endanger the protection or safety of the public. The first four rounds of ammunition in the handgun designed specifically to pierce body armor worn primarily by law enforcement and others who daily face threats requiring it elevate these allegations to an alarming level.

119After review, I agree with Justice of the Peace Auger. Considering Mr. T.S.’s very violent, relatively long criminal history coupled with the nature of the present allegations, the accused travelling a public highway prepared to use the deadly force of a handgun in protection of illegal drugs, I reach the same conclusion. There exists obvious and very realistic concerns about public safety and the protection of the public.

120The defence argues changed circumstances alter this conclusion making continued detention unjustified. The defence raises two changed circumstances and argues COVID-19 and the new release plan mitigate the risk making detention no longer necessary. I will address the new bail plan later. I will address the relevance of COVID-19 to the secondary ground now.

121Without question, the ongoing COVID-19 pandemic is an extraordinary, frightful, and impactful event on the lives of everyone. People not only get sick from it, a small percentage die from it. There is no advanced warning of its attack on any particular person.

122Also, without question, people in closed environments – prisons, cruise ships, and nursing homes, to identify the obvious – are at an enhanced risk to contract the virus simply because of the closed environment and the nature of the human-to-human transfer of the disease. Mr. T.S. obviously is in an enclosed environment – a detention facility - making him more vulnerable to contracting the disease. Some enclosed environments are chosen and some are not. Mr. T.S. did not choose to live in the detention facility and wants out.

123But the precise issue before me now is the relevancy of COVID-19 and the secondary ground. The defence identifies COVID-19 relevance as 1) the enhanced risk of the infection of a potentially fatal disease by a presumed innocent inmate, and 2) the extended time it will take to bring this case to trial. There is very little dispute that COVID-19 is relevant on the tertiary ground: see, e.g., R. v. Cain, 2020 ONSC 2018, at paras. 8 and 25; R. v. T.K., 2020 ONSC 1935, at paras. 58-60; R. v. Rajan, 2020 ONSC 2118, at paras. 36-40 and 73; and R. v. J.S., 2020 ONSC 1710, at paras. 16-20. The recent Court of Appeal cases regarding appeal bail and COVID-19 are in accord¹⁴: R. v. Morgan, Docket: M51470 (C67536)(Trotter J.A.), at para. 11; R. v. Kazman, 2020 ONCA 251, at paras. 6-8 and 17-20 (Harvison Young J.A.); R. v. Omitiran, 2020 ONCA 261, at para. 26 (Harvison Young J.A.); R. v. Jesso, 2020 ONCA 280, at para. 36 (Brown J.A.); R. v. Stojanovski, 2020 ONCA 285, at para. 35 (Brown J.A.).

124Without providing reasons, at least two justices of the Superior Court have opined that COVID-19 is a valid factor in the secondary ground assessment: T.K., at para. 60; Cain, at para. 8; R. v. J.F., 2020 ONSC 2045.

125I am skeptical with sweeping conclusions of COVID-19 relevancy in the secondary ground assessment. The wording of the secondary ground, found in s. 510(1)(b), is quite clear. The concern and the justification for detention is public safety. The focus is on the accused and the substantial likelihood of what he will do on release. I struggle to find principled reasons for generally accepting the relevance of the conditions of the detention centre – albeit in this case with COVID-19 dramatically serious – to the public safety concerns of the secondary ground.

126The recent decision of Labrosse, J. in R. v. Cahill, 2020 ONSC 2171, at paras. 27-30, however, shows at least one area of COVID-19 relevance to the secondary ground: a reduced likelihood of to reoffend. Justice Labrosse found that the combination of the accused’s high risk of serious illness if infected by COVID-19 given her medical condition and the reduced opportunities to commit property crimes, the criminal history of the accused, given the provincial shut down, took Ms. Cahill “outside of being a substantial risk to reoffend:” Cahill, at para. 30.

127Finally, even accepting the narrow relevance of COVID-19 on the secondary ground, it simply does not apply in this case. I have nothing before me that COVID-19 will reduce the likelihood of reoffending by Mr. T.S. Mr. T.S. is not a member of the medically vulnerable group and his criminal history does not bring me comfort that he is less likely to reoffend during the pandemic.¹⁵

Tertiary Ground

128Mr. T.S. can only be detained on the tertiary ground if, after taking into account all the circumstances, including the four factors identified in the section, his detention is necessary to maintain confidence in the administration of justice.

129Justice of the Peace Auger found that detention of Mr. T.S. was necessary on the tertiary ground. In addition to raising the new circumstances of COVID-19 and the new release plan, defence counsel does contest some of the findings made by the Justice of the Peace, most notably the strength of the Crown’s case and the liability on conviction of a potentially lengthy prison term. All s. 515(10)(c) factors will be assessed anew never forgetting that the accused is still presumed innocent.

1. Apparent strength of the prosecution’s case

130The Justice of the Peace characterized the Crown’s case as “reasonably strong” given the physical evidence and acknowledging triable issues raised by the defence. Defence counsel challenges this conclusion pointing out the contraband was found hidden in a compartment between the front seats, the car had two other occupants, and the contraband was found after a traffic stop pursuant to warrantless searches.¹⁶ On the record before me, I characterize the case against Mr. T.S. as strong, I would eliminate the modifier “reasonably.” Mr. T.S. was the driver of a rental car that was not facially rented to any of the three persons found in the car. He thus had control of the car. The contraband was hidden, but in such a way that it was immediately available to the driver. The gun was loaded with one bullet in the chamber making deadly force a split second away from the driver with a hand on the shifter. A simple drop of the hand accesses the ready weapon. By reasonable inference, the gun was positioned there to protect the drugs in the same compartment. To me, this is a strong circumstantial case against the driver, Mr. T.S., on knowledge and control.

131With regard to the potential Charter issues, as warrantless searches, they certainly exist but whether there is a Charter breach and, if so, whether the evidence will be excluded, are virtually impossible to assess at this early stage.

2. Gravity of the offence

132This factor is assessed objectively on the basis of the maximum penalty. The drug offences carry a maximum penalty of life in prison. The most serious of the gun offences carry a maximum penalty of 10 years in prison. There are no minimum mandatory penalties.

3. Circumstances of the offences

133Mr. T.S., a person prohibited by a court order from possessing firearms, was driving a rental vehicle on a major highway, away from the area where he resides, with a prohibited handgun loaded with prohibited ammunition mere inches away from his hand when on the shifter. A variety of illegal drugs were located further in the same area. The area in which the handgun and drugs were found was created within the centre console area by opening the top of a side plastic molding panel on passenger side of the console, so that first drugs and then the gun could be placed in the area. The handgun was loaded with one round in the chamber and was strategically positioned to allow for very quick access to the gun ready to fire. From this evidence, it is clear that this was not a spontaneous crime; it required thought and planning.

134Also in the car were two other persons, neither of whom rented the vehicle: a female young person sat in the passenger front seat and an adult male sat in the rear seat passenger side.

135In this factor, consideration of sentencing aggravating and mitigating circumstances can be taken into account. In addition to the aggravating circumstances of the crimes themselves, noted above, Mr. T.S. has a serious, violent criminal record including, at his young age, a global four-year prison term for robbery in connection with a criminal organization.

136Mitigating circumstances include his age, he is 24, and possibly a disadvantaged background which includes the undefined impact of racial prejudice.

4. Liable for a potentially lengthy term of imprisonment

137This is a subjective assessment after consideration of the circumstances of the offence, the aggravating factors, as noted above, and the mitigating factors, as noted above. I consider here the possibility of enhanced credit for time served as reviewed. I also accept and consider Crown’s counsel concession, during submissions, that the fentanyl count would be reduced to simple possession given the small quantity of that seized drug. As well, I disregard the cocaine charge because of the absence of any positive testing four months after its seizure. Considering everything, I find that Mr. T.S. is liable, on conviction, for a potentially lengthy term of imprisonment. The Court of Appeal in R. v. Wong, 2012 ONCA 767, at para. 11, sums up the reasons for lengthy prison sentences:

The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

5. List not exhaustive

138The Supreme Court in St. Cloud, at paras. 66-71, made it clear that the statutory list is not intended to be exhaustive. There are other factors that may justify a release order. The COVID-19 pandemic is an obvious factor which must be considered in the assessment of the tertiary ground. Its relevance on this issue is twofold: a) a presumptively innocent person is subject to an enhanced risk of contracting a potentially fatal disease; and b) the pandemic halted the normal operations of the court thereby extending the time to trial. I will discuss each.

a) Enhanced risk

139Although I do not question that any enclosed environment, including a detention facility, will enhance a person’s risk of being infected, to better understand the impact on a particular accused, at least some of the person’s medical situation needs to be disclosed. As contained in the WHO Guidelines reviewed above, the impact of the virus on any particular infected person can range from no symptoms to severe illness including, in a small percentage of cases, death. Certain persons are more likely to develop serious illness: the elderly and those with underlying health problems such as diabetes, high blood pressure and other heart ailments. It is a respiratory illness so, inferentially, respiratory problems should be included in this list.

140Many courts considering this issue have insisted on medical evidence of any compromising medical conditions that puts that particular accused at a high risk: R. v. Nelson, 2020 ONSC 1728, at 9; Jeyakanthan, at paras. 33 and 34; Budlakoti, at paras. 13 and 14; and R. v. Baidwan, 2020 ONSC 2349, at para. 75. At least one court has been satisfied by the evidence of the accused: Cain, at paras. 7 and 8. Another court has been satisfied with the evidence of the accused and a doctor’s note: R. v. Phuntsok, 2020 ONSC 2158, at paras. 41-43.

141I have no evidence of any existing medical condition that makes Mr. T.S. more vulnerable. Indeed, toward the end of the first day of the hearing, Thursday, April 16, 2020, defence counsel raised the concern that the accused may have breathing issues or asthma. The hearing was adjourned for a second day, to Monday, April 20, 2020, for the prosecutor’s submissions and to allow the defence to call a third proposed surety and possibly evidence of the health status of Mr. T.S. At the beginning of the second day of the hearing, I was advised that the defence would not be calling any evidence on any health condition of Mr. T.S.

142As a consequence, I have a 24-year-old man before me with no evidence of any health conditions that would make him more vulnerable to serious consequences from a COVID-19 infection.

143In addition, on the second day of the hearing it came to my attention that two inmates in the same range as the accused had been removed, tested for COVID-19, and quarantined, all on Friday, April 17, 2020. We learned that, as a result, the range of the accused was locked down and Mr. T.S.’s temperature was being taken multiple times a day, but he was fine. We also learned that the test results would not be ready until the following week, Monday, April 27, 2020. But at my inquiry to adjourn the hearing for more information, both counsel did not want an adjournment. According to defence counsel, the jail was taking precautions which, by themselves, created continuing stress.

144What I can conclude from this information, is that the detention centre is vigilant. When they suspect an infection, the person is removed, put in quarantine, and the rest of the range is put on lockdown to their personal cells. I accept that this is stressful for all inmates, including Mr. T.S. I accept that being in lockdown generally is not healthy for a person’s mental state. Beyond that, I have no evidence.

b) Extended time to trial

145Normal court operations of the Superior Court of Justice have been suspended since March 17, 2020. Although generally everyone wants to end the cessation of businesses, schools, government operations, and the courts, it is unknown when normal operations will recommence. It is reasonable to infer that time to trial will be extended but the length is very speculative at this stage. Crown counsel assured all that the two cases would be joined for purposes of the preliminary hearing and trial; there will be no multiple preliminary hearings, motions and trials which would necessarily elongate the time to conclude the case. Crown counsel also assured all that Chatham is a small centre and the matter would be brought to trial in a timely fashion.

146The delay caused by COVID-19 is a relevant consideration that will be considered in my overall assessment.

6. Balancing exercise

147I now must consider all the circumstances of this case, paying particular attention to the four statutory factors. No single circumstance is determinative. I must consider their combined effect. The ultimate question is whether detention is necessary to maintain confidence in the administration of justice. To answer this question, I must adopt the perspective of the “public” – “a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case” but not a legal expert able to appreciate the subtleties of the various defences available to the accused. A reasonable person’s confidence in the administration of justice may be undermined either when a court fails to order a detention where justified, and when a court orders a detention where not justified.

148In consideration of the above principles, I find that all four statutory factors favour detention. That conclusion, however, does not automatically lead to detention. I look at those factors in conjunction with all the circumstances including the COVID-19 factors. I find that detention is necessary to maintain confidence in the administration of justice in this case.

Release Plan

149A release plan may change the above conclusions with regard to both the secondary and the tertiary grounds. A strong release plan may reverse the finding that detention is necessary for the protection or safety of the public in s. 515(10)(b). Equally, a strong release plan may also change the calculus on the tertiary ground leading to the conclusion that detention no longer is necessary to maintain confidence in the administration of justice.

150I start first with the release plan which defence counsel describes as strong and comprehensive. The proposed plan is a recognizance with strict conditions and three sureties pledging a combined total of about $20,000.00. The three proposed sureties are Mr. J.W. of Ajax, Ms. N.M. of Toronto and Dr. R.S.M. of Toronto. It is proposed that Mr. T.S. will be under the close supervision of all three sureties and living with either Mr. J.W. in Ajax or with Ms. N.M. in Toronto.

J.W.

151Mr. J.W. is the uncle of the accused. He is 32 years of age, resides at __________ in Ajax, Ontario, and has his own small construction company.

152I have concerns with the evidence of Mr. J.W. He testified that he has owned the Ajax house for about four years, that the accused’s mother, his sister, Ms. A.T., lives in the house with her two or three children, and that she has lived there for one or two years. Ms. A.T. testified at the initial bail hearing. She testified that she lives in the Ajax house with her four children, one aged 16 and triplets aged 13. She testified that she has lived at the Ajax house for approximately 11 years. Ms. A.T. gave the following evidence:

Q. All right Mrs. [T.], you live at [______________] in Ajax, Ontario?

A. Correct.

Q. Is that a house or an apartment?

A. A house.

Q. Do you own that house?

A. No, rent.

Q. You rent the house, okay. Who else lives there with you?

A. Me and my four children.

Q. All right. And those are the only, no adults living in your home?

A. No.

153Defence counsel submitted the bail hearing transcript as part of the application record. There was no attempt to reconcile the differences in the evidence.

154Mr. J.W. testified that his nephew, the accused, did not live at all with him during the year of 2019. To his knowledge, Mr. T.S. lived in Vaughn with his child’s mother. The accused’s mother, Ms. A.T. testified that her son, the accused, was living with her at the time of his arrest. The accused gave evidence at the initial bail hearing. He testified that he lived with his girlfriend, M.I. (not the mother of his daughter), about four days a week. He stayed with his grandmother in Toronto about two days a week. The longest he stayed with his mother in 2019, at any one time, was about two nights.

155On direct examination, Mr. J.W. testified, “I’ve never been charged or have any trouble with the law.” On cross-examination, he again denied he was ever charged with a crime only to change and admit he had been charged, but it was dropped.

156Mr. J.W. testified he would keep Mr. T.S. busy, including by working with him in his small construction business or by doing volunteer work at the church. The accused testified at the initial bail hearing that he could not do much physical work because he had a bad back.

157I am not satisfied with Mr. J.W. as a surety. In addition to serious questions regarding his forthrightness to me, he is young, almost a contemporary of Mr. T.S., he demonstrated no real plan of supervision, and he knows very little about his nephew. For all these reasons, I am not satisfied that Mr. J.W. can properly discharge his obligations as a surety. In my view, he cannot effectively supervise Mr. T.S. I find that Mr. J.W. is not suitable as a surety in this case.

N.M.

158Ms. N.M., age 39, describes her relationship with Mr. T.S. as mother-son. She has a very responsible job. She is the primary caregiver for her three children. She and her children live in a three-bedroom townhouse. She never has been deeply involved in the life of Mr. T.S.

Although I believe Ms. N.M. is a very good person and well-meaning, I do not find her suitable to supervise Mr. T.S. First, she does not have the time. Ms. N.M. is a single mother responsible for three children. She works full-time which means, when she goes back to work, there is no one to personally supervise Mr. T.S. The supervision of the accused required in this case is far beyond periodic telephone checks. Second, she does not know Mr. T.S. well. I have no confidence that her relationship can change to one of enforcement of release conditions. It is my belief she has little, if any, control over Mr. T.S. Third, there is no plan to coordinate the supervision of the accused. She does not interact with J.W. much and, it appears, does not know Dr. R.S.M.

Dr. R.S.M.

159Dr. R.S.M., age 55, is a cousin of the accused. He is an ordained pastor with an independent ministry and a counselling practice.

160Dr. R.S.M. is unable to house Mr. T.S. and, quite understandably, declines to disclose his address.

161Dr. R.S.M. proposes to set up a “relapse plan” for Mr. T.S. after his release. He knows J.W. who is a cousin. He does not know N.M. He has not talked to J.W. and only has “sketchy” details on a release plan.

162Dr. R.S.M. does not know the friends of the accused nor does he know the co-accused. He knows the girlfriend of Mr. T.S.

163Dr. R.S.M. is a very decent person and means well. He admittedly has had marginal influence over Mr. T.S. and does not know him well. As a secondary or back-up surety in a well-organized plan of supervision, Dr. R.S.M. may be acceptable. In this plan, he is not. There is no comprehensive plan of supervision and the two “primary” sureties, Mr. J.W. and Ms. N.M. are not suitable for the above reasons. For these reasons, I find that Dr. R.S.M. is not a suitable surety in this case under the proposed plan.

Conclusion

164A strong release plan at times may mitigate the secondary and tertiary concerns sufficiently to conclude that detention is not necessary. This is not such a plan. Indeed, the proposed plan is weak. Counsel argues that this is a comprehensive plan with three strong sureties. I find otherwise as reviewed above. Because of that finding, my conclusions with regard to both the secondary and tertiary grounds do not change. The defence has not met its burden.

House Arrest and Electronic Monitoring

165Multiple times during submissions, defence counsel asserted that the defence was not proposing either house arrest or electronic monitoring but that the accused would accept such conditions if ordered.¹⁷ I find this position unacceptable. The defence has the burden in this case. It is the defence who must show that detention is not justified.

166Commonly in very serious cases, as this one undoubtedly is, the satisfaction of the burden is met by a strong plan with strong sureties. The proposed sureties here were not questioned before me regarding a comprehensive plan with house arrest and electronic monitoring. It may be simple to say that the court can just order such conditions. I disagree. I must find the proposed sureties suitable for the plan proposed. Not everybody is suitable for everything. I must also be satisfied that the proposed sureties understand the extent and nature of such conditions and are willing to enforce them. House arrest is very restrictive on both the accused and the surety. It is very time-consuming for the surety. Not everybody is willing to undertake such a burden. In a case like this, both public safety and confidence in the administration of justice require record evidence not just submissions.

167In very serious cases like this one, where the accused has a documented history of failing to abide by court orders, there is a need for evidence on 1) the willingness and ability of the sureties to satisfactorily implement house arrest and electronic monitoring, and 2) how house arrest and electronic monitoring will address the secondary and tertiary concerns in the particular case. Having received no evidence on a plan that includes house arrest and electronic monitoring, I am unable to realistically consider such a plan.

168That said, given the record evidence before me, even including any fear of COVID-19 infection as a compliance incentive, I am not persuaded that Mr. T.S. will comply with any court-ordered condition. Moreover, a heightened supervision plan is only as good as the sureties who enforce it and, as reviewed above, such sureties are not before me.

Proportionality

169The Supreme Court in Myers, at paras. 50-51, emphasized the impact of the passage of time on the appropriateness or proportionality of the detention. In other words, reviewing judges must be alert to the possibility that the amount of time in pre-trial detention will nearly equal or exceed any likely sentence if the accused is convicted. Continued detention in such circumstances could erode public confidence in the administration of justice.

170I am very much alert to this concern, especially in light of the suspension of court operations due to COVID-19. As reviewed above in the “liable for a potentially lengthy term of imprisonment” section, Mr. T.S. faces serious time in prison if convicted. Proportionality is not an issue now.

171This case is at a relatively early stage, less than five months since arrest. I have considered the progression of this case as mandated by s. 525(4) and find no one responsible for unreasonable delay. I am not concerned over the pace of the proceedings. The defence did not raise any complaints over the progress of the case. I did voice concerns over possible delay because of the separation of the charges into two informations: one charging provincially prosecuted crimes and the other charging federally prosecuted crimes. I was assured by Crown counsel that this separation would not be a source of delay because the two cases would be heard together at all stages: preliminary hearing, motions, and trial.

172I also considered use of my discretionary direction and monitoring powers under ss. 525(4) and 526. Given the early stage of this case, the potential for a lengthy prison sentence, and no indication of any delay other than the COVID-19 court suspension, I do not see the present need to use these powers. I add that the COVID-19 court suspension likely will have the biggest impact on cases farther along in the process than this case. For example, cases that have had adjournments of trial or preliminary hearing due to the suspension are obviously extended. That is not the situation here. For these reasons, I presently decline to exercise my powers under ss. 525(4) and 526.

Disposition

173When the relevant principles of bail are considered, including the constitutional right not to be denied reasonable bail without just cause and the presumption of innocence, I find the continued detention of Mr. T.S. is justified under both the secondary and tertiary grounds found in ss. 515(b) and (c) of the Criminal Code. Mr. T.S. has not met his onus of establishing why his continued detention is not justified.

Kirk W. Munroe

Footnotes

1. 1At the time of Mr. T.S.’s arrest on this case, he was on pre-trial release – Promise to Appear and Officer-in-Charge Undertaking – with regard to an August 5, 2019 dangerous driving offence in Durham Region. It is alleged in that case that at about 6:30 a.m. Mr. T.S. drove erratically at excessive speeds and raced. This alleged dangerous operation included driving on the wrong side of the road forcing other vehicles off the road. During the s. 525 submissions, defence counsel advised that the accused was offered a resolution of the Durham Region case for a fine. Crown counsel accepted defence counsel’s representations.
2. 2A third information, 19-122, charges Mr. T.S. with 3 provincial offences, including speeding under the Highway Traffic Act and transporting cannabis contrary to the Cannabis Control Act. Mr. T.S. was released on these provincial offences on a Promise to Appear and an Officer-in-Charge Undertaking.
3. 3Pursuant to s. 502.1(1), the audio conference arrangements were made in advance and were satisfactory to me.
4. 4Health Canada did return Certificates of Analyst for a non-controlled substance, phenacetin, but, as of the date of the hearing, it was not known whether or not this substance was the suspected cocaine.
5. 5I note the minor weight differences between the prosecutor’s submissions at the initial bail hearing, Exhibit 1, page 12, and the weight attributed to the substances by the seizing officer in Exhibit 13, page 2.
6. 6Originally, Mr. T.S. and Mr. A.C. were joined in an 11 count Criminal Code information, Information No. 19-1825, that was withdrawn and replaced on March 10, 2020 by Information 20-1916. On December 18, 2019, the Crown elected to proceed by indictment. With the exception of an added count, Count 12, the replacement information is identical to the former information.
7. 7Another individual was initially proposed and her affidavit filed, now Exhibit 20, but she was removed as a proposed surety due to unrelated personal issues.
8. 8Exhibits 7 through 17 were exhibits in the bail hearing.
9. 9In both his evidence and his affidavit, Mr. J.W. asserted that his age was 33. But assuming, as stated, that his date of birth is July 21, 1987, his age now is 32. He will be 33 in July. I do not find this apparent inconsistency of any significance.
10. 10Crown counsel argued similarity between the annual flu and COVID-19 suggesting, I presume, that there is little or no heightened risk to pre-trial detainees. I reject the submission. The responses of governments all over the world, including our own, to COVID-19, dramatically expose the fallacy of such a position. I am comfortable in concluding that the world has not seen such a global health calamity since the Spanish Flu, one hundred years ago.
11. 11I note, without any intention of minimizing the potential serious impact of lockdowns on inmates, that lockdowns have been a procedure in detention facilities well before COVID-19: see Myers, at para. 26.
12. 12This section subsequently was amended by deleting the clause which denied enhanced credit in certain circumstances. This amendment does not impact the issue before me.
13. 13Because this hearing was conducted by audio conference, I have not visibly seen Mr. T.S. To ensure a clear record, I inquired of counsel, and counsel advised that his client was a black male. Crown counsel took no issue with my inquiry or counsel’s confirmation. I accept that Mr. T.S. is a black male.
14. 14The third ground for bail pending appeal is a public interest ground: s. 679(3)(c). In R. v. Oland, 2017 SCC 17, at paras. 32 and 36, the Supreme Court acknowledged the similarity of the tertiary ground and the public interest ground. Citing Oland, at para. 24, Brown J.A. states, “The public safety component of s. 679(3)(c) of the Criminal Code essentially tracks the requirements of s. 515(10)(b) governing an accused’s release pending trial:” Stojanovski, at para. 18.
15. 15I also concede that the COVID-19 situation is a factor in the proportionality assessment which may intersect with the secondary ground. In this s. 525 case, I prefer to address the issue of COVID-19 and proportionality later in these reasons.
16. 16The defence also raises the question of whether the suspected cocaine is, in fact, cocaine, given that there have been Health Canada analyses on the other two substances but not on the suspected cocaine. In addition, Health Canada Certificates of Analyst showing the existence of a non-controlled substance. I believe this issue is better addressed in factor 4: the likelihood of a lengthy prison sentence.
17. 17Although not clear, the defence seemed to suggest that any bail conditions more onerous than those proposed by the defence, shifts the burden to the Crown, citing the “ladder” principle found in s. 515(2.1) and emphasized in Antic, at para. 47. Thus, according to this reasoning, it is the Crown’s burden not only to satisfy the court of the necessity of house arrest and electronic monitoring, but to provide support for such a release. I disagree with this reasoning. The “ladder” principle generally requires a court not to order a more onerous form of release unless the Crown shows why a less onerous form is inappropriate. Even assuming the “ladder” principle is applicable in a reverse onus case, compare R. v. Ishmael, 2019 ONSC 596, at paras. 38-34 with R. v. Pascal, 2018 ONSC 2896, when a defence proposed release plan is rejected, it does not compel the Crown, or the court for that matter, to search for a more onerous plan that might be satisfactory.