ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR/20-91 BR DATE: 2020-04-30

B E T W E E N:

HER MAJESTY THE QUEEN Respondent W. Milko, for the Crown Attorney

- and -

P.K. Applicant A. Audet, for the Applicant

Heard: April 23 and 27, 2020

REASONS FOR RULING ON APPLICATION FOR BAIL REVIEW - SECTION 520 OF THE CRIMINAL CODE

This proceeding was brought and determined during the COVID-19 pandemic, after the Chief Justice of the Ontario Superior Court of Justice suspended regular court operations.

A Publication Ban is continued pursuant to ss. 517(1) and 520(9) of the Criminal Code. However, in the interests of justice, these reasons may be circulated and used by counsel for other court proceedings. Appropriate redactions in regards to the names of the accused and sureties along with the specific details of the offences must be respected.

A.J. GOODMAN J.

[1] This is an application pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of the applicant’s detention order. The applicant, P.K., was detained following a bail hearing on September 27, 2019 before Justice of the Peace Child of the Ontario Court of Justice in Hamilton.

[2] The applicant is charged with robbery x 3, possession of stolen property over $5000 x 2, unauthorized possession of a firearm in a motor vehicle, possession of a firearm knowing it’s possession is unauthorized, possession of a firearm contrary to order, and fail to comply with a youth probation order, and contrary to their respective provisions of the Criminal Code. The alleged offences arise from events that occurred on January 19, 2019 in Hamilton.

[3] Pursuant to s. 515(10), the justice of the peace ordered the applicant’s detention on the tertiary ground. P.K. has remained in custody since his arrest on July 30, 2019. The preliminary inquiry has not yet commenced.

[4] Due to the COVID-19 pandemic and the temporary closure of the Superior Court of Justice for all but urgent matters, the parties agreed that this s. 520 bail review could be heard in the applicant’s absence.

[5] The hearing proceeded by recorded videoconference wherein the parties presented evidence and made oral submissions. In support of the review, the applicant filed various unsworn affidavits. Viva voce evidence was not presented although the Crown had the opportunity to cross-examine the proposed sureties. The applicant also provided his own unsworn affidavit dated and the Crown did not seek to cross-examine him. Numerous cases and other written materials were filed electronically on consent and referred to during the course of submissions.

[6] Today, the return date for my ruling, counsel appeared before me via videoconferencing. I provided both oral and written versions to the parties.

Positions of the Parties

[7] On the basis of the evidence presented, and the position taken by the Crown at this hearing, the applicant argues that this Court is in a position to review the decision under the evolving authorities and principles to fashion a form of release to meet the secondary and tertiary ground concerns. In support, the applicant submits that there are three basis to sustain a material change of circumstances. First the COVID-19 pandemic. Second, the time that he has spent in custody to date. Third, a solid release plan that was met with favour by the justice of the peace at the show cause hearing in addressing the secondary ground concerns.

[8] Ms. Audet emphasizes that consideration ought to be given to my recent decision in R. v. T.K., 2020 ONSC 1935 amongst other cases, as they pertain to a material change in circumstances arising from the ubiquitous pandemic situation in Ontario and its potential impact on inmates in custodial institutions.

[9] The applicant submits that his personal circumstances – both the fact that he is triple-bunked and that his range is on the same unit as one of the designated “quarantine” ranges for newly admitted inmates – puts him at an even greater risk and clearly does not allow for any form of meaningful social distancing. Moreover, the applicant has now spent over 260 days in custody at the Hamilton-Wentworth Detention Centre. Having not previously spent any time in an adult custodial facility, it is submitted that this time – while significantly less than the length of time he faces if convicted and sentenced – has nonetheless had an important deterrent effect. This ought to be considered when assessing the relevant tests under the tertiary grounds.

[10] With respect to the proposed release, the applicant is proposing a strong and restrictive plan of supervision; the same plan that was advanced at the original bail hearing. The applicant submits that these sureties - in tandem - are able to provide comprehensive supervision in order to address the concerns on the tertiary ground and those raised by the Crown attorney during this hearing on the secondary ground.

[11] In response, the Crown disagrees that there is a material change in circumstances and that this Court can consider this bail review de novo. The Crown submits that this court ought to take a narrow approach to the assessment of the threshold issue and not acquiesce to the hyperbole surrounding the pandemic.

[12] Based on some of the recent jurisprudence, the Crown accepts the general notion that inmates face an elevated risk of contracting the virus as a result of their inability to self isolate. As a result, the Crown concedes that COVID-19 can affect the analysis under the tertiary ground. Further, the Crown acknowledges there may be circumstances where COVID-19 can affect the analysis of a material change in circumstance under the secondary ground. However, this is not one such case. There is no evidence that P.K. has pre-existing medical conditions that place him at a higher risk to contract COVID-19 or which suggest he will suffer more serious effects if contracted. The evidence provided by the Crown demonstrates that the institution is taking all necessary precautions in dealing with the pandemic.

[13] The Crown says that the strength of the Crown’s case, the violence alleged in the robbery, with the applicant’s antecedents has not changed the concerns over the applicant’s inability to follow court orders. The only change in the plan is the additional influence of COVID-19. Alternatively, even if the application does constitute a material change in circumstance, the plan still relies heavily on the sureties’ ability to control him. Although it was deemed suitable at first instance, the Crown submits that there is a substantial risk that the applicant would reoffend. The Crown says that the applicant’s conduct gives reason to believe that he will continue to commit offences if released on bail, which would jeopardize the safety of the public.

[14] The Crown says that even where a material change in circumstance is found to exist, the issue is not whether the reviewing jurist is of the view the accused should be released but whether the material change in circumstance would have impacted the original jurist’s decision. The charges are most serious, and carry a significant penitentiary terms. Further, the public’s confidence in the administration of justice would be defeated by this plan of release. Moreover, the Crown asserts that none of the factors elicited by the applicant constitute a material change in circumstance in addressing the secondary or tertiary grounds and warrants the applicant’s continued detention.

Summary of the Evidence

[15] A summary of the evidence and allegations before Justice of the Peace Child is reflected at pp. 12 - 21 of the transcript. Having reviewed this information in the context of the issues in this bail review, along with counsels’ materials, I need only briefly recite them here.

[16] Four suspects, one of whom is alleged to be the applicant, went to the Shoppers Drug Mart at 963 Fennell Avenue East in Hamilton. They arrived 2018 Nissan Altima. The three suspects entered the store wearing black balaclavas and wielding a loaded black rifle and a taser. They ordered one of the three female employees to the rear of the pharmacy. In particular, one employee was told to empty the cash registers, while another was forced to fill a garbage bag full of narcotics. An employee emptied approximately 100 bottles of narcotics and other controlled drugs. The suspect specifically asked for fentanyl and codeine. This same employee described the cold, metal a barrel of a long gun against her neck. She also described another suspect having a handheld taser and it continually sparked. While filling up the bag, the employee placed a tracking device in the garbage bag.

[17] After leaving the pharmacy, the applicant and his accomplices exited the Nissan Altima and get into a Dodge Charger driven by another co-accused, along with the loaded rifle and the bag of narcotics. Ultimately, the Nissan was seized by the police, and four black balaclavas were found in it. Police ultimately recovered the Dodge Charger abandoned on the side of the QEW. All of the suspects had fled prior to police arrival. An iPhone was recovered along with the tracking device in a black leather jacket stuffed with other boxes of fentanyl. Nearby, police recovered a black garbage bag which contained a loaded black .22 calibre rifle, and a large quantity of stolen narcotics. Video surveillance footage was also seized by the police.

[18] A production order was obtained for the phone number that one suspect had at the time, and it showed that the phone was pinging at the robbery location as well as the location of where the Dodge Charger was ultimately abandoned. This phone communicated with a phone number that ultimately is tied to the applicant. A cell phone was recovered in the grass beside the recovered Dodge Charger, which contained videos and photos in relation to the applicant and his co-accused. On the day of the robbery, there are text messages communicating for a co-accused to be picked up by the applicant. The applicant’s fingerprint is found on the garbage bag, which contained the loaded rifle. Additional evidence includes the applicant’s phone calling and texting a co-accused, both up to and shortly after the time of the robbery.

Legal Principles

[19] Briefly, the approach to a review under s. 520 or 521 of the Criminal Code has been altered since the release of the Supreme Court of Canada’s seminal decision in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

[20] At para. 120 of St-Cloud, the Supreme Court stated that a judge can review a Justice's decision with respect to the detention or the interim release of an accused where new evidence is submitted by the accused or the prosecutor if that evidence shows a material and relevant change in the circumstances of the case.

[21] In St-Cloud, at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code, the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) "the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another"; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case.

[22] The fundamental rights require that the justice ensure that interim detention is truly justified having regard to all of the relevant circumstances of the case.

[23] In St-Cloud, the court held that in order for new evidence to be admissible at the bail hearing, four criteria must be met. The criteria are from the court’s prior decision concerning the admissibility of new evidence on appeal in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759. The Palmer criteria were modified to suit the bail review context in St-Cloud. When new evidence meets the four criteria for admissibility, the reviewing judge can repeat the analysis for whether detention is justified as if he/she were the initial decision maker. The four Palmer criteria and the modifications in the bail context are as follows:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial.

[24] In the context of a bail review, the reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for a reason that is legitimate and reasonable (para. 132).

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

[25] In the context of a bail review, it is sufficient that the evidence is relevant for the purposes of the bail review (para. 135).

3. The evidence must be credible in the sense that it is reasonably capable of belief.

[26] This criterion must be interpreted in light of the relaxation of the rules of evidence at the bail stage (para. 136).

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[27] This last, albeit important factor, stipulates that the fresh evidence on review must be “significant” in the sense that it must be reasonable that it could have impacted the balancing exercise undertaken by the justice (para. 137).

[28] The application of these principles has to be flexible given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused and that the release hearing takes place at the very start of the criminal proceedings. As Wagner J. (as he then was) states at para. 129 of St-Cloud:

In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr.C. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr.C.

[29] Indeed, the Supreme Court rejected the Crown's submission for a narrow approach to new evidence. At para. 131, Wagner J. wrote that "[a] generous and liberal interpretation of the meaning of "new evidence" in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this court". At para. 130, Wagner J. notes "that the pre-trial detention of accused persons -- like their release -- is by its nature very often interim and not final”: See also R. v. A.A.C., 2015 ONCA 483, [2015] O.J. No. 3450, at para. 52.

[30] Section 515(10)(b) of the Criminal Code requires a justice to consider whether detention is necessary for the protection or safety of the public. In addressing the secondary ground, detention is justified where it is necessary for the protection or safety of the public having regard to all of the circumstances. It has been settled that in dealing with the secondary ground, the danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. Appellate courts have held that, in general, society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime. The denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any extraneous purpose.

[31] 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 risk” 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. It is also well established that jurists must consider the approach directed by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509.

[32] If there is a substantial likelihood that the accused will not comply or cooperate with the terms of the bail, he or she is likely to be denied bail on the principles and objectives of the bail provisions of the Code.

[33] The tertiary ground provides that the application of s. 515(10)(c) is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove that the detention of the accused is justified to maintain confidence in the administration of justice.

Analysis: Material Change in Circumstances – Application of the Legal Principles

[34] The “material change of circumstances” threshold to invoke this de novo hearing, is referenced in St-Cloud at para.138:

If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified. The Palmer criteria, modified as I have just done, must not be applied in a manner that delays or needlessly complicates the release process. As I explained above, that process, by its very nature, generally requires an expeditious and flexible procedure. The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.

[35] Ms. Audet submits that with the current pandemic, the preponderance of recent jurisprudence from the Superior Court opens wide the door to a threshold consideration of a material change in circumstances and a hearing de novo. The applicant also argues that the material change of circumstances provided to the court goes beyond just the threshold issue to invoke a hearing de novo. In effect, the grounds for review with the new plan not only meets the threshold of material change, but goes further to tip the balance for release under s. 515(10) of the Code.

[36] Without comingling the material tests under St-Cloud, the applicant’s assertions are relevant both to the threshold issue and to an assessment of whether the court would permit a plan of release.

[37] In T.K., the Crown conceded a material change in circumstances due to the pandemic. Nonetheless, implicit in my reasons for judgment was support for such a conclusion.

[38] Respectfully, I disagree with the views held by certain colleagues of this court to the effect that COVID-19 does not itself constitute a material change in circumstances. Or if it does, it is not open to use the existence of that change alone to conduct a review absent a conclusion by the reviewing judge that the decision of the justice of the peace was clearly inappropriate, or otherwise failed to meet the other tests set out in para. 121 of St.-Cloud.

[39] As I have already made the finding in support of a material change of circumstances linked to the recent pandemic, my conclusion in T.K. and in more recent cases such as R. v. J.A., 2020 ONSC 2312 and R. v. Dawson, 2020 ONSC 2481, amongst other prevailing jurisprudence is dispositive of this threshold issue.

[40] Hence, the applicant has successfully satisfied the criteria as outlined in St. Cloud and its progeny. I am satisfied that the “door is opened” for a review by virtue of the aforementioned material change in circumstances, namely, the COVID-19 pandemic.

[41] Suffice it to state, that while I am entitled to conduct a hearing de novo at this stage, it doesn’t mean that the aforementioned consideration of the global pandemic allows for a de facto release. Those factors must also be balanced with the plan being proposed, along with the jurisprudence related to the secondary and tertiary grounds for detention.

The Plan for Release

[42] The applicant proposes the exact same plan and sureties as presented at the initial show cause hearing. In their respective affidavits, the sureties advise that they not only appreciate the seriousness of the applicant’s charges but also recognize the expectations of their responsibilities. Both the applicant’s grandfather and a family friend are prepared to have the applicant live with either of them. The plan includes strict house arrest terms coupled with the additional supervision of a GPS electronic ankle monitor.

[43] Steven Tan, Director of Operations for Recovery Science Corporation, provided detailed information and confirmed in a letter the availability and suitability of electronic monitoring in this case. He advised that such monitoring can be implemented at either residence being proposed.

[44] The Crown does not challenge the sincerity or willingness of any of the sureties to act in this case. Thus, there was no cross-examination on their affidavits. The fundamental issue is with the applicant’s adherence to terms of bail and not the sureties’ overall suitability.

Analysis: Secondary Ground

[45] In addressing COVID-19, I refer to the case of R. v. J.S., 2020 ONSC 1710. While in J.S., Copeland J. was tasked to consider a bail review premised on the tertiary ground soon after the pandemic emergency in Ontario was declared, at para. 18, she states:

In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.

[46] Moreover, Copeland J.’s comments at para. 19 of J.S. regarding the impact of COVID-19 as it applies to the detention centres are instructive:

I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.

[47] As I held in T.K. at para. 60, the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials (that are currently suspended) is not only a consideration on the tertiary ground but also a valid factor when considering the secondary ground for detention; in particular for non-violent offenders on a bail review.

[48] As mentioned, in this hearing de novo, the Crown renews its concerns on the secondary grounds. Mr. Milko acknowledges that there may be situations where COVID-19 presents a material change in circumstances in relation to the secondary ground. However, this consideration cannot apply in every case.

[49] In support of its position, the Crown provided information from Public Health Ontario, with the collection of data regarding infection and death rates of COVID-19 in the Ontario population. A recent published document, which is entitled: Epidemiological Summary COVID-19 in Ontario: January 15, 2020 to April 19, 2020 advises that as at April 19, 2020, Ontario had 11,184 confirmed cases of COVID-19. 2,525 of these cases were from persons aged 20-39 or 22.6 per cent of the total infections. There were a total of 584 deaths from COVID-19. There were no deaths of any persons 19 and under. The death rates of all infected persons under 60 years of age in Ontario is less than 1 per cent of confirmed cases. The death rates for people over 60 rises dramatically.

[50] The Crown also furnished an updated April 21, 2020 report from the Ministry of Community Safety and Correctional Services. The extensive information in this report includes, but is not limited to:

Ontario has implemented several strategies to limit the effects of COVID-19 on our inmate population and our correctional staff. Through the combined actions of the Ministry of the Solicitor General and the Ministry of the Attorney General, the population in Ontario’s adult correctional institutions has been reduced significantly.

Quick Facts: As of April 6, 2020, there are 5,707 inmates in custody across all 25 institutions. This is a 32% reduction since March 16, 2020. Inmate Testing: Inmates tested as of April 20, 2020: Total tested for COVID-19: 392, total negative results: 176, total pending results: 92, total positive results:67, results unknown: 57…

On April 17, 2020, an outbreak was declared by Peel Public Health at the Ontario Correctional Institute (OCI). The ministry temporarily closed the facility on April 21, 2020 after transferring all inmates to the Toronto South Detention Centre (TSDC). All inmates who have been transferred from OCI have been placed in medical isolation and appropriate protocols are being followed to ensure protection of staff and inmates. OCI inmates have been placed in a separate part of TSDC and will not be placed with existing TSDC inmates to reduce any potential spread of COVID-19…

Facilities are inspected and thoroughly cleaned regularly and/or as required…In the case of a confirmed positive case of COVID-19, an outside vendor will come in to complete a deep cleaning in the areas where the employee was working and/or travel pattern within the facility… Inmates are provided with cleaning supplies and direction on the proper cleaning protocols, as well as appropriate PPE where necessary…Proper handwashing and cough/sneezing protocol has also been communicated to inmates. For health and safety reasons, inmates are not provided with hand sanitizer, but may have supervised access in some cases. Information has been posted in inmate areas…Staff have access to PPE including face masks, eye protection, gloves and gowns, and are instructed to wear it when appropriate according to Guidelines developed by the Ministry of Health…Inmates also have access to PPE including face masks and are instructed to wear it when appropriate according to guidelines developed by the Ministry of Health.

If an outbreak of a reportable communicable disease occurs or is suspected, institution officials take immediate precautionary containment measures in accordance with operating procedures, including notifying the local Medical Officer of Health, and SolGen provincial health professionals. Institution health care staff working collaboratively and under the direction of the local Medical Officer of Health to manage the situation, including containment strategies such as medical isolation.

[51] After the date of the hearing, and while my decision was under reserve, Mr. Milko provided additional information. On April 24, 2020, a COVID-19 outbreak was declared at the Hamilton jail. Apparently, one inmate tested positive for COVID-19 as did one correctional officer. As a result of this new information, I invited the parties to re-appear before me by videoconference.

[52] The Crown submits that the institution is taking all necessary steps to contain this outbreak. A letter dated April 28, 2020 was provided from Tom Dykstra, Superintendent of the Hamilton-Wentworth Detention Centre. Some of the information therein included:

On Friday April 24th, 2020, Hamilton-Wentworth Detention Centre was made aware that an inmate housed in our isolation unit had tested positive for COVID-19. Hamilton Public Health declared this positive test an outbreak as the source of the virus could not be traced.

Since the outset of this COVID-19 pandemic, HWDC undertook extensive procedures as outlined in our “Isolation Unit Practices” document, in order to prevent the spread of this virus. I have attached Appendix A which is the HWDC Isolation Unit Practices.

Very little has changed at the HWDC since Public Health has declared an outbreak as the HWDC was already leading the province in its practices and procedures. The HWDC is not in lockdown.

The inmate who contracted COVID-19 was already housed in a single cell in isolation and did not have any contact with any other inmates.

The Correctional Staff who dealt with the infected inmate were a limited number of dedicated staff. They all wore complete Personal Protective Equipment [PPE] and continue to do so. All Correctional Staff who had contact with the inmate are identified, currently in isolation and are being tested.

[53] The applicant filed an unsworn affidavit with concerns raised about the conditions in jail: “I am currently on unit 5CR where I am triple bunked. I have been triple bunked for the majority of the time that I have spent in custody since my arrest. As a result of COVID-19, all of our personal visits at the jail have been cancelled. There have been frequent lockdowns that have resulted in days without access to showers or phones. I appreciate that the jail is doing their best to make sure inmates and staff are safe but the situation in the jail is concerning. Before COVID, we would normally be provided with disinfectant wipes in the mornings to clean things on the range like the phones, tables, TV remote, and grill. In the past few weeks we have stopped getting these wipes. Ordinarily, inmates assigned to clean the washrooms on the range would also be given gloves while they are cleaning but now this does not always happen. As inmates we have not been given masks or gloves or hand sanitizer. Sometimes guards have been wearing masks but not usually. Being on the range – in particular while triple bunked – makes it impossible to keep our distance from other inmates. 5CL which is right beside my range, has recently been turned into a quarantine range for new inmates.”

[54] Following the “outbreak” the applicant provided addition information in a supplemental affidavit. He advises, inter alia, that “he remains triple bunked on range 5CR. 5CL is currently being used as an isolation unit due to the COVID pandemic. I do not know whether the inmate that tested positive for COVID was on 5CL or one of the other isolation units. The same correctional officers who attend to inmates on 5CL also attend to inmates on 5CR. Some of the correctional officers who work on our unit wear masks and gloves. Others do not. As of today’s date, no one has attended to take my temperature nor have been tested for COVID. We have access to soap but continue to go without the disinfectant wipes.”

[55] Given the ubiquitous nature of this pandemic, and the novel, albeit evolving jurisprudence, there can be no surprise that there is differing opinion at the Superior Court level on the issue of COVID-19 as it affects the Palmer test and, more significantly, its application upon a proposed release plan on the secondary and tertiary grounds.

[56] For example, in R. v. Jeyakanthan, 2020 ONSC 1984, [2020] O.J. No. 1409, the accused was charged with a series of firearm offences and possession of MDMA. He was a young adult with no criminal record. He was detained on secondary and tertiary ground concerns. The original sureties were unsuitable because they could not supervise the accused. The revised release plan proposed different sureties and added a curfew and electronic monitoring. McWatt J. accepted that COVID-19 was a material change in circumstances warranting a de novo hearing.

[57] In her analysis, McWatt J. rejected the notion that inmates face an increased risk of contracting COVID-19 and did not follow Copeland J.’s finding in J.S. McWatt J. held that J.S. and cases that follow that line of reasoning were based on speculation and not evidence. She affirmed Edwards J.’s finding in R. v. Nelson, 2020 ONSC 1728, [2020] O.J. No. 1279, that medical evidence should be submitted by an applicant to show that he has underlying health issues that make them more susceptible to contracting the virus. Detention was ordered as there was no evidence that COVID-19 was present at the jail, or that the accused was more susceptible to the virus than other inmates; and even with electronic monitoring, the sureties would not be able to successfully supervise the accused.

[58] In Nelson, the accused was charged with serious, violent crimes and had a criminal record. While ultimately dismissing the bail review application, Edwards J. recognized the pandemic and the heightened difficulty facing detainees: see paras. 40 - 42. I am mindful that Nelson was decided very early on in the chronology of events involving the COVID-19 pandemic.

[59] In R. v. Budlakoti, 2020 O.J. No. 1352 (S.C.), the accused was initially detained on firearm offences. The court found that the COVID-19 health crisis warranted a review of the detention order on the basis of a material change in circumstances. The accused had a recent and related criminal record and advanced the same release plan as at the initial hearing: house arrest and electronic monitoring with his parents as sureties. The court took judicial notice of the risks associated to the COVID-19 health crisis and the increased risk for inmates confined in detention centers. The accused argued that since he suffers from gastroesophageal reflux disease, celiac disease, and mental health issues, he is subject to increased susceptibility and/or heightened symptomology from COVID-19 as compared to other inmates. Without “proper” medical evidence, Laliberte J. found Budlakoti’s argument to be a mere possibility. The court concluded that the steps taken by the jail authorities to manage the harms associated to COVID-19 lowered the risk for the accused in that case and he was detained.

[60] In the case of R. v. T.L., 2020 ONSC 1885, [2020] O.J. No. 1371, the accused was charged with multiple firearm offences and being an accessory after the fact to attempted murder. T.L. had a related record and was detained on secondary and tertiary ground concerns. Molloy J. concluded that a review of his detention was justified for two reasons. First, the new plan was markedly different from the previous plan including electronic monitoring. Second, there was a misapprehension of the evidence that affected the result of the initial bail hearing.

[61] In R. v. C.J., 2020 ONSC 1933, [2020] O.J. No. 1312, the accused was detained on drug and firearm offences. He applied for a review of his detention order which was rooted in concerns under the tertiary ground. C.J. is a young adult with no criminal record. Conlan J. held that the addition of electronic monitoring to the release plan coupled with COVID-19, constituted a material change in circumstances. Conlan J. expressly rejected the submission that courts need evidence that a particular accused is more at risk of contracting COVID-19 than if they were not in jail: at para. 9.

[62] In R. v. Cain, 2020 ONSC 2018, [2020] O.J. No. 1389, the accused was facing several serious and violent charges. Cain was initially released on these charges but is alleged to have breached his release order. He was detained on secondary ground concerns. The court determined that the existence of COVID-19 constituted a material change of circumstances. Cain had a dated and unrelated record. The court adopted earlier findings in J.S. and T.K. that the risk posed to inmates from COVID-19 is relevant, but not determinative as to whether an individual plan of bail meets the secondary and tertiary criteria governing release.

[63] In Cain, London-Weinstein J. rejected the suggestion in Nelson that an accused must satisfy the court that he has some subjective personal characteristic in order for the court to accept that he is at increased risk of infection by virtue of incarceration. The court takes judicial notice of the fact that recommended social distancing and frequent hand washing are not readily available while a person is in custody. The court accepted Cain’s testimony that as a result of a liver injury, he is prone to infections. The court was satisfied that Cain’s three months incarceration during a pandemic had a salutary effect on his willingness to follow court orders. He was released on house arrest bail with a residual support surety and electronic monitoring.

[64] In R. v. Rajan, 2020 ONSC 2118, [2020] O.J. No. 1437, the applicant was charged with domestic violence offences involving a firearm. Rajan was initially detained under the secondary ground. The court accepted that there has been a change of circumstances based both on the strength of the Crown’s case and the COVID-19 crisis. Rajan advanced the same release plan; however, two important things had changed since the detention order in November 2019. First, with the exclusion of the firearm in a pre-trial motion, the prosecution’s case against the applicant had substantially diminished, with a corresponding weakening of the propensity inference against the applicant. Second, the applicant had now accumulated more pre-trial custody. In that case, Harris J. concluded that taken together, these two changes favoured release under the secondary ground.

[65] I take judicial notice of the COVID-19 pandemic as it can adversely affect inmates housed in correctional institutions. While I have held that this is an important factor amongst others in addressing the secondary (and tertiary) ground, it is not determinative and must be balanced with other considerations.

[66] As I stated in T.K. and J.A., while the pandemic is daunting and challenging, I am reminded that the court must be mindful of the risks of releasing violent offenders back into the community for the sake of reducing the population in detention centres.

[67] Again, it bears repeating that any decision along this analysis is not intended to send out a message that due to the pandemic there exists a revolving door policy for offenders, and in particular, violent offenders to commit crime with the expectation of release or that offenders can now benefit with a “get out of jail free” card. As I held in T.K. at paras. 68 and 69:

Indeed, there is a delicate balance that need be put into play. However, drawing from St-Cloud, in my opinion, a reasonable and well-informed member of the public, about whose confidence in the administration of justice is concerned; being familiar with the basics of the rule of law and the fundamental values of criminal law, in conjunction with the ubiquitous nature of the current pandemic and a reasonable plan to address the release of non-violent offenders, would not lose confidence in the criminal justice system.

All this is not to suggest that violent offenders or those who commit crimes of violence could never be released on a bail review. However, notwithstanding the current pandemic, this can only occur if and when the well-established principles from the jurisprudence are satisfactorily addressed and not merely regurgitating a plan of release that was rejected at first instance.

[68] Thus, recognizing the COVID-19 pandemic in institutions as an important factor in any plan of release on the secondary ground, I have opined that there is an important distinction to be considered when addressing a release plan for non-violent offenders as opposed to those who are violent.

[69] As mentioned, subsequent to the initial review hearing, there is now some evidence of a COVID-19 outbreak at the Hamilton Detention Centre. I accept Superintendent Dykstra’s informational letter as to the steps the institution is taking. I am satisfied that the jail has established protocols and is taking all necessary precautions. From my perspective, the Hamilton jail is reasonably well-equipped to handle the outbreak at this juncture.

[70] As discussed in recent cases, there is no obligation on the applicant to provide evidence about COVID-19 and its personal impact on him or her. Of course, with the pervasiveness of COVID-19, and the nature of the institution, there is always the possibility of any inmate housed in a secure and restricted setting from contracting the virus.

[71] In this case, the applicant has presented no medical evidence or raised any specific health concerns regarding any pre-existing medical conditions that place him at a higher risk to contract COVID-19 or would make him more susceptible to more severe consequences from an infection.

[72] Notwithstanding the COVID-19 situation, the law is clear that the release plan must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: St-Cloud, at paras. 135, 137. The question remains whether the plan addresses the secondary ground concerns, whether the applicant will abide by the rules and whether that is enough to meet his onus for release.

[73] The Crown concedes that the justice of the peace thoroughly canvassed all of the relevant issues. However, the Crown accurately suggests that I am able to reconsider the evidence afresh and arrive at my own conclusion.

[74] Despite finding that the applicant was a danger to the public based on the allegations and his past convictions, the justice of the peace was ultimately satisfied, based on the strength of the proposed plan of supervision, that the applicant had discharged his onus on the secondary grounds. Specifically, the detaining justice noted:

I think the accused is a danger to the public based on convictions, and of course these new allegations. It is almost – from what I heard from the sureties, it is like a Jekyll and Hyde scenario. When he is with them, he appears to be a normal lawabiding (sic) individual, and when he is not with them obviously other things have happened.

In any event, I believe that in spite of these comments, the accused could be released on the secondary ground. I believe the onus has been discharged. I believe there is a risk, but I do not believe it is a substantial risk based on the plan, which includes GPS monitoring. And I agree with Ms. Grady that it is simply; someone can cut a bracelet off and then we are dealing with simply tracking the individual. Well, we cannot even track him when he cuts the bracelet. But if the bracelet were on, he would be tracked, but if it was removed then that would be completely different. But I just cannot think in these circumstances that the accused would disrespect his grandfather, the other two individuals to do that. And it appears on a previous occasion even though it was only for three to four months he obeyed conditions when Mr. Herak and Mr. Diro were the sureties. So in any event, that deals with the secondary ground.

[75] I have no reason to dispute the Justice of the Peace’s conclusion that the sureties were suitable to assist with the plan in supervising P.K. Here, the Crown has a strong circumstantial case. The allegations against the applicant involve violence, a factor that can be relied upon as a significant reason for detention on the secondary ground.

[76] In R. v. H.(R.), 2006 ONCJ 116, 38 C.R. (6th) 291, Trotter J. (as he then was) highlighted that the level of violence attaching to an alleged offence is relevant to assessing the potential risk to the public; in part because of the danger serious violent offences pose to the community. See also R. v. Heang, 2011 ONSC 2037 and R. v. Croteau, 2016 ONSC 1515.

[77] In R. v. Aden, 2019 ONSC 2043, 2019 O.J. No. 2439, Dawe J. had occasion to address a bail review of a violent offender and noted at para. 24:

The critical question, in my view, is whether the Applicant’s proposed release plan is sufficient to allay the concerns about public safety and the protection of the public that would be presented by the Applicant’s release on bail…

[78] P.K. has a serious youth record. It include findings of guilt pursuant to the Youth Criminal Justice Act (“YCJA”). Specifically, on November 4, 2016, he received a sentence of 704 days in custody (352 under community supervision) for carrying a concealed weapon, resist peace officer, prohibited firearm x 2, careless use/storage of a firearm, unauthorized possession of a firearm, knowledge of unauthorized possession of a firearm possession for the purpose of trafficking (cocaine), and fail to comply with recognizance. The sentence was varied on appeal 16 months secure custody and 8 months community supervision followed by 12 months probation. There is no doubt that such a sentence was severe for a young person under the YCJA.

[79] I take notice of the Crown’s comments to illustrate the applicant’s background leading up to the current offenses. I have considered the applicant’s conduct while on previous forms of release as well as his continued - apparently unabated - involvement with restricted or prohibited firearms. The allegations against the applicant are also extremely disturbing. It is through this lens that one must assess whether or not the COVID-19 crisis truly alters the balance under the secondary ground. Even within the context of COVID-19, there must be a plan that materially addresses the concerns of the original jurist.

[80] There is no change in the plan other than the applicant now infusing the COVID-19 pandemic as a basis for release. I note that electronic monitoring is not infallible and its introduction to a release plan where there is a personal stake lacking by the accused (and notionally, concerns about his abiding by release terms), do not remedy the reality that “the real ‘pull of bail’ is still missing: United States of America v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380, at paras. 11-12.

[81] As I implied in T.K., this Court must assess the material changes in circumstances from both the spread of a highly contagious disease and whether the new plan of release addresses all of the bail hearing judge’s concerns on the relevant grounds. I also must undertake the balancing exercise engaged in this review that is influenced by the specific precautions taken at the Hamilton Wentworth jail with the dearth of medical evidence to suggest that P.K. is at higher risk than other inmates.

[82] Overall, when I consider the current state of affairs at the Hamilton jail and with due consideration to the efforts being made at the institution in relation to the COVID-19 pandemic, I am compelled to conclude that in this case, the applicant’s risk of contracting COVID-19 is prevalent; but to a reasonable extent, is under some degree of control. Even if I am in error, the pandemic, in and of itself, does not advance the reasonableness of the plan to remedy the applicant’s continued detention on the secondary ground.

[83] I agree with Mr. Milko that although the sureties may be well-intended, and despite their desire and willingness, I doubt that over an extended term of bail they would be able to adequately supervise P.K. As Mr. Milko ably puts it in relation to the escalation of criminal behaviour, this offender has gone from zero to 60 m.p.h. in just a few years. A mere few months with different sureties does not give this court any comfort that he will abide by conditions, even strict ones.

[84] Indeed, during this pandemic, an individual is required to adhere to social distancing and any rules implemented under quarantine legislation. An accused’s personal history regarding non-compliance with previous court orders is particularly relevant in assessing whether the accused would likely adhere to social distancing and stay-at-home rules. Electronic monitoring proposed by the applicant will not cure the secondary ground concerns favouring detention.

[85] Accordingly, I am skeptical of his ability to adhere to public recommendations regarding physical distancing and stay at home rules. I am also not convinced that the applicant will follow the terms of bail rather risk being returned to jail where he is more likely to be exposed to COVID-19, whether or not its effects on him are ultimately non life-threatening.

[86] The caution that I implied in T.K. when referencing the pandemic as potentially influencing a plan of release for violent offenders in custodial institutions on either the secondary or tertiary grounds is relevant in this case. Indeed, firearms and violence is no stranger to this young person. Based on P.K.’s alleged involvement in this robbery and with his related record, I am persuaded that he is a violent offender with limited self-control. I say this because of the applicant’s age, criminal antecedents and wanton disregard in failing to follow judicial orders and abide by stringent terms of bail. The plan is deficient as P.K. is not at a low risk to re-offend.

[87] In summary, I cannot agree with the justice of the peace’s conclusion on the secondary ground. In my opinion, the detaining judicial officer comingled or failed to fully address the risks involved with the release plan. In any event, I find that there is more than just “a risk”, rather there is a substantial risk that P.K. will commit other offences or interfere with the administration of justice. The Crown has met its onus on the secondary ground.

Analysis: Tertiary Ground

[88] The applicant was originally detained on the tertiary ground only. Ultimately, the reasons for his detention at the original bail hearing were as follows:

Given what is almost the overwhelming nature of the Crown’s evidence that the offences are considered grave, the circumstances involved a firearm being used. That the accused is liable for a potentially lengthy term of imprisonment. I believe that a reasonable member of the public even with the plan that is put forward would be shocked by the release of the accused.

[89] In addressing the Crown’s concerns in this case, Ms. Audet referred to my recent decision in T.K. and the cases of Rajan and J.S. Counsel submits that the COVID-19 pandemic and the evidence adduced at this hearing can displace any of the concerns on the tertiary ground.

[90] With respect to the tertiary ground, the four circumstances outlined in s. 515(10)(c) are: Detention is justified where it is necessary to maintain [public] confidence in the administration of justice, having regard to all of the circumstances, including: The apparent strength of the prosecution’s case; the gravity of the offence; the circumstances surrounding the commission of the offence, including whether a firearm was used; and 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.

[91] The four circumstances listed in s. 515(10)(c) of the Criminal Code are not exhaustive. A court must not order detention even in situations where the four listed circumstances support this result. Rather, the court must instead consider the totality of the circumstances of each case, paying particular attention to the four listed circumstances to determine whether detention is justified. St-Cloud, paras. 68 and 69.

[92] The heightened risk posed by COVID-19 to incarcerated individuals is echoed in the affidavit of physician and epidemiologist, Dr. Aaron Orkin. As noted by Dr. Orkin at para. 27: “The degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently located in these facilities. This is a geometry problem, not a policy or a strategy problem. There simply is not enough space to create the distance required between people in Ontario corrections facilities.”

[93] I am cognizant that Dr. Orkin is an epidemiologist focussed squarely on the public health implications of continued incarceration. He said as much at para. 37: “My opinion is concerned only with what is in the community’s best interest with respect to the imminent threat of a COVID-19 pandemic. Subject to other considerations, any solution that promotes and enables physical distancing between individuals is in the community’s best interest for the management of COVID-19”. The qualification of being “subject to other considerations” is important.

[94] The community’s best interest with respect to managing the COVID-19 pandemic is a relevant consideration with respect to the tertiary ground. But on the tertiary ground, the question of detention or release is focused on the public’s perception of the administration of justice. This is broader than the community’s best interest in the management of the pandemic. In addressing what is ultimately at stake, in St.-Cloud, Wagner C.J. quoted from R. v. Collins, [1987] 1 S.C.R. 264 at p. 282. “Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?” “The reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable.”

[95] The issue raised by Dr. Orkin is whether administration of justice would be brought into disrepute by continued detention, given the health risks to inmates and correctional staff. But his analysis, at the epidemiological level, is not granular enough for our current purposes. At the end of the day, after balancing all of the relevant considerations, the ultimate question is whether detention is necessary to maintain confidence in the administration of justice. This balancing exercising requires examination of all the relevant factors as they relate to this accused and whether his detention or release would bring the justice system into disrepute. In other words, if an accused is released, the accused person's release plan must be relevant to whether public confidence in the administration of justice is capable of being maintained: R. v. B.(A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.), at p. 501.

[96] A review of some of the current caselaw on the tertiary ground demonstrates the multiplicity of considerations in determining this issue.

[97] Recall the case of T.L. The primary ground was not in issue. The tight supervision plan (house arrest surety bail) satisfied the accused’s onus on the secondary ground. Molloy J. affirmed Copeland J.’s finding in J.S. that the risk posed to inmates from COVID-19 is a factor to consider under the tertiary ground. The additional time that T.L. would be in custody pending his trial due to COVID-19 was a factor to take into account on the tertiary ground. A well-informed member of the community, knowing all of this information and understanding the constitutional rights involved, would continue to have confidence in the administration of justice if T.L. was released on bail under strict terms to be under house arrest.

[98] In R. v. M.K., 2020 ONSC 2266, the applicant had demonstrated a significant health concern that made him particularly susceptible to the virus. At para. 58, London-Weinstein stated:

I regard the Covid-19 virus threat as one factor which must be balanced with all of the relevant factors to determine whether the tertiary ground concerns can be met in this case. I would not have released MK if Covid-19 had not posed such a fundamental threat to the health of MK, who has a previously collapsed lung and the risk of reoccurrence of this condition.

[99] In R. v. Fraser, 2020 ONSC 2045, the accused unsuccessfully sought release from detention, arguing a material change in circumstances based on a new release plan and 2) the COVID-19 pandemic. He argued that the virus posed a potential health and safety risk to inmates in general, and to the accused in particular, because he was being housed with 12 other inmates and he was in remission from leukemia. The application judge agreed that the COVID-19 virus was a material change in circumstances warranting a de novo bail hearing, and that the heightened risk posed to detained inmates is a factor when assessing the primary, secondary and tertiary grounds for detention. The judge also accepted the accused’s testimony, the recommendations of health experts and that it was not possible to implement the protocols in his current living conditions. The accused was a cancer survivor which put him at increased risk; and his fear of the virus was motivation to comply with his release terms. Nevertheless, the judge denied the application because, weighed against the accused’s long history of disobeying court orders and unsatisfactory bail plan, the risk he posed to public safety could not be managed in the community.

[100] Again, it is through this lens that one must assess whether or not the COVID-19 crisis truly alters the balance under the tertiary ground. For a true material change in circumstance to occur, even within the context of COVID-19, there must be a plan that materially addresses the concerns of the original jurist. Another consideration is the individual health concerns of each accused. In MK, it tipped the scales in favour of release. In Fraser, it did not.

[101] As discussed in recent cases, there is no obligation on the applicant to provide evidence about COVID-19 and its personal impact on him or her. Of course, with the pervasiveness of COVID-19, and the nature of the institution, there is always the possibility of any inmate housed in a secure and restricted setting from contracting the virus.

[102] In this case, the applicant has presented no medical evidence or raised any specific health concerns regarding any pre-existing medical conditions that place him at a higher risk to contract COVID-19 or would make him more susceptible to more severe consequences from an infection. In other cases, where the applicant has an established health concern in light of the ongoing pandemic, this consideration may play a prominent role under the balancing exercise engaged in respect of the tertiary ground.

[103] As mentioned, P.K. is charged with a most serious offence. The Crown has a strong circumstantial case. The allegations against the applicant are also extremely violent. P.K. was present at the actual time of the robbery and is potentially facing a significant penitentiary term. At this juncture, the allegations provide that P.K. is involved in serious, violent offences. “Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability”: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13.

[104] In R. v. Baidwan, 2020 ONSC 2349, Skarica J. offers an interesting point to the tertiary ground and the public confidence in the administration of justice, at para. 82:

The last thing that the Canadian public needs right now is a third wave of fear arising from an emptying out of the jails of persons charged with serious and violent crimes who have been legitimately detained after being afforded due process and after having been provided the full panoply of legal rights provided by the Charter of Rights and Freedoms and the Canadian judicial system. The wholesale release of dangerous persons who would otherwise be detained but for the COVID-19 pandemic would seriously undermine the confidence of the public in the administration of justice.

[105] The touchstone of the tertiary ground is the need to maintain public confidence in the administration of justice. In adding the COVID-19 pandemic into the proposed release plan’s “mix”, as expressed in the recent jurisprudence, I am not persuaded that the applicant has met his onus to attenuate these concerns on the tertiary ground.

Disposition

[106] It bears repeating that in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while exercising the balancing required to sustain its fundamental role in the administration of justice and the protection of the public.

[107] Notwithstanding the COVID-19 pandemic, the decidedly restrictive release plan proffered by the applicant will not address the secondary and tertiary ground concerns. The bail review application is dismissed and the applicant’s continued detention is ordered.

A.J. GOODMAN J. Released: April 30, 2020

COURT FILE NO.: CR/20-91 BR DATE: 2020-04-30

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – P.K. ___________________________ REASONS FOR RULING ON APPLICATION FOR BAIL REVIEW - SECTION 520 OF THE CRIMINAL CODE __________________________ A.J. Goodman J. Released: April 30, 2020