Court File and Parties

COURT FILE NO.: CR-1149/20 DATE: 2020-05-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – K.H. Accused/Applicant

Counsel: K. Whillans, for the Crown G. Fournier and R. Beckett, for the Accused/Applicant

HEARD at Sudbury: April 28, 2020

Reasons ON Bail Review

A.D. KURKE J.

Overview

[1] The applicant is charged along with four other people on a 51-count information with eleven offences stemming from an incident on February 9, 2020. The offences include: weapons dangerous, attempt murder (of two people) with a firearm, possess prohibited device, possess firearm without being the holder of a licence (x2), point a firearm, discharge a firearm, possess firearm knowing that he was not the holder of a licence, being the occupant of a motor vehicle in which he knew there was a firearm, possess loaded prohibited firearm, and being masked with intent.

[2] The attempt murder and the discharge firearm charges put the onus for release on the applicant, pursuant to s. 515(6)(a)(vii) of the Criminal Code. On March 12, 2020, after a bail hearing, J.P. S. Ashick (the “J.P.”) detained the applicant on the secondary and tertiary grounds of bail.

[3] The applicant applies for review of that decision pursuant to s. 520 of the Criminal Code, asserting that 1) the applicant does not pose a flight risk if released, 2) the applicant does not pose a danger to public safety if released, 3) the administration of justice would not be brought into disrepute if the applicant were to be released, 4) the COVID-19 pandemic threatens the health and safety of accused persons held in custody, and 5) the applicant would have the services of an ankle bracelet monitoring company if released on bail. From argument at the hearing of this application, I understand the first three grounds argue the ability of the applicant to be released on bail if a material change in circumstance is found on the fourth and/or fifth grounds.

Facts at bail

The allegations

[4] On February 9, 2020, shortly before 9:00 p.m., Greater Sudbury Police received a panicked 911 call from E.S., who indicated that an armed assailant had come into her apartment at 306 Whittaker Street and her boyfriend had been shot in the chest and arm while lying in bed. Shortly after that call, A.L. called to report what he thought was a break and enter, as he had seen three people run from a building on Whittaker Street and get into a Nissan Versa and leave. He and his girlfriend began following the Nissan in their own vehicle and reported the Nissan’s licence plate. Video surveillance confirmed two people entering the building just before 8:40 p.m., and three people leaving the building. Witnesses inside the apartment told police of more than one person entering at the time of the shooting.

[5] Still in communication with police, A.L. followed the Nissan to Notre Dame and then up to Lasalle Blvd., where the Nissan turned into a lot at 775 Lasalle. Police were dispatched and quickly pulled into the lot, where they were able to observe the Nissan at the far end. There is also video of the Nissan in the lot, which shows two people getting out and heading into the bush, and then two people returning to the vehicle. There was fresh snow that evening. The Nissan left and was now followed by a police vehicle.

[6] Police followed the Nissan towards Azilda and performed a high risk stop of the vehicle. Five persons exited the Nissan at gunpoint: S.R. the female driver, C.A. the front passenger (also known as “Jeremy”), and from the back R.D., L.M., and the applicant (also known as “Woods”). The applicant told the officer with whom he was dealing that he was from Scarborough and was up visiting his girlfriend and that his mother was white and his father black. On being booked in and searched, a blue latex glove was found in the applicant’s pocket. Drugs were found taped to the leg of C.A.

[7] L.M., in her statement to police, confirmed that she was in the car at Whittaker Street initially with S.R., “Jeremy” (C.A.), who was white with dirty blond hair, and “Woods” (the applicant), who is black. At Whittaker the two males had left the car, leaving L.M. and S.R. in it. Shortly after, R.D. came running out and hugged L.M., followed by C.A. and the applicant. They all five then left the scene.

[8] The same evening, police returned to the area behind 775 Lasalle where they had observed the persons from the Nissan to have gone, and they followed fresh footprints in the snow to a wooded area. In the snow beneath a tree to which the tracks led, police later discovered a loaded nine-millimetre Ruger handgun with 15 rounds in its over-size magazine, a prohibited device. Bullet casing colour variations in the magazine matched casings at the scene on Whittaker. A police search of the Nissan turned up an air assault gun and pellets, drugs, a digital scale, a bandana, and a box of blue examination gloves. In the Nissan’s front console police discovered a loaded sawed-off revolver, a prohibited weapon. Neither the revolver nor the Ruger had ever been registered.

[9] E.S., who was pregnant, told police that R.D. had been visiting her home on Whittaker during the day prior to the shooting with a friend “Jay.” R.D. owed “Jay” $14,000 and was selling drugs for him. E.S.’s boyfriend M.C. returned to the residence and went to his room to sleep. E.S. let R.D. use her phone and shortly afterwards a white, blue-eyed male masked with a bandana matching the one found by police in the Nissan came into the apartment shooting, and E.S. ran into the bedroom where M.C. was.

[10] E.S. went to hide in the closet, and saw M.C. get shot in the left chest. Fortunately, the bullet did not hit his heart, but it did penetrate a lung, and exited his right side, hitting his arm and nicking an artery. “Jay,” who was in the room, was also shot in the left leg. The shooter and R.D. then fled the residence. M.C. also described the shooting to police. “Jay” told E.S. not to call police, and he also left the building. This man, whose name is N.W-M., was later apprehended by police at the hospital when he went there to have his leg attended to.

The applicant’s prior conduct in Sudbury

[11] A collision report from the Greater Sudbury Police Service documented a motor vehicle accident in Sudbury in which the applicant was involved on December 5, 2019, for which he was charged with careless driving. He was driving a vehicle registered to an Espanola woman.

[12] Witnesses described to police that from January 20, 2020, “Jeremy” and “Woods” allegedly engaged in violent conduct with firearms around Sudbury. R.D., Jeremy, and Woods were allegedly involved in drug and human trafficking. In January, Jeremy and a black male, both armed with guns, attended a residence and confronted a male and his girlfriend over drugs and money. Jeremy threatened to shoot the male with the encouragement of the black male, and when his gun would not fire, he struck the male in the head and arm with a machete. Six days later Woods shot someone in the leg with a nine-millimetre handgun. Six days after that, Woods struck someone in the face with a handgun. On February 7, 2020, “Jeremy” went into a room at the Microtel on the Kingsway, and beat up a male in a room, and stole his cellphone and keys.

The bail decision

The bail plan

[13] The plan that was proposed at bail involved a release with two sureties and house arrest.

[14] The applicant’s mother, N.H., described the applicant as half black, and a quarter each white and aboriginal. She works at the Native Women’s Resource Centre and is involved with addictions counselling and cultural programming, among other things. She wanted her son to experience his heritage and attend powwows and sweats. N.H. believes her son to have mental health issues, but the J.P. found no evidence to support this. N.H. testified at the bail hearing that the applicant told her after his arrest that he had been “doing” Percocets and drinking “lean”.

[15] The applicant’s attendance in indigenous programming was demonstrated by letters showing participation by the applicant in Anishnawbe Health Toronto Program (“AHTP”) summer camps and cultural programming in 2015. The letters were supportive of future participation by the applicant in their addiction, mental health and traditional healing programs. The J.P. found that it was only from the point that the applicant had been charged that N.H. had again investigated cultural, addiction and mental health resources that would be available to the applicant through the AHTP.

[16] Concerning her suitability as surety N.H. claimed that she never had any problems with the applicant not listening to her. She testified that she would always be at home as she was on a disability related to a blood condition discovered because of a tumor in her jawbone. The applicant would live with her and her daughter in their Scarborough apartment. N.H. would assist in getting help for the applicant through the AHTP. N.H. acknowledged that she had not seen the applicant, who had a room in her home, since the middle of January. She admitted that this was abnormal, but he did have a Toronto girlfriend with whom she thought he was spending his time. N.H. agreed that the applicant had lied to her about his whereabouts and gotten his Toronto girlfriend to do so as well. The J.P. found that the applicant had “fooled” his mother for a lengthy period.

[17] E.D., a friend of N.H., was also put forward as surety and as a backup for N.H. when she had to step out or attend medical appointments. E.D. works in the administration office of the building where N.H.’s apartment is located. Video surveillance cameras at the building could create a record of the applicant leaving the building contrary to conditions of bail. Although she claimed to see the applicant frequently, E.D. admitted that she had not seen the applicant since the middle of January. L.S. is a long-time friend of V, a nurse, and the applicant’s godmother. She offered herself not as a surety, but as a support person for the two sureties.

[18] The J.P. rejected the bail plan. It troubled the J.P. that, although the applicant had supposedly been living with his mother in her Scarborough apartment before arrest, N.H. had not been aware of the applicant’s significant time spent in Sudbury in December 2019, and January and February 2020. Rather, N.H. believed that the applicant was with his girlfriend in the Beaches area of Toronto. Similarly, although E.D. claimed to have seen the applicant three or four times weekly prior to his arrest, she was not aware of the extended periods of time that he had spent in Sudbury. Worse still, L.S. testified that the applicant had been out of the home for an extended period of time and that N.H. was distraught and trying to locate him through social media and his Toronto girlfriend and pleading with him to get him to come home.

[19] This evidence reasonably caused the J.P. significant concern about the viability of the plan.

The J.P.’s findings concerning the grounds of bail

[20] The J.P. found that the applicant had met his onus on the primary ground. He had no criminal record and had retained local counsel to deal with his charges.

[21] On the secondary ground, the J.P. found that the Crown had a strong case that the applicant was in the apartment when the two males were intentionally shot, M.C. in the chest and N.W-M. in the leg. There was evidence of more than one shooter entering the apartment when the shooting erupted. The participants all knew each other or of each other, were not completely cooperative with police, and were all part of a criminal subculture that dealt in drugs, human trafficking, guns and violence. The important civilian witnesses in the case required the court’s protection from “the retaliation of criminals, organized or not.” The J.P. found that the applicant had not shown cause on the secondary ground.

[22] On the tertiary ground, the J.P. found that there was significant evidence linking the applicant to the shootings on Whittaker, to the gun in the Nissan vehicle console, and to the gun hidden in the bush at 775 Lasalle Blvd., and more forensic testing could disclose further evidence. The offences were grave, involving the attempted shooting murders of two men using unregistered, untraceable handguns. The circumstances surrounding the commission of the offences involved deliberate shootings in a drug subculture context in a private home where a pregnant woman was situated, and the attempt to hide a firearm in a location where innocent people could come upon it and come to harm. There was the potential on these facts of a significant period of incarceration. The J.P. held that the applicant had not shown cause on the tertiary ground.

Material change: the new plan of bail and COVID-19 issues

[23] The applicant asserts material change in the form of an improved plan of bail, incorporating the use of an ankle bracelet by which his whereabouts could be monitored. The applicant also points to the dangers to which he is exposed in custody as a result of the COVID-19 pandemic as a further material change. The same two sureties provided updated affidavits.

[24] An affidavit of Michael Nuyen describes the electronic monitoring technology from Jemtec Inc. that would be used for the applicant. It involves the wearing of an ankle bracelet by the applicant that would confirm whether he was in-range or out-of-range of his residence, subject to whatever exceptions are added to a release order. Alerts are generated to Jemtec personnel if boundaries are crossed, or if the applicant does not return on time from scheduled outings. For such conduct, efforts are first made to resolve the issue, and after 60 minutes an alert is “escalated” to local law enforcement. If the bracelet is tampered with, an alert goes out and local police are immediately notified.

[25] In the affidavit and in responses to Crown written questions, Nuyen candidly acknowledged that his product cannot prevent the monitored person from committing further offences or provide information about what he is doing or with whom. It does not provide video or audio monitoring and does not have GPS capability. It cannot show that a surety is present. It cannot prevent local or distant travel. There was additional evidence on the bail review that N.H. had already paid to install the device in her home.

[26] The applicant has filed the affidavit of Dr. Aaron Orkin, physician and epidemiologist, sworn April 7, 2020. According to Dr. Orkin: a. incarcerated persons have a “substantially worse” health status than the rest of the public in relation to chronic disease “including cardiorespiratory disease, mental health challenges and addiction.” b. incarcerated persons therefore have a higher chance of intensive-care admission or death if they get COVID-19. “Social distancing” as we understand the term, is central to control of the spread of the COVID-19 virus, and cannot be accommodated in overcrowded conditions, such as those in jails. c. Given the “congregate living” in jails, which includes close quarters, shared toileting and eating facilities, and service personnel moving among persons confined to their cells, “it is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada.” The only way to reduce infections and death is to reduce the jail population. d. Accordingly, “unnecessary admissions” to jails are a health hazard in the COVID-19 context. However, Dr. Orkin acknowledges that his opinion is only a medical one, and courts must take other factors into account also.

[27] On consent, the Crown put into evidence an unsworn affidavit of Nathan Aubin, Deputy Superintendent of Operations at the Sudbury District Jail, along with the Ontario Solicitor General’s document “Response to COVID-19 Information Note” dated April 21, 2020.

[28] The Information Note provides the following data: a. Since March 16, 2020, there has been a 32% reduction in inmates province-wide, so that on April 21, 2020, there were currently 5,707 inmates in provincial custody. b. As of April 20, 2020, 67 inmates and 10 staff had tested positive for COVID-19 throughout Ontario. It is noteworthy that of these only one person has tested positive in northern Ontario, an inmate at the Monteith Correctional Complex. c. Processes have been developed in the jail system to report outbreaks to the local medical officer of health and ministry health professionals, and to contain outbreaks by medical isolation and decontamination of affected areas. d. All jails have medical staff made up of doctor(s) and nurses and develop separate housing plans for medically vulnerable inmates. e. On admission to a provincial jail, inmates receive a health assessment covering health history, infectious disease, mental health status, substance use and withdrawal management, acute or chronic conditions, and accommodation for health issues. Health care teams assess individual inmates for monitoring needs or high health risk determinations. f. All inmates, including those newly-admitted from outside or elsewhere in the system, are screened for COVID-19. Those screening new inmates wear PPE to limit the possibility of the spread of contagion. Inmates are assessed for symptoms, and if symptoms are present, they are held in a monitoring intake unit for a minimum of 14 days before removal into the general population. g. Staff at jails and visitors to jails are also screened for COVID-19 symptoms and may not enter the jail if they have a fever. Those staff presenting with a fever are not permitted to work until they are medically cleared. h. Jails are taking increased precautions: limiting visitors; limiting movement of prisoners in and out of jails to reduce the opportunity to acquire infections; inspecting and cleaning facilities regularly, particularly where an infected employee has been; inmates are given cleaning supplies and directed on proper cleaning protocols of themselves and their living areas; staff have access to PPE.

[29] Concerning the Sudbury District Jail itself, Deputy Superintendent Aubin’s affidavit detailed the following: a. The jail is adhering to the guidelines put in place by the Solicitor General. b. In fact, the inmate population at the jail has been reduced by 40%. c. There are currently no cases of COVID-19 at the jail in staff or inmates, although the results of some tests remain outstanding, and it is not known how many tests have been performed. d. At the jail, staff encourage inmates to observe social distancing guidelines, and cells remain open during the day to allow more space for social distancing. e. Staff at the jail are issued surgical masks that must always be worn at work. f. The applicant is in a cell with one other inmate and has the option to request a cell to himself, which would be considered if operationally feasible. He is provided daily with cleaning supplies, access to showers and time out of his cell.

Law concerning bail review and bail

[30] Pre-trial detention is the exception rather than the rule. It is to be employed in limited circumstances and only when it is necessary to promote the proper functioning of the bail system: R. v. Antic, 2017 SCC 27, at para. 50.

[31] Pursuant to s. 520 of the Criminal Code, a reviewing court may intervene if the J.P. at bail committed an error of law or made a clearly inappropriate decision or allocated too much or too little weight to relevant factors. The reviewing court may not intervene simply because it would have weighed various factors differently or reached a different conclusion. Additionally, the court may vary the initial decision if new evidence shows a material and relevant change in the circumstances of the case: R. v. St-Cloud, 2015 SCC 27, at paras. 120-121.

[32] The primary ground of bail in s. 515(10)(a) focuses on detention as a means of ensuring the accused person’s attendance at court to be dealt with according to law. That is, it is concerned with an accused person’s potential for flight or non-attendance at court. The J.P. found that the applicant had discharged his onus on the primary ground.

[33] Concerning the secondary ground in s. 515(10)(b), its use for detention is constitutionally circumscribed: the requirement of a “substantial likelihood” of interfering with the administration of justice or committing further criminal offences has been established as the threshold: R. v. Morales, [1992] S.C.J. No. 98, at paras. 39-46. The focus under this ground is whether concerns about interference with the administration of justice or the commission of further offences can be controlled by a proper plan: R. v. Aden, 2019 ONSC 2043, [2019] O.J. No. 2439 (Sup. Ct.), at paras. 21-24.

[34] The tertiary ground in s. 515(10)(c) remains a self-standing ground for denying bail and is not limited in its focus to a certain class of crimes or exceptional circumstances. The ultimate question to be answered is whether detention is necessary to maintain confidence in the administration of justice. That question is to be answered by resort to a consideration of the combined effect of the four factors listed in the provision and of all other relevant circumstances in the case, including the personal circumstances of the accused, the status of the victim and the impact on society of a crime committed against that person, and the fact that a trial may be significantly delayed: R. v. St-Cloud, 2015 SCC 27, at paras. 50, 53-71, 87; R. v. A.A.C., 2015 ONCA 3450, at paras. 45-50.

Analysis

[35] In the application before this court there were no allegations of specific errors made by the J.P. The J.P.’s decisions rejecting the bail plan and to detain on the secondary and tertiary grounds are not clearly inappropriate. The application focused on material changes in circumstance as a result of the ankle bracelet and the COVID-19 pandemic.

Secondary ground

[36] I find that there is no material change in circumstance on the secondary ground, as the evidence about the ankle bracelet and the COVID-19 pandemic, having regard to all the relevant circumstances, would not have affected the decision of the J.P. at bail: R. v. St-Cloud, 2015 SCC 27, at para. 137.

[37] The ankle bracelet adds nothing of substance to the plan that was set out at bail. While there may be some utility in some circumstances for the use of an ankle bracelet monitoring device, it adds little to the video surveillance already promised at bail in this case. The video surveillance could already record comings and goings from his residence by the applicant, even if it does not send out an alert to authorities.

[38] An ankle bracelet cannot warn authorities about telephone or internet or physical contact with Crown witnesses or criminal associates: R. v. Ma, 2015 ONSC 7709, at para. 55. Without GPS capabilities, the bracelet can offer no assistance except an indication that a person has deviated beyond the bounds established by its base unit in the residence of an accused. And even then, the monitoring of the device appears to offer a window of opportunity of an hour before steps are taken to notify local authorities. Removal of the bracelet will cause an alarm to go out, but the subject will be at large and left to his own devices until he is recaptured. It does not take long to commit an offence if one is minded to do so, and the strong evidence in this case underscores that concern.

[39] The charges here are very serious, involving attempted murder and numerous gun and weapon charges. While the ankle bracelet is a change in the plan, it is not a material change in the context of an individual prepared to be a party to such alleged gangsterism as is involved in this case. The J.P. was concerned that the sureties were plainly unable to exercise the constant vigilance and authority that would be required to control the applicant, who had already duped them in serious ways. In such circumstances, I cannot agree that the mere presence of the bracelet would have “at the very least, a psychological deterrent effect”: R. v. T.L., 2020 ONSC 1885, at para. 22. Without actual credible evidence of such an effect on the applicant, this statement can represent nothing more than wishful thinking.

[40] The applicant advances a similar argument concerning the COVID-19 pandemic, that it will offer some psychological deterrence to the applicant, and thereby relieve concerns on the secondary ground. And indeed, it has been held in this court that the secondary ground is implicated because of “the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials”: R. v. T.K., 2020 ONSC 1935, at para. 60; R. v. J.A., 2020 ONSC 2312, at para. 85; R. v. Dawson, 2020 ONSC 2481, at para. 47.

[41] The logic of and basis for such a generalized claim as those cases advance elude me. In my view, an evidentiary basis to validate the application of such a principle to a particular case is essential: R. v. Baumhour, unreported, April 15, 2020 (Ont. Sup. Ct.), at para. 26. Certainly, there is no evidence before this court that the applicant is at all concerned about the risks to him of COVID-19 or that he would comply with any conditions imposed upon him in order to avoid being subjected again to those risks. Further, common sense would instead dictate that efforts at witness tampering, if they could decrease the likelihood that the applicant would have to spend a further very significant period in custody, might make the risk of reincarceration pending trial, COVID-19 infection, and likely speedy recovery a chance worth taking.

[42] The finding that there is no material change in circumstance on the secondary ground would ordinarily end this inquiry. But these are extraordinary times. I will go on to consider the tertiary ground.

Tertiary ground

[43] There can be little argument that the looming presence of the COVID-19 pandemic represents a material change in circumstance. I accept, for the purposes of this review, that the COVID-19 pandemic is a factor to consider in the context of this bail review, with respect to the proposed new plan of bail and at least the tertiary ground of bail under s. 515(10)(c) of the Criminal Code: R. v. J.S., 2020 ONSC 1710, at paras. 18-20; R. v. Cain, 2020 ONSC 2018, at para. 8.

[44] The evidence of Dr. Orkin underscores the court’s obligation to consider the COVID-19 pandemic as a factor in determining whether an individual should be released from custody, but it does not supplant the due assessment of traditional bail considerations, as even Dr. Orkin acknowledges. He speaks in terms of the reduction of “unnecessary admissions.” In other words, the goal of reducing the prison population to reduce the spread of the COVID-19 infection must not cause a court to lose sight of the protection of the public and the public’s confidence in the administration of justice that the judicial interim release provisions are intended to foster. The determination requires a balancing of relevant factors: R. v. Kazman, 2020 ONCA 251, at para. 20. Sometimes admissions are necessary.

[45] No evidence was put forward at bail or advanced at this review that the applicant suffers a heightened risk of serious illness if he is infected by COVID-19. The very limited evidence of his substance use does not permit the court to find that he must somehow thereby be immuno-compromised and peculiarly susceptible to the virus. There is no satisfactory evidence before the court of the applicant suffering from mental illness so as to suggest that this applicant would be more susceptible to COVID-19 or its more severe consequences. Although we all will have our own individual fears about the virus, a plea for release based on those fears should be substantiated by some evidence of actual susceptibility: R. v. Nelson, 2020 ONSC 1728, at para. 35; R. v. Jeyakanthan, 2020 ONSC 1984, at paras. 33-37; R. v. Budlakoti, unreported, March 27, 2020 (Ont. Sup. Ct.), at para. 14.

[46] Indeed, though detained persons in custody may face some health concerns, the evidence before the court on this review demonstrates that the Sudbury District Jail is taking steps to address concerns about the spread of COVID-19 within that institution, to implement the public policy of social and physical distancing, and to practice personal and facility cleanliness, insofar as possible, within the custodial setting. There appear to be no COVID-19 cases at the Sudbury District Jail, and no reasonably-based concern that infected inmates might be transferred there wholesale, which can ground a decision for release: cf. R. v. Malieck Mohamed, unreported, April 22, 2020 (O.C.J.), at paras. 18-19.

[47] Although COVID-19 represents a material change in circumstance on the tertiary ground, and the applicant’s new plan of bail must be considered, I find: a. that, for the reasons discussed in relation to the secondary ground of bail, the ankle bracelet adds no material assistance in the circumstances of this case; b. that the plan for judicial interim release otherwise remains the same as that offered at bail, and relies on sureties who were reasonably found by the J.P. to be insufficient to control the significant risks represented by the applicant; c. that there is evidence that the Sudbury District Jail, where the applicant is detained, has procedures in place to control the spread of COVID-19, and that no one has yet been found to have the virus at that institution; d. that there is no credible or trustworthy evidence that the applicant would suffer severe health consequences as a result of the COVID-19 virus, even if he does acquire it; and e. that, in the absence of a viable plan, even in the context of the COVID-19 pandemic, all the factors considered at bail strongly favoured and continue to strongly favour detention, in order to maintain confidence in the administration of justice.

Conclusion

[48] For the above reasons, the application is dismissed.

A.D. KURKE J.

Released: May 4, 2020

COURT FILE NO.: CR-1149/20 DATE: 2020-05-04 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Keshaun Halovich

Reasons ON BAIL REVIEW

A.D. KURKE J.

Released: May 4, 2020