Court File and Parties

COURT FILE NO.: 8195/20 DATE: 2020-05-01 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN R. Skeggs, Counsel for the Crown

- and -

JASON CUNNINGHAM E. McCooeye, Counsel for the Accused

HEARD: April 29, 2020 VARPIO J.

Reasons on Detention Review

[1] On January 3, 2020, the accused was detained by Justice of the Peace Cachagee. Recently, the accused filed a detention review application pursuant to s. 525 of the Criminal Code of Canada. Two days prior to the hearing, he also filed a bail review application pursuant to s. 520 of the Criminal Code of Canada. In both regards, the accused argues that the COVID-19 pandemic, along with his new plan of release, demand that the accused be released pending trial. While the accused’s argument has some merit, the accused’s detention remains necessary pursuant to the governing Criminal Code provisions and the governing caselaw and, for the following reasons, I dismiss his applications.

The Evidence

[2] The Applicant stands charged with a variety of weapons offences that flow from a highway traffic stop made in the Town of Blind River, Ontario on December 24, 2019. At 11:19 a.m., Mr. Cunningham was driving a rented motor vehicle that had a temporary license plate. Cst. Gravel of the OPP stopped the vehicle to investigate the license plate. Cst. Gravel pulled the vehicle over. The vehicle had four occupants. Cst. Gravel detected a strong odour of marijuana coming from the vehicle. The officer performed checks upon Mr. Cunningham and Cst. Gravel determined that the driver was bound by a firearms prohibition. Other police units attended the scene and Cst. Gravel conducted a search of the vehicle pursuant to s. 12(3) of the Cannabis Control Act.

[3] Police found small amounts of cannabis marijuana and large quantities of Canadian currency. The currency was wrapped up in elastic bands in denominations of 20, 50 and 100 dollars for a total of approximately $10,000. The occupants gave different accounts of how they got the large amounts of cash. Some of the occupants had outstanding warrants and were arrested. These individuals were given their rights to counsel and cautioned. The vehicle was searched incidental to arrest.

[4] The officers located the following in the trunk of the motor vehicle:

1. A Kel-Tec .223 calibre modified semi-automatic rifle;
2. 30 rounds of .223 calibre ammunition; and
3. A 30-round capacity magazine.

[5] As a result of the foregoing, Mr. Cunningham currently faces ten charges including firearms offences, breaches of prohibitions and breaches of probation.

[6] Mr. Cunningham has a criminal record that has a youth entry from 2013. Mr. Cunningham’s record also features four violent offences (assault, assault with a weapon, assault cause bodily harm) and a breach of recognizance, all occurring since 2017. The assault cause bodily harm entry flowed from an incident where Mr. Cunningham was alleged to have poured scalding water on a victim at a McDonald’s restaurant in Toronto in the middle of the night. Another assault flowed from a domestic violence incident where Mr. Cunningham pushed the complainant up against a fire extinguisher case hard enough to crack the glass. He is also alleged to have stomped the complainant in the stomach during the domestic incident.

[7] The matter is a reverse onus situation as a result of the charges before the court.

[8] Mr. Daniel Cunningham testified at the bail hearing that he is the accused’s brother and indicated that he would be willing to have the accused live with him in Toronto. The plan called for house arrest. Mr. Daniel Cunningham testified that he attends a school/work program during the day such that he could not keep a constant eye upon the accused. The accused had been diagnosed with schizophrenia which remains under control provided the accused takes his medication. The accused’s father Milton would also be involved, although not as a surety. Mr. Milton Cunningham lives with his son Daniel and would assist in the supervision of the accused. Mr. Milton Cunningham works during the day as well.

[9] Justice of the Peace Cachagee found the plan to be wanting “given his [Mr. Daniel Cunningham’s] school schedule and their father Milton’s work schedule during weekdays. He found that the plan “does leave the court with a high level of discomfort on a secure plan of supervision during school and work hours”. The Justice of the Peace found that he was satisfied that if the accused were released, he “would continue to engage in criminal activity. I am satisfied that detention is necessary based on my analysis of the secondary grounds”.

[10] The Justice of the Peace also detained the accused on tertiary grounds given the seriousness of the case and, as he saw it, the strength of the Crown’s case.

[11] Since the bail hearing, the world has changed. The global COVID-19 pandemic has affected virtually every aspect of Canadian life, including the justice system. Courts have been shut down, hearings are done virtually, and interpersonal contact has been highly mitigated. The Crown, in its written submissions, initially indicated that it did not believe that there had been a material change in circumstances since the accused’s detention. The Crown wisely abandoned this position and conceded at that the advent of COVID-19 constituted a material change in circumstances as per s.520 of the Criminal Code of Canada. This makes imminent sense given the caselaw that has developed around the COVID-19 including R. v. Kazman 2020 ONCA 251 at paras. 15 to 21. As such, I must engage in a reconsideration of Mr. Cunningham’s detention as described in s. 520 of the Criminal Code of Canada and R. v. St.-Cloud 2015 SCC 27, [2015] 2 S.C.R. 328.

[12] Further, as it has been 90 days since the initial detention and, as per R. v. Myers 2019 SCC 18, [2019], S.C.J. No. 18, I must also consider whether there is a further need to detain the accused given the mandates of s. 525 of the Criminal Code.

Analysis

[13] The accused makes two submissions to justify his release. First, he submits that the accused has a new plan in so far as Mr. Daniel Cunningham (who still wishes to be a surety) has a new girlfriend, Ms. Cassandra Sigurdson. Ms. Sigurdson filed an affidavit wherein she indicated that she wishes to be a surety for the accused. She was not cross-examined. Ms. Sigurdson lives in Sudbury and is an administrative assistant at Laurentian University. Mr. Daniel Cunningham lives with Ms. Sigurdson. Ms. Sigurdson is in the process of completing her degree in Women’s Studies at that school. She indicated in her affidavit that she knows the accused, but not well. The accused would have his own room in the residence. Ms. Sigurdson also deposed that she is currently working from home and “[i]t is certainly possible that even after social restrictions are lifted, I will continue to work from home for all or part of my employment.” She also deposed that she and Mr. Daniel Cunningham are practicing social distancing.

[14] The second argument buttresses the first argument. The COVID-19 pandemic has done at least two things to the criminal justice system. First, the court system has been shut down and there are currently no trial dates being set for any matters, either in custody or out of custody. Secondly, there is concern about conditions in the custodial facilities. A number of judges have considered the COVID-19 pandemic and found that inmates are at a heightened risk of contracting the disease.

[15] In this latter regard, I found Skarica J.’s case of R. v. Baidwan 2020 ONSC 2349 to be most helpful. A number of my colleagues have taken judicial notice of the conditions in certain facilities and expressed heightened concern regarding the possibility that COVID-19 could spread rapidly through the inmate population. I take the view that I cannot take judicial notice of much of the scientific information that one receives from the government and/or the media because it is expert evidence that has not been subjected to cross-examination.

[16] Skarica J.’s recitation of the evolution of the “accepted facts” of the coronavirus shows the frailties of an aggressive use of judicial notice in such a fluid circumstance. At paragraph 46 of his reasons, Skarica J. rightly noted that taking judicial notice of the known “facts” of COVID-19 prior to mid-March 2020 would have led to findings that, inter alia, COVID-19 cannot be transmitted person-to-person and that it would not affect modern life in a meaningful way. Clearly, this would have led to incorrect conclusions.

[17] Therefore, it is clear to me that a cautious use of judicial notice is appropriate in the circumstances as per para 48 of R. v. Find, 2001 SCC 32. An aggressive or overly-flexible approach to judicial notice would lead to circumstances whereby the courts fail to adhere to the two-part test in Find, namely that facts may only be noticed judicially when they are either:

1. So notorious or generally accepted as not to be the subject of debate among reasonable persons; or
2. Capable of immediate and accurate demonstration by resort to readily acceptable sources of indisputable accuracy.

[18] Much of the readily-available information regarding COVID-19 fails both prongs of the Find analysis. Because further analysis is not relevant to my decision, I need not go through a comprehensive review of same. Nonetheless, it is clear to me from all the various sources of information currently available that the following meets the Find test:

1. COVID-19 is spread by person-to-person contact either directly or via indirect transmission;
2. Individuals may be able to spread the virus while they are either pre-symptomatic or are asymptomatic;
3. The virus can be lethal;
4. The rates of mortality appear to be pronounced among the aged as well as among those who have certain underlying conditions such as respiratory ailments. The mortality rate among those who do not fall within these categories is not nearly as high; and
5. Social distancing has been utilized to lessen the rate of infection in the population and, as such, the failure to adhere to social distancing will generally increase the rate of infection.

[19] To go beyond the above-referenced five points would, to my mind, be an aggressive use of judicial notice that would not adhere to the Find analysis. The acceptance of other facts related to COVID-19 requires expert evidence given the fluidity of the science involved.

[20] In the instant case, it was conceded that Mr. Cunningham is in his 20’s without any underlying condition. Further, the Crown filed evidence of the steps being undertaken by all provincial facilities, including the local custodial facility to stem the spread of the virus. New inmates are placed in different areas for 14 days prior to entry into the general population, certain inmates are screened and other practices have been implemented. The Crown indicated verbally, and it was accepted by the accused, that the local custodial facility has no confirmed cases of COVID-19 as of a couple of days ago however it must also be noted that outbreaks in facilities can happen rapidly and without warning, as evidenced by the large outbreak at OCI in Brampton. As such, the accused has no individualized concerns about COVID-19 beyond those that affect all inmates.

[21] I also agree with Skarica J.’s view expressed at para. 82 of Baidman that “[t]he 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”.

[22] A balanced, nuanced approach to ss. 520/1 and s. 525 reviews thus requires the presiding justice to engage in the normal detention review analysis described in St.-Coud and Myers while factoring in the possibility of heightened COVID-19 infection rates among inmates in custodial facilities (without overstating the issue by using an aggressive approach to judicial notice) while being mindful about the release of dangerous individuals who, but for COVID-19, would be incarcerated pending trial.

[23] In the case before me, although the tests are somewhat different under sections 520, 521 and 525 of the Criminal Code of Canada, the end result of all the analysis is the same.

[24] I accept that the accused’s legal matters are not likely to be resolved anytime soon. The pace at which the litigation is proceeding is therefore a legitimate concern as per Myers.

[25] The accused has presented a new plan. He would live with his sureties in Sudbury, Ontario as they practice social distancing. For the time being, therefore, his whereabouts would conceivably be ascertainable.

[26] In many circumstances, this plan might be sufficient to justify the accused’s release. In this situation, however, I conclude that, if released, the accused would likely commit a further offence despite the house arrest plan.

[27] First, the nature of the offence and the evidence before the court make it clear to me that the accused is likely involved in the drug trade in some capacity. It is well-established law that the strength and gravity of the allegations before a bail court can be used to inform the secondary grounds. At pars 116 and 117 of R. v. J.A., 2020 ONSC 2312, [2020] O.J. No. 1659, Goodman J. cited the leading authority regarding the appropriate use of charges before the court (or index offences) as they relate to the secondary grounds:

However, the judgment of the Quebec Court of Appeal in R. v. Rondeau (1996), 108 C.C.C. (3d) 474, is instructive for the way in which index offence features are factored into the assessment of risk on the secondary ground. Writing for the Court, Proulx J.A. addressed the factors involved in dangerousness assessments. At p. 478, Proulx J.A. said:

In my view, several factors must be taken into account in deciding this question, including (1) the nature of the offence, (2) the relevant circumstances of the offence, which may put in issue events prior to and subsequent to the offence, (3) the likelihood of a conviction, (4) the degree of participation of the accused, (5) the relationship between the accused and the victim, (6) the profile of the accused, i.e., his occupation, his lifestyle, his criminal record, his family situation, his mental state, (7) his conduct prior to the commission of the alleged offence, (8) the danger which the interim release of the accused represents for the community specifically affected by the matter.

Rondeau links the nature of the offence and the strength of the prosecution's case to the secondary ground. The allegations respecting the index offence(s) are relevant to the accused person's future dangerousness. The strength of the Crown's case determines the weight that may be attributed to the index offence in this assessment. Although the accused person is presumed innocent, this cannot prevent a court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability.

[28] With respect to the case before me, the allegations before the court are not “happenstantial offences” whereby, for example, a person with violent tendencies is in a bar and gets into a serious altercation after being confronted by another patron. Instead, it is alleged that the accused was in possession of a dangerous firearm in circumstances that suggest that he is involved in the drug trade. While I accept that the accused is presumed innocent and that there will be issues with respect to both the Charter and the doctrine of possession, the following facts provide a strong inference that the accused is likely involved in the drug trade in some capacity:

1. He was driving the rental car;
2. The rental car was rented in his name;
3. A smell of marijuana came from the car;
4. The car contained approximately $10,000 in rolled cash;
5. The occupants of the car gave different reasons for why they had so much cash;
6. It was Christmas Eve;
7. He was approximately five hours from his Toronto home; and
8. Blind River is a relatively small and remote location with no obvious Christmas tourist attraction such that there is an obvious reason for the accused’s presence there.

[29] I have no evidence to suggest that the accused ended up in police custody erroneously (i.e. He was not in the car at all). Accordingly, the above-referenced facts strongly support said inference. Put another way, if not for the drug trade, why else would the accused be driving in Blind River, with the smell of marijuana coming from the car, with a rifle in the trunk, and with rolls of cash in the car?

[30] That is not to state that the accused has been found guilty of the offences charged. He remains innocent until proven guilty. Nonetheless, the evidence and common sense demand that, even if Mr. Cunningham is ultimately found to be not guilty of the offences charged, he was likely involved in the drug trade on the date in question in some capacity. This is a strong inference based upon the evidence before me.

[31] Second, Ms. Sigurdson deposed that the accused’s schizophrenia, which causes many of his impulsive actions, is “stable when [the accused] takes his proper dose of medication.” However, at the bail hearing, Mr. Daniel Cunningham testified that the accused’s previous criminal issues may have had to do with the fact that the accused “was going through like real episodes [associated with the schizophrenia] at those times [where he committed offences]. Like, yeah, like – yeah, he was medicated, but sometimes – he just upped the medication actually because, like you know, it wasn’t strong enough”. While the sureties may insist that the accused take his medicine if released to their care, involvement in the drug trade is not necessarily a spontaneous choice. Indeed, the accused’s current circumstance is likely not associated with impulsivity but is instead a function of some form of organized criminal behaviour.

[32] I also question the sureties’ evidence that the accused’s medication will ensure that the accused will not engage in impulsive behaviour. Given the accused’s recent criminal record, it appears that this evidence is a statement of hope rather than a prediction for the future. For example, had there been a noticeable gap in the accused’s criminal record, the sureties’ evidence (or inferences flowing from that evidence) may have been persuasive and caused me to release the accused. [^1] However, at the bail hearing the brother testified that the accused’s criminal behaviour was associated with an insufficient dosage of medication. Given the recency of the accused’s record (many convictions in 2019) and given the charges before the court, there is an insufficient period of non-criminality to suggest that the accused’s behaviour can be stopped with an increased dosage of medication.

[33] Third, any plan is subject to the willingness of the accused to comply. The vicissitudes of modern life – even given social distancing – require that at points the accused will be left alone. Going to the grocery store, attending to personal needs, etc., will undoubtedly require that the accused will be left alone in Ms. Sigurdson’s residence. Indeed, I cannot imagine that the accused would not want to avail himself of the occasional personal phone call without either of his sureties on the line. I must ask myself whether, given the circumstances described in the entirety of the evidence before me, the accused would use that time to participate in the drug trade either in person, by making phone calls or electronically. As demonstrated by what appears to be the accused’s commitment to the drug trade (he was driving five hours from home on Christmas Eve), the Rondeau analysis suggests that he would be likely to use time away from his sureties to participate in the drug trade.

[34] Even when I examine the possibility of a COVID-19 outbreak in the facility where Mr. Cunningham is housed, and even when I fully consider the fact that criminal cases are not currently being scheduled for trial given the COVID-19 outbreak, I find that the accused’s detention is necessary on the secondary grounds in so far as:

1. There is a substantial likelihood that he is involved in the drug trade;
2. He has a recent criminal record for violence that suggests that his self-control is poor. I am not satisfied that the accused’s impulse control will, by definition, be immediately improved if he takes his medication at the appropriate dosages. I do not have medical evidence in this regard, nor do I have a gap in the record from which I can draw such an inference. Accordingly, I find that the accused’s self-control is poor and that his penchant for criminality appears to be strong; and
3. Even if the sureties’ hopes are correct that an increase in medication will reduce the accused’s “episodes” and impulsivity, the accused’s impulsivity does not account for his probable involvement in the drug trade and the associated allegations before the court.

[35] I am not satisfied that the accused will abide by conditions imposed by his sureties and I am satisfied that there is a substantial likelihood that, if released even upon this plan, the accused will commit further offences. Even accounting for the concerns associated with COVID-19 (current failure to set trial dates and possible outbreaks in custody), the accused’s continued detention is necessary under s.525 and Myers (and his application under s. 520 is without merit) since the likelihood of his offending if released outweighs the countervailing COVID-19 considerations.

[36] The accused therefore continues to be detained on the secondary grounds.

[37] As for the tertiary grounds, I find that the accused’s detention is necessary in the circumstances. The offence is serious, the accused faces the likelihood of a penitentiary sentence if convicted and the allegations involve a firearm. The strength of the Crown’s case, while not overwhelming, is relatively strong. The factors that suggest that the accused is involved in the drug trade listed at paragraph 28 of these reasons also suggest that the accused at the very least knew that the gun was in the trunk of the car. I recognize that evidence changes at trial and that a case that initially appears to be strong can become weak with the effluction of time. Nonetheless, to suggest that the accused was unaware of the gun in the trunk appears to defy common sense when I consider that:

1. The accused rented the car;
2. The accused was driving the car;
3. The accused was five hours from home on Christmas Eve;
4. The accused was in the company of others who were in possession of thousands of dollars is cash rolls; and
5. The occupants gave different reasons for having the cash.

[38] It appears that the Crown has a strong case, at the very least, to prove that the accused knew that the gun was in the trunk of the car he was driving.

[39] Therefore, when I weigh the foregoing s. 515(10)(c) factors along with the aforementioned concerns regarding COVID-19 that auger for the accused’s release, I find that the accused’s continued detention is necessary in order to maintain confidence in the administration of justice as per Myers (and his s.520 application is therefore without merit) since the accused’s release would bring the administration of justice into disrepute, even factoring in the concerns associated with incarceration during the pandemic (possibility of contracting COVID-19, no further trial dates being set).

Conclusion

[40] The applications are dismissed, and the detention order remains in full force and effect.

Varpio J. Released: May 1, 2020

[^1]: i.e. Had the accused’s record had a five-year gap, and had the surety testified that the accused was taking his medication during that five-year period but recently stopped taking the medication, I could draw an inference that the failure to take the medication was at the root of the accused’s criminality. I could also find that the surety’s ability to ensure that the accused took said medication would effectively assuage any secondary ground concerns.