Court File and Parties

COURT FILE NO.: CR-18-94 BR DATE: 20200506 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – S.B.S Defendant

COUNSEL: Jenna Dafoe for the Crown Alison Craig for the Defendant

HEARD BY TELECONFERENCE: April 24, 2020

RULING ON BAIL REVIEW APPLICATION

C. BOSWELL J.

[1] SBS was convicted on May 24, 2019 of possession of diacetylmorphine (heroin), possession of diacetylmorphine for the purpose of trafficking, and possession of cocaine. He was sentenced on October 11, 2019 to 30 months in prison, less 17 months credit for pre-sentence custody, for a net sentence of 13 months. He is presently detained at the Central North Correctional Centre (“CNCC”). He is eligible for parole as of July 2, 2020.

[2] The charges that led to SBS’s convictions were laid on March 11, 2018. He was released on a surety recognizance on March 16, 2018. One of the conditions of his recognizance was that he not be present in the City of Barrie except for court attendances. Another condition was that he not possess or consume any unlawful drugs or substances.

[3] On May 16, 2019, about a week prior to the commencement of his trial on the drug charges, SBS was arrested and charged with two dozen human trafficking and associated offences. The allegations involve three women and span a time period between January 2014 and December 2018. They involve pimping, assaults and, on one occasion, administering heroin to one of the females.

[4] At the time of his arrest, SBS was in Barrie, in breach of his recognizance. A search of the vehicle he was in, incident to his arrest, yielded some 60 grams of cocaine. He was additionally charged with breach of recognizance and possession of cocaine for the purpose of trafficking. He has been in custody since the time of his arrest.

[5] SBS was before the court on February 3, 2020 and at that time consented to his continued detention on the human trafficking, breach and drug charges. He now asks this court to review the detention order and to issue a release order, so that he might be released from custody if granted parole on July 2, 2020. He proposes a three-surety plan of release with a condition of house arrest, supported by electronic monitoring.

[6] The Crown opposes the application on the basis that SBS poses an unacceptable risk to the safety and protection of the public and that his release on bail would result in a loss of public confidence in the administration of justice.

The Legal Framework

The Animating Principles

[7] Any bail hearing must be approached with three fundamental principles foremost in mind. The first two are entrenched as Charter rights. The third principle flows from the first two and has been repeatedly reinforced by recent Supreme Court decisions.

[8] First, the charges SBS faces are only allegations at this stage. The state has accused him of engaging in criminal activity. Like all accused persons, he is presumed to be innocent of the charges against him. (Charter, s. 11(d)).

[9] Second, SBS is constitutionally entitled to reasonable bail unless there is just cause to detain him. (Charter, s. 11(e)).

[10] Third, pretrial detention is the exception, while the earliest possible release, on the least onerous terms, is the default presumption. See R. v. St-Cloud, 2015 SCC 27; R. v. Antic, 2017 SCC 27; and R. v. Myers, 2019 SCC 18.

Jurisdiction

[11] SBS consented to his continued detention in February 2020. He was in the midst of a prison sentence and says that, at the time, he lacked a viable release plan. He now applies for a review of the detention order he consented to.

[12] SBS’s application is brought under s. 520(1) of the Criminal Code, which permits those accused persons detained on outstanding charges to apply to the court for a review of their detention at any time prior to trial. The very permissive language of the provision does not, however, confer upon the court an unfettered jurisdiction to conduct bail reviews.

[13] In R. v. St. Cloud, as above, the Supreme Court instructed that the jurisdiction to conduct a review of a detention order under s. 520(1) may be exercised in three circumstances: (1) where there is admissible new evidence that shows a material and relevant change in the circumstances of the case; (2) where the reasons for the detention order contain an error in law; or (3) where the detention order is clearly inappropriate.

[14] SBS’s assertion is that jurisdiction is triggered in this case by material and relevant changes in circumstances. He points to three. First, he is now nearing his parole eligibility date. Second, he now has what he considers to be a viable release plan. Third, the COVID-19 pandemic poses risks to individual detainees and to public health more broadly and supports release.

[15] The issue of jurisdiction is not controversial in this case. I am satisfied that the changes identified by SBS are relevant and material and enable this court to conduct a review of his detention.

[16] The bail review hearing was conducted by teleconference, with the consent of SBS, in view of the restrictions the COVID-19 pandemic has placed on the operations of the court.

Onus

[17] The Crown usually bears the onus of establishing why pre-trial detention is justified. Sometimes the onus shifts to an accused person to establish why detention is not justified. Section 515(6) of the Criminal Code sets out the circumstances in which there will be a reverse onus. One of those circumstances is where the accused is alleged to have committed offences while at large on a recognizance, which is the case here. Accordingly, it is SBS’s onus to satisfy the court that his continued detention is not justified.

The Grounds for Continued Detention

[18] Pre-trial detention is justified in only a narrow set of circumstances and only where necessary to ensure the proper functioning of the bail system. See R. v. Pearson, [1992] 2 S.C.R. 665 at para. 58; R. v. Antic, as above at para. 40.

[19] Parliament has aided in defining the narrow set of circumstances where continued detention may be necessary to ensure the proper functioning of the bail system. These circumstances are organized into three grounds known, by convention, as the primary, secondary and tertiary grounds for continued detention. See s. 515(10) of the Criminal Code.

[20] The bail system only functions properly if those on release attend court when required. Detention is justified on the primary ground where necessary to ensure an accused person’s future attendance at court.

[21] The bail system does not function properly if accused persons commit further offences while on release. Detention is justified on the secondary ground where necessary for the safety and protection of the public.

[22] Finally, a properly functioning bail system does not undermine the public’s confidence in the administration of justice. Detention is justified on the tertiary ground if it is necessary to maintain public confidence in the criminal justice system.

[23] In the circumstances of this case, both the secondary and tertiary grounds were argued. For the reasons that follow, I have determined that SBS’s continued detention is required on the secondary ground. It is unnecessary, in the circumstances, for me to address the tertiary ground.

The Secondary Ground

[24] The secondary ground for continued detention is provided for in s. 515(10)(b) of the Criminal Code. In assessing whether continued detention is justified for the safety or protection of the public, the court is directed to examine all of the surrounding circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[25] The “substantial likelihood” threshold does not require the court to make exact predictions about future dangerousness: see R. v. Morales, [1992] 3 S.C.R. 711. The threshold “refers to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely. See R. v. Manasseri, 2017 ONCA 226 at para. 87.

[26] The assessment of the likelihood of re-offence or interference with the administration of justice, and of the protection of the public more generally, requires a consideration of all of the circumstances of the case, which will include, but not be limited to the following:

(a) The nature and circumstances of the alleged offences; (b) The strength of the Crown’s case, to the extent it can be gauged; (c) The criminal record of the accused, if any; and, (d) Whether the accused was already on bail or probation at the time of the alleged offences.

[27] Where the circumstances of the case favour detention for the protection or safety of the public, then the accused must satisfy the court that he or she has a plan of release in place that will sufficiently reduce the risks that release may pose to a level where release is possible.

The Positions of the Parties

[28] SBS acknowledges that the charges against him are serious. I will set out the circumstances of those offences momentarily, but for certain some of the allegations are egregious. SBS recognizes this. His counsel contends that the Crown’s case is not especially strong and perhaps incapable of supporting convictions on a number of the offences charged. But the seriousness of the allegations is not denied.

[29] Moreover, SBS was on a recognizance during at least part of the period of time when the alleged offences are said to have occurred. He was arrested in Barrie, in spite of a bail condition that he not be in Barrie.

[30] For the foregoing reasons, SBS proposes a very stringent plan of release. He proposes to move in with his mother and six siblings. Two of those siblings are proposed sureties, as is an aunt who lives in Whitby. The proposal is for house arrest, supported by electronic monitoring by way of an ankle bracelet. SBS proposes that he not be permitted out of his residence unless in the direct and continuous company of one of his sureties.

[31] Defence counsel submitted that the proposed plan of release is more than sufficient to allay any concerns on the secondary ground. Given his compelling release plan and the pressing public health interest in reducing prison populations due to the COVID-19 pandemic, SBS submits that, from the perspective of the public, his continued detention is no longer justified.

[32] The Crown’s position is that SBS has not met his onus to establish that continued detention is not justified on either of the secondary or tertiary grounds. The Crown points to a number of concerning features of the case including:

(a) The egregious nature of the offences. SBS is alleged to have exploited, and trafficked for sexual purposes, three young and vulnerable females in the Barrie area. He is alleged to have injected one with heroin in an effort to make her dependent on the substance and, in turn, him. He is alleged to have used violence and degradation to bend the females to his will. Two of the three report witnessing him in possession of a firearm; (b) The abject refusal to be bound by the conditions of his prior release. SBS, while on a judicial interim release, is alleged to have continued to commit further drug offences, to have committed human trafficking offences, and to have otherwise breached his bail by entering the City of Barrie notwithstanding a judicial prohibition against doing so; (c) SBS’s lack of concern for the position of his surety. His mother – a single mother of seven children – was his surety on his prior release. She pledged $10,000, all of which is now at risk; and, (d) Numerous insufficiencies in the proposed release plan. Two of the three proposed sureties are the younger siblings of SBS. The Crown is concerned about the power imbalance between the accused and his younger brother and sister. He had no problem breaching his prior recognizance and putting his mother at risk. He will, in the Crown’s view, have no problem putting his siblings at risk. The third proposed surety, the accused’s aunt, testified under cross-examination that she had purposefully not read all of the allegations against SBS because they upset her – they did not reflect the nephew she knows. The aunt will not, Crown counsel says, be prepared to accept the honest risks of supervising SBS.

Discussion

[33] The secondary ground is about the protection and safety of the public. It is also about risk management. The court must first come to a conclusion about what risks release will entail. If the safety or protection of the public would be put at risk by the release of the accused, then the court must determine if that risk can be managed by the imposition of appropriate conditions. As Justice Gary Trotter observed in R. v. Dang, 2015 ONSC 4254 at para. 58, “the bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention.”

[34] The risk assessment engaged by the secondary ground requires an examination of all of the relevant circumstances of the case. I will begin that examination with an overview of the circumstances of the alleged offences. I will proceed from there to consider other factors, including the strength of the Crown’s case, the personal circumstances of SBS and the impact of the COVID-19 pandemic.

The Circumstances of the Alleged Offences

The Human Trafficking Charges

[35] The human trafficking allegations against SBS involve three complainants: AS, JW and SS. What follows is the basic substance of their allegations.

AS

[36] AS was 26 years old when she met SBS. A romantic relationship had recently ended for her and she had lost custody of a child born of that relationship. She was using cocaine and crack cocaine, which she was obtaining from SBS. AS allowed SBS to use her residence in exchange for drugs. He supplied her with heroin, which she became addicted to. She says her addiction was the result of SBS injecting her with heroin over the course of a number of weeks.

[37] AS says she witnessed SBS selling cocaine, crack cocaine, heroin, fentanyl and carfentanil. He also brought a variety of women into her home to engage in sex trade work. At some point SBS told AS that he could no longer supply her with drugs for free. She began to work in the sex trade to pay for her drugs. She says SBS forced her to do so and that he made the arrangements for clients for her. Her drug use continued to get worse. She gave all the money she earned to SBS.

[38] According to AS, SBS assaulted her on multiple occasions. The assaults included being punched, forcibly confined and thrown down stairs. On one occasion she stole drugs from him and ran away. He found her on a street in Barrie and kicked and punched her to the point where she defecated and urinated on herself. He took her pants and shoes and left her on the side of the road. She had to flag down a stranger for a ride.

[39] AS says she saw SBS with three firearms over the course of their relationship. She says he frequently pointed one at her.

[40] I am unclear as to when and how the relationship between AS and SBS ended. AS apparently continued to work in the sex trade after the relationship ended in order to pay for drugs.

JW

[41] According to JW, she and SBS had a relationship over the four year period between 2014 and 2018. This time period corresponds to the period AS says she was involved with SBS.

[42] JW says she went to jail after taking responsibility for possession of drugs that actually belonged to SBS. When she got out of jail SBS began to supply her with free drugs as repayment. Eventually he stopped the free supply and she began to work in the sex trade to pay for them.

[43] JW says she gave 90% of her earnings to SBS to pay for drugs.

[44] She said SBS became increasingly violent with her throughout their relationship. On one occasion she fled to a women’s shelter after he beat her. She was afraid of SBS. She saw him with firearms. She was unable to get away from him, she said, until he was arrested.

[45] JW says she saw SBS hit AS, pour water on her and demean her in other ways.

SS

[46] SS had a one year relationship with SBS. She was addicted to drugs when she met him. Like AS, she had recently lost custody of a child. She began to work in the sex trade in order to pay for drugs from SBS. She was getting heroin and fentanyl from him. All of the money she made from sex trade work went to SBS, aside from money she used to buy cigarettes. SBS posted ads for her and arranged for clients, booking all her appointments.

[47] SS says she was never assaulted by SBS but did see JW assaulted by him.

The Breach and Drug Charges

[48] On March 18, 2018 SBS was released on a $10,000 surety recognizance which provided, amongst other things, that he remain in the residence of his surety (his mother) except when in her company or when going to and from work. He was specifically ordered to remain out of the City of Barrie unless attending court.

[49] Barrie Police officers observed SBS entering a white commercial van in the City of Barrie on May 16, 2019. He was not going to or from work. He was not in the company of his surety. And he was not in Barrie for the purpose of attending court.

[50] SBS was arrested and charged with the human trafficking offences as well as breach of recognizance. A search of the white van, incident to his arrest, yielded 59.08 grams of cocaine. SBS was charged with possession of cocaine for the purposes of trafficking. It is of note that there were two other individuals in the white van at the relevant time.

The Strength of the Crown’s Case

[51] Assessing the strength of the Crown’s case at an early-stage bail hearing is frequently difficult. The evidentiary record is often modest and untested. It will inevitably change as the case progresses.

[52] Having said that, there is at least one aspect of the Crown’s case that appears exceptionally strong. SBS was arrested in Barrie when he was not permitted to be there. It appears pretty clear, at least from my current vantage point, that he is in serious jeopardy with respect to the breach charges.

[53] In terms of the drug trafficking charge, I am unable to say how compelling the Crown’s case is. I recognize that it can be difficult to prove knowledge and control when there were three individuals in a vehicle in which drugs were found. I do not have sufficient particulars of the Crown’s case to make any kind of prediction about the likelihood of conviction.

[54] The most serious offences facing SBS are the human trafficking and assault charges. He is alleged to have procured three women into providing sexual services for money. He is alleged to have exploited all three women and to have received a financial benefit from the sexual services they provided. And he is alleged to have used the provision of addictive drugs as well as violence or the threat of violence to control them.

[55] The strength of the Crown’s case on these most serious charges is rooted in and dependent upon the credibility and reliability of the complainants.

[56] It would appear that one defence to the allegations may be that the complainants were each drug addicts who, of their own volition, got into sex trade work in order to feed their addictions. On this version of events, SBS was nothing more than a supplier of drugs.

[57] It is impossible for me to predict how AS, JW and SS will come across as witnesses. Their narratives do sound strikingly similar and I suspect that the credibility and reliability of each complainant may be significantly bolstered should the Crown succeed on an application to rely on count-to-count similar act evidence. My preliminary view is that such an application has a good chance of success.

[58] The Crown also has independent evidence obtained through a search of an iPhone they say belongs to SBS. There are a number of text entries, web searches and photographs that tend, in my view, to support at least some of the human trafficking charges. They suggest that SBS was more than just a drug supplier to the three complainants.

[59] It is always difficult to assess the strength of a case which is heavily dependent on the credibility and reliability of the complainants. Again, it must be recognized that the vantage point at a bail hearing is far different than what will be the case at trial. The Crown’s evidence will, of course, be challenged by defence counsel and weaknesses in the Crown’s theory and evidence will be fully explored by the defence. As the case is prepared for trial further developments may strengthen or weaken the Crown’s case. The complainants may come across well or poorly at the preliminary hearing for instance. The evidentiary record will look far different at trial than it does today.

[60] Having said that, my preliminary view is that the Crown has a reasonably compelling case on many of the human trafficking and assault charges.

The Personal Circumstances of SBS

[61] SBS is 27 years old. He is the oldest of seven siblings. His other six siblings continue to reside with their mother in Brampton.

[62] To my knowledge, SBS has no criminal record apart from the convictions he is now imprisoned for. He is presently serving a thirteen month sentence for possessing heroin for the purpose of trafficking in it.

[63] There is some indication in the record that SBS was working at a Canadian Tire warehouse in Brampton while on his prior release, but I otherwise have little information about his educational and employment background.

[64] SBS has one child, a son, born in […], 2019. He will have had limited interaction with the child given that he went into custody in mid-May 2019. His child apparently has regular contact with SBS’s mother and siblings.

The COVID-19 Pandemic

[65] It is necessary that I say something about the COVID-19 pandemic and its impact on the court’s consideration of the secondary ground for detention. It is undoubtedly a part of “all the circumstances” in the changed world we now live in.

[66] There are two ways, in my view, that the pandemic may impact on the secondary ground analysis.

[67] First, the secondary ground is, as I said, about managing the risks posed to public safety and protection. A broad consideration of risk management must take into account the public health risks posed by the novel coronavirus.

[68] SBS is incarcerated at CNCC, which is a congregate living facility. Other examples of congregate living facilities are nursing homes and cruise ships. Congregate living facilities pose pressing issues for both individual and public health. Those issues were set out by Dr. Aaron Orkin in an affidavit he swore on April 7, 2020. His affidavit has been relied on by many bail review applicants in the weeks since it was prepared.

[69] Dr. Orkin is a physician and epidemiologist. He deposed that the central strategy for the population health management of COVID-19 is to “flatten the curve” of infections. The key to flattening the curve is social distancing.

[70] Social distancing is particularly difficult in congregate living facilities. Some of the reasons for that are obvious; others perhaps less so. Dr. Orkin explains that:

(a) Outbreaks in tight spaces happen very quickly and are nearly impossible to control once they happen; (b) People living in congregate living facilities tend to have underlying comorbidities that make them more prone to serious adverse outcomes from infection; (c) Outbreaks in congregate living facilities have the potential to overwhelm the health care system; and, (d) Outbreaks in congregate living facilities serve as “tinder for the fire” in more generalized outbreaks.

[71] The Court of Appeal has accepted that outbreaks in prisons threaten not only inmates and staff at those facilities, but also the public at large. In R. v. Kazman, 2020 ONCA 251, Justice Harvison Young said the following, at para. 18:

As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[72] The upshot of all this is that the flattening the curve strategy supports the release of as many inmates as may be reasonably and safely possible during the course of the pandemic. I do not mean to suggest, by any means, that the doors of correctional facilities should be flung open in a panic. Far from it. I emphasize that thinning prison populations is a sensible part of a broader flatten the curve strategy so long as it can be done reasonably and safely.

[73] Second, there is arguably an incentive to any detainee released on bail to avoid going back into a congregate living environment where physical distancing is impossible. That incentive may reduce, even if slightly, the chance of future breach.

[74] Having said all of that, in my view the impact of the pandemic has little bearing on the determination of this application. SBS is not eligible for parole for two more months. The Province of Ontario has instituted extreme measures in an effort to flatten the curve. Those efforts are beginning to bear fruit. Based on those efforts and the experiences of other countries around the world who have imposed similar measures, I expect that the rate of new infections will be markedly reduced by the time SBS is eligible for release on parole.

[75] In other words, the public health rationale for releasing SBS will no longer be pressing. Moreover, any incentive to not breach his release conditions on the basis of pandemic-related concerns will be extremely low by July, as will any risk posed to SBS individually by reason of his detention.

Conclusions on the Risk to Public Safety and Protection

[76] SBS faces a somewhat questionable Crown case on possession of cocaine for the purposes of trafficking. But he faces a very strong Crown case on charges that he breached a recognizance of bail. And he faces what appears to be a reasonably strong Crown case on serious human trafficking and assault charges. The allegations involve repeated, and at times, extreme violence against vulnerable females. And they include references to firearms.

[77] Of particular concern from my point of view are the circumstances of the alleged breaches of recognizance. The Crown characterized them as flagrant. I agree. I acknowledge that the breaches have not yet been proven to the reasonable doubt standard. That said, SBS was arrested in Barrie on a date when he was not scheduled to be in court.

[78] By being in Barrie, SBS not only breached his recognizance but he put his mother at risk of losing $10,000. His mother works for Peel Transit. She is a single parent. SBS is her oldest child. Her youngest is just 8 years old. It is scandalous that SBS would put his mother at risk of forfeiting such a significant sum of money.

[79] The charges against SBS are very serious. Exploitation. Trafficking in insidious drugs. Violence. The offences, if proven, reflect a person deeply involved in serious and harmful criminality; a person with little regard or empathy for his fellow human beings.

[80] SBS has recently been convicted of possessing heroin for the purposes of trafficking in it. Heroin is a highly addictive and insidious drug. It means misery for those who become addicted to it and for anyone who cares for them. Those who peddle in it, like SBS, care more for the quick and easy money it means to them than they do for the pain they cause to others and to their community.

[81] SBS is a serious threat to the community because he does not value other human life and he is not committed to following the rules. In all the circumstances, I am not satisfied that SBS has met his onus to establish that he will not pose a risk to public safety or protection if released. He has a demonstrated commitment to selfish and hurtful behaviour. He has a lack of respect for court orders and for any rules imposed upon him by his own mother. In my view, there is a substantial likelihood that he will breach the conditions of any release and that he will commit further offences if released.

[82] The inquiry must now focus on whether SBS has a plan of release sufficient to attenuate the court’s concerns. For the following reasons, I am not satisfied that he has.

The Proposed Plan of Release

[83] The proposed plan is for SBS to again live with his family in Brampton under a house arrest condition. It almost goes without saying that a similar plan – living with his family under house arrest – was a profound failure when previously attempted. The suggestion is that things will be different this time. This time the house arrest will not permit SBS to leave the residence for work purposes. This time SBS will be supervised by two siblings and an aunt, rather than his mother. And this time, his movements will be monitored electronically.

[84] The Brampton home where SBS proposes to live is owned by his mother. She has not been proposed as a surety on this occasion. The proposed sibling-sureties have testified that she is nevertheless prepared to have SBS return to live in her home. The proposed sibling-sureties are SBS’s 23 year old sister and 21 year old brother. They occupy the home with four other siblings, ages 19, 16, 14 and 8. No one has made an inquiry as to whether the Children’s Aid Society will have concerns about a man convicted of drug offences and facing serious exploitation charges living in the home with minor children.

[85] Each of the three proposed sureties testified during the bail review hearing. All came across as well-intentioned, earnest individuals who want the best for SBS.

[86] SBS’s aunt struck me as a lovely person. Unfortunately, I consider her to be of little assistance to the proposed plan of supervision. She candidly admitted during cross-examination that she was not familiar with all of the allegations facing SBS. The reason for her lack of familiarity is a choice she made not to read the synopses provided to her. And the reason for that choice is that the allegations are ugly and they do not reflect the person she knows.

[87] The allegations against SBS are ugly. Any surety must know what she or he is getting themselves into. She or he must know what the challenges will be so that they might prepare for and manage them. As I said, the secondary ground is about risk management. One cannot effectively manage risks that one does not know about.

[88] SBS’s siblings are very kind. They both came across as mature, thoughtful people. They have limited savings, but are prepared to pledge all they have in order to support their brother. In the sister’s case that means $1,500. In the brother’s case, $5000. Neither can afford to lose their money, but each believes their brother will listen to them and not put their savings in jeopardy.

[89] The proposed sureties are, in my view, naïve. I think it unlikely that their brother has greater respect for his younger siblings than he does for his mother.

[90] I appreciate that right now both of the proposed sibling-sureties are at home on a full-time basis due to the pandemic. Their impression is that someone will be able to be present and supervising SBS on a 24/7 basis. But their impressions are short-sighted. SBS has not had a preliminary hearing yet. It is not clear when that preliminary hearing will be scheduled or when he will ultimately have a trial date. I can say with some confidence that it will not be a matter of just a few months. The plan of supervision has to be viable not just for the next few weeks or months, but possibly for a year or even longer.

[91] SBS’s sister works at Electrolux as a claims associate. She is working from home at present and says she will have some flexibility to continue to do so even after the pandemic ends. She says she will otherwise call SBS on her breaks. SBS’s brother works full-time in construction and will not be able to work from home when the pandemic ends. SBS’s aunt, who I have already found to be inadequate as a surety, is available mostly on weekends.

[92] To their credit, SBS’s proposed sureties have discussed the supervision of SBS with a view to doing their best to having someone with him at all times. I am not, however, satisfied that that will be possible once there is a return to normal economic activity. There will inevitably be some days when SBS is left on his own. He would have to be trusted to abide by the conditions of his release. Based on his track record, I have no such trust in him.

[93] I am not satisfied that the plan of release is as tight as it needs to be, over the long term, to provide sufficient attenuation of the concerns I have on the secondary ground.

[94] I appreciate that electronic monitoring has been proposed. I was not clear about how it is to be paid for. At any rate, ankle bracelets have limits. They are not designed to prevent violations. As Brown J.A. recently observed in R. v. Stojanovski, 2020 ONCA 285, para. 24:

GPS monitoring reveals where a person is, not what he is doing, and focuses more on gathering evidence of compliance rather than preventing non-compliance: R. v. Fleming, [2015] O.J. No. 4380 (S.C.J.), at para. 18; R. v. Palijan, [2012] O.J. No. 6549 (S.C.J.), at para. 25.

[95] There may be some cases where electronic monitoring can tip the scale in favour of release. Not so here, in my view. I consider SBS to be so untrustworthy that electronic monitoring will not attenuate any concerns that will arise at any moment that he is not being directly supervised by one or more of his sureties. Indeed, I fear it may cause the sureties to be complacent about the need for personal supervision at all times.

[96] In the result, I find that SBS has not met his onus on the secondary ground and, in the result, his continued detention is justified. His application is therefore dismissed.

Boswell J. Released: May 6, 2020.