Court File and Parties

COURT FILE NO.: J-15-4910 DATE: 2020-05-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Mato Josipovic

BEFORE: Justice Skarica

COUNSEL: S. O’Brien and Andrew McLean for Crown/Respondent J. Rosen and S. Smorden for Accused/Applicant

HEARD: April 28, 2020

Endorsement

REASONS FOR RULING ON APPLICATION FOR JUDICIAL INTERIM RELEASE – SECTION 520 OF THE CRIMINAL CODE – ZOOM HEARING DURING COVID-19 PANDEMIC

PUBLICATION BAN – UNTIL COMPLETION OF TRIAL, A PUBLICATION BAN REGARDING THIS PROCEEDING IS IN EFFECT PURSUANT TO S. 517(1) AND S. 522(5) OF THE CRIMINAL CODE

Overview

[1] The accused and his brother were convicted of second-degree murder by a Hamilton jury in December of 2015.

[2] On July 3, 2019, the Ontario Court of Appeal set aside the conviction and ordered a new trial: R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346.

[3] On March 31, 2020, the accused applied to the Court of Appeal for bail pursuant to s. 679(7.1) of the Criminal Code, R.S.C. 1985, c. C-46. On April 1, 2020, the Court of Appeal decided that the accused’s application for bail should be brought in the trial court and not in the Court of Appeal. The endorsement by J.A. Young indicated that the “current COVID pandemic renders bail issue at particular importance”.

[4] On April 19, 2020, the accused brought an application for bail pursuant to s. 522 of the Criminal Code stating at para. 13 of the application:

“The applicant now seeks bail pending his trial, primarily because of the potential lethal impact of the COVID-19 pandemic on him while he is housed in a detention centre, as well as a probable adjournment of his pre-trial motions (set for July 20-24 and August 18-21 of 2020) and his trial (set for October 20, 2020 for six weeks) due to the pandemic”.

Issues

[5] Has the accused satisfied the onus on him that he should be released from custody, after considering (a) the primary, secondary and tertiary grounds outlined in s. 515(10)(c) of the Criminal Code and (b) any factors raised by the COVID-19 pandemic that are relevant to any of those three grounds.

Facts

The Trial and Related Evidence

[6] The accused Mato Josipovic (“Mato”) and his brother John Josipovic (“John”) were convicted by a jury of second-degree murder but were found not guilty of first-degree murder.

[7] It was accepted at trial that one of the two accused shot and killed James Louis Malone (Malone) and both accused were present when Malone was killed: Josipovic, at para. 4.

[8] The Crown at trial argued that the evidence supported a conclusion that the accused Mato was the shooter and passenger in the truck and that John was the driver: Josipovic, at para. 6.

[9] Ultimately, the Crown argued at trial that it did not matter who fired the fatal shot. The Crown argued Malone’s killing was done in furtherance of the brothers’ plan to find and kill him and that both brothers were guilty of first-degree murder: Josipovic, at para. 7.

[10] John testified, at the trial, that he fired all the shots throughout the chase. John denied any plan with Mato to find and kill Malone. John testified that Mato had nothing to do with the killing. John advanced defences of self-defence and provocation: Josipovic, at para. 8.

[11] Mato testified that John had the gun throughout. Mato indicated that he was driving John’s truck and doing his best to get John to stop the pursuit. Mato testified that he saw John knock Malone to the ground, heard a shot and saw that Malone was deceased. Mato denied that there was any plan to kill Malone. Mato denied that he was a party to murder Malone. Mato indicated that he had no involvement in the killing of Malone. Mato testified that he only wanted to go home but could not abandon his brother: Josipovic, at para. 9.

[12] Given the ambiguity in the Crown’s evidence as to who the shooter was, I will proceed with this bail application on the assumption that Mato was the driver of the truck and John was the shooter, as testified to by both brothers at the trial.

[13] Evidence at the trial revealed that Malone was a gang member with a reputation for violence: Josipovic, at paras. 12-13.

[14] A dispute developed between John and Malone over a loan made by John to a member of Malone’s gang. Eventually, Malone demanded a payment of a $9200 tax which John refused to pay: Josipovic, at paras. 14-17.

[15] A week before the homicide, Malone physically assaulted John. John saw no value in going to the police and took defensive measures, including retrieving a shotgun and putting it in his truck: Josipovic, at paras. 16-18.

[16] Mato knew nothing about Malone’s attempt to extort John or Malone’s threats against John and his family. On the night of the homicide, Malone arranged to meet Mato and discuss Malone’s concerns regarding John: Josipovic, at para. 19.

[17] Mato and Malone met at 12.15 a.m. on the night of the homicide. Malone made threats regarding John, and Malone also wanted Mato to pay a tax: Josipovic, at para. 20.

[18] After this meeting, Malone and one other person attacked Mato. Malone stole Mato’s truck: Josipovic, at para. 21.

[19] Mato called John and told John what had just happened. John left his home in Grimsby and drove to Hamilton to meet up with Mato. John had the shotgun with him. It was about 1 a.m.: Josipovic, at paras. 11, 22-23.

[20] The brothers decided to look for Mato’s truck: Josipovic, at para. 24.

[21] As the brothers were driving around, they saw Malone walking his dogs. John drove up to Malone and spoke to him about attacking Mato that night. Malone responded in anger threatening Mato, John and John’s family: Josipovic, at para. 25.

[22] Immediately after Malone’s threat, one of the accused fired a shotgun at Malone, grazing his neck and tearing the collar of his jacket: Josipovic, at para. 26.

[23] A witness, William Cook, had his front door window shattered by the first shotgun blast. Pieces of Malone’s sweatshirt were found on the porch of Cook’s home: see Crown’s factum at para. 17.

[24] A chase then ensued. At times, both accused were in the truck chasing Malone. At other times, one of the accused was on foot and the other was in the truck. Malone was on foot throughout the chase: Josipovic, at para. 26.

[25] Witnesses at the trial described Malone running on Cannon Street while being chased by a man holding a shotgun. Video cameras captured Malone running with John’s truck following behind: see the Crown’s factum at para. 18.

[26] The truck catches up to Malone at the intersection of Britannia Avenue and Kenilworth Avenue. A passenger exits the truck and fires off two or more shots. A surveillance camera captures Malone running across Kenilworth with the truck in hot pursuit: see the Crown’s factum at para 19.

[27] Included in the Crown’s materials is the trial testimony of Jason Cavanagh (“Jason”). Jason observed the chase in the area of Britannia and Kenilworth. A summary of Jason’s evidence in chief, recorded at pages 872-883 of the trial transcript, can be described as follows:

Jason saw two men where the truck was, and the victim was running into a garage parking lot at Kenilworth and Britannia. The victim was running through the parking lot dodging in between vehicles. A shot went off from one of the two people. One man was chasing the guy through the parking lot and the other man ran back to the truck.

The victim continued to run north toward Barton Street. The victim was in the middle of the road and the truck drove toward him. One of the two accused was running beside the truck and then grabbed onto the passenger’s side of the truck so that he could go down the street quickly. It looked like a movie.

The victim was running, and another shot was fired which appeared to strike the victim. The victim’s running was more sluggish. The victim ran down the sidewalk and another shot was fired into the victim’s back.

At page 875 of the transcript, Jason testifies, “From there the truck is coming down the street towards Barton and they’re using the truck to basically block which way he wants to go.” The truck did a U-turn type circle on Hope Street and blocked the victim from running any further.

There was another shot fired from where the last building is on Hope Street and Kenilworth. The victim tried to go to Hope Street, but the truck blocked his way. At page 880 of the transcript, Jason testifies that one of the accused “hit the person with the object that was in their hands and then the kill shot was given”

The time between the victim being struck and being shot at point blank range was 20-30 seconds. The victim, after being struck by the object, was laying on his back on the sidewalk. The shooter approached the victim, stood right above him – 2-3 feet away – and shot the victim with the final shot, killing him.

The driver never left the truck. The shooter got into the truck and the two accused drove calmly away.

[28] In cross-examination, at pages 901-902, Jason testified as follows:

Q. Okay. And again, it’s your evidence here today that there were two men on their feet who were basically the attackers or aggressors or the pursuers and there was one man getting shot at?

A. Yes.

Q. And did you tell this court today that you then saw one man go back to the truck?

A. Yes

Q. And the other man, he never went back to the truck?

A. Well, one man, the driver went back, got in the truck and then the shooter was going back and forth from the truck, holding on to the side of the truck while he’s going down the street chasing him, then running after him. He was back and forth to the truck multiple times.

Q. Okay. This sounds pretty intense. Holding onto the side of the truck, I’m picturing GI Joe type of stuff. Like, this is like the A-Team holding on the side of the truck and – while the truck’s in motion?

A. Yes.

Q. That’s a pretty vivid scene I guess, eh?

A. It was quite the scene to see.

[29] In further cross-examination, at pages 909-910, Jason testified as follows:

Q. And so certainly, from your vantage point, which is about a block away, you certainly don’t know what’s going on in the mind of the guy, for example, the shooter. You can’t imagine what’s going – you don’t know exactly his thought processes, right?

A. Shoot to kill.

Q. Well, you know what, I’ll give you that. I think that at the end of the day that that might be something that – that would be – according to your observations, the way you’ve described it, I can see that you would take away from it that belief. But in terms of, of getting at, at – your belief, I think what you told my friend earlier, is that the guy who was the shooter certainly was intending to shoot and, and to kill the man who was running away, right?

A. Yes. And the truck – the driver of the truck was working together with the shooter in order to corral him where he wanted to go.

[30] A picture of the deceased victim laying on the sidewalk is reproduced at para. 22 of the Crown’s factum. That photo confirms that the victim was shot in the head. It is clear from the trial evidence that the deceased was shot at point blank range and that the final shot caused massive trauma to the deceased’s skull and brain.

[31] At para. 23 of the Crown’s factum, the Crown indicates that six shell waddings were recovered from the crime scene. The Court of Appeal indicates that based on the timing of the 9-1-1 calls, the fatal shot was fired at 1:26 a.m., about three or four minutes after the initial shot was fired. In total six shots were fired at Malone: Josipovic, at para. 32.

[32] The above summary of facts leads powerfully to the conclusion that the shooter intended to kill and deliberately killed Malone. Regarding the driver of the truck, which I am going to assume is Mato, I agree with the Crown’s submission, at para. 25 of its factum, that:

throughout the encounter the truck driver was instrumental in assisting the shooter. The shooter is able to ride in the truck for part of the chase, while Malone can only run. Once the shooter has killed Malone, he immediately returns to the truck and it drives off.

[33] The Crown’s factum indicates that DNA analysis on John’s truck confirmed that blood belonging to Malone was located in several areas in and outside of John’s truck.

[34] Justice Doherty ordered a new trial based on errors in the trial judge’s charge to the jury: Josipovic, at para. 3. The errors consisted basically of a failure to draw a distinction between the legal basis of the shooter’s liability and the aider’s liability: Josipovic, at paras. 48-49. Further, the trial judge failed to articulate that, for an aider to be guilty of murder, the aider must know that the shooter had the requisite intent and the aider must intend to assist the shooter in the homicide: Josipovic, at para. 50. Justice Doherty concluded that the trial judge’s failure to clearly articulate the difference between the mens rea required of the perpetrator and the mens rea required of the aider invited the jury to consider the liability of the two accused as a single unit: Josipovic, at para. 50.

[35] Justice Doherty concluded that the curative proviso could not be applied to the errors he identified. Justice Doherty stated, “[w]hile it is fair to characterize the case against both appellants as formidable, the errors in the trial judge’s instructions are not minor or insignificant”: Josipovic, at para. 75.

COVID-19 Evidence

[36] The Crown filed a document published by Public Health Ontario, entitled: Epidemiologic Summary COVID-19 in Ontario – January 15, 2020 to April 21, 2020. [1] I will refer to this document as the “summary”.

[37] I believe that I can take judicial notice that the province of Ontario had a population of 14.57 million people in 2019.

[38] At page 5 of the summary, the data referred to indicates that as of April 21, 2020, Ontario had 12,245 cases of COVID-19.

[39] Of this infection total, the overall morbidity rate was 5.4 percent. There were a total of 659 deaths as at April 21, 2020. However, by age range, the morbidity rate varies widely. For persons under 40, the morbidity rate is zero percent. In the accused’s age range of 40-59, there have been 36 total deaths for a morbidity rate of 0.9 percent. Death rates rise dramatically for persons over 60 years of age. Especially vulnerable are persons 80 years and over. Of the total of 659 deaths in Ontario, 441 of the deaths are from persons over 80. Persons 80 and over account for 67 percent of the total deaths in Ontario from COVID-19.

[40] The Crown also filed as Exhibit 15 a document entitled, “Response to COVID-19 Information Note” (“Information Note”). This document is authored by the Ministry of the Solicitor General and outlines strategies and impacts regarding COVID-19 on inmates and correctional staff in Ontario’s adult correctional institutions.

[41] The Information Note indicates that as of April 21, 2020, no inmates in the Hamilton-Wentworth Detention Centre (“HWDC”) have tested positive for COVID-19. This is the institution where the accused is currently being held. The Information Note indicates that there has been one positive test for one HWDC staff member. Apparently since the publication of the Information Note, one inmate at the HWDC has tested positive for COVID-19.

[42] The Crown called as a witness Carrie Collier, the Deputy Superintendent of Programs at the HWDC. Ms. Collier is also a registered nurse (“RN”).

[43] Ms. Collier testified that on Friday, April 23, 2020, one inmate tested positive for COVID-19. The source of the infection is unknown.

[44] Ms. Collier testified that all inmates are assessed upon admission to the HWDC. New admissions who are asymptomatic stay in isolation for 14 days and are then released from isolation. New admissions that are symptomatic are kept in the Isolation Unit until cleared.

[45] Regarding the inmate who tested positive for COVID-19 (“positive test inmate”), he had been placed in the mental health unit at level 3-A-left (“3AL”). That inmate had no interaction with other inmates. The test positive inmate was initially admitted to the HWDC on February 2, 2020, and had been shuttled back and forth to St. Joseph’s Hospital in Hamilton several times.

[46] The positive test inmate was kept in the Isolation Unit for 14 days on March 30, 2020. On April 22, 2020, he was returned to 3AL and on April 23, 2020, he was returned to St. Joseph’s Hospital where he was tested before admission. On April 24, 2020, the positive test inmate was placed into isolation. Public Health declared an outbreak based on this one positive test as they were unable to determine where the positive test inmate picked up the virus.

[47] Regarding the accused Mato Josipovic, he resides in 4-B-Dorm (4BD). If any inmates fall ill there, they are isolated. Before any new arrivals are admitted into 4BD, they must first go through the 14-day isolation period.

[48] Ms. Collier admitted in cross-examination that it is difficult for inmates in 4BD to practice social distancing. However, given the precautions taken, (i.e. the staff wear masks, new arrivals are isolated for 14 days before being cleared, the number of persons coming in or out are minimized), it is her opinion that currently the risk potential for inmates contracting COVID-19 is not higher than the general population.

[49] The staff member, who tested positive for COVID-19 in March, (this is the staff member referred to in the Information Note), was a recreation officer who was an asymptomatic carrier. He was subsequently isolated for 14 days.

[50] At the Ontario Correctional Institute (OCI), there was an outbreak of 60 inmates testing positive. OCI is a medium security facility where the inmates mingle and eat together. The movement of inmates at HWDC is significantly more restricted and different from movement of inmates at OCI.

Law

Bail Procedure Where Court of Appeal Orders a New Trial

[51] In R. v. Manasseri, 2017 ONCA 226, Justice Watt outlined the principles governing this bail application, at paras. 37-42:

The Governing Principles

37 The enabling statutory authority is s. 679(7.1) of the Criminal Code, which provides:

Where, with respect to any person, the court of appeal or the Supreme Court of Canada orders a new trial, section 515 or 522, as the case may be, applies to the release or detention of that person pending the new trial or new hearing as though that person were charged with the offence for the first time, except that the powers of a justice under section 515 or of a judge under section 522 are exercised by a judge of the court of appeal.

38 At first light, s. 679(7.1) does three things:

i. it treats an accused for whom a new trial has been ordered as if that person were charged with the same offence for the first time;

ii. it makes the judicial interim release hearing provisions of ss. 515 and 522 applicable to the release/detention determination; and

iii. it assigns the jurisdiction of the justice (s. 515) or judge (s. 522) to conduct the hearing to a judge of the court of appeal.

39 On its face, s. 679(7.1) does not distinguish among the various stages of proceedings that follow a court of appeal's order for a new trial and the commencement of that trial. The phrase "pending the new trial", which I take to mean "while awaiting" or "until" the new trial, is oblivious to procedural steps, like setting a trial date, holding pre-trial conferences, setting schedules for pre-trial motions and the like.

40 Judicial decisions have interpreted the phrase "pending the new trial" to encompass two discrete time periods with implications for the forum in which the application for release is heard and determined. Those time periods are:

i. the time between the order for a new trial and the successful appellant's first appearance in the trial court; and

ii. the time between the first appearance in the trial court and the start of the new trial.

See, R. v. Barbeau (1998), 131 C.C.C. (3d) 350 (C.A. Que.) (Fish J.A., at p. 352; R. v. Ranger (2003), 2003 ONCA 15438, 180 O.A.C. 138 (Ont. C.A.) (Feldman J.A., at para. 9.

41 In the first time period, a judge of the court of appeal has exclusive jurisdiction over release pending a new trial: Barbeau, at p. 352; Ranger, at para. 10; R. v. Vincent, 2008 ONCA 76, [2008] O.J. No. 534 (Ont. C.A. [In Chambers]), (Sharpe J.A.), at para. 7; R. v. Geddes, 2012 MBCA 31, 100 W.C.B. (2d) 817 (Man. C.A. [In Chambers]) (Chartier J.A.), at para. 3. In the second time period, a judge of the court of appeal and a judge of the trial court have concurrent jurisdiction over release pending a new trial: Ranger, at paras. 19, 21; Vincent, at para. 8.

42 Where concurrent jurisdiction exists, court of appeal judges have often declined to hear the application transferred it to the trial court: Barbeau, at p. 352; Ranger, at paras. 27-29; Vincent, at paras. 16-17.

[52] Regarding Mato Josipovic’s bail hearing, Young J.A. on April 1, 2020, indicated that the accused’s application for bail was to be dealt with in the trial court.

[53] Justice Watt lays out the road map of the controlling principles that I am to be guided by, at paras. 82-100 of Manasseri:

The Governing Principles

82 Section 679(7.1) of the Criminal Code requires me to consider and decide the application as if Manasseri were a person charged with second degree murder "for the first time". Section 522 of the Criminal Code governs release of a person charged with an offence listed in s. 469 of the Criminal Code, such as second-degree murder. Anyone charged with a s. 469 offence, according to s. 522, is to be detained in custody unless, offered a reasonable opportunity to do so, he or she shows cause why his or her detention is not justified on any of the grounds described in s. 515(10).

83 The effect of the joint operation of ss. 679(7.1), 522(2) and 515(10) in this case is that Manasseri must show that his detention is not necessary on the secondary ground and not necessary on the tertiary ground as defined in ss. 515(10)(b) and (c).

84 The secondary ground in s. 515(10)(b) focuses on and seeks to ensure against recidivistic conduct on release. The statutory reversal of onus for persons charged with second degree murder means that an accused must show that his or her detention is not necessary:

• for the protection of the public; or

• for the safety of the public

including victims, witnesses and persons under 18. This determination is to be made on the basis of all the circumstances, including any substantial likelihood that the accused will, if released,

• commit a criminal offence; or

• interfere with the administration of justice.

85 Three brief points should be made about the secondary ground.

86 First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct ("commit a criminal offence") or an interference with the administration of justice.

87 Second, in connection with the specified circumstances encompassed by the clause "including any substantial likelihood that the accused will, if released from custody, commit . . . ", the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.

88 Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.

89 The tertiary ground holds that detention is justified if it is necessary to maintain confidence in the administration of justice. Several brief observations about the content and operation of this ground are germane.

90 First, as in the case of the secondary ground, whether detention is or is not necessary on this ground is to be determined by a consideration of all the circumstances, but in particular, the four factors Parliament has marked out for specific consideration in s. 515(10)(c): R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.), at para. 40; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.), at para. 35.

91 Second, as in the case of the secondary ground, the use of the term "including" in relation to the listed factors negates any suggestion that the listed factors are dispositive of an order of detention on the tertiary ground: St-Cloud, at para. 68.

92 Third, to determine whether detention is justified on the tertiary ground, a judge is to make his or her appraisal objectively, through the lens of the four factors Parliament has specified, and with particular focus on those factors: Hall, at para. 41; St-Cloud, at para. 35.

93 Fourth, detention can only be justified on the tertiary ground if the judge, having considered the listed factors and related circumstances, is satisfied that a reasonable member of the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice: Hall, at para. 41; St-Cloud, at para. 35.

94 Fifth, the term "public" in s. 515(10)(c) refers to reasonable members of the public who are properly informed about the philosophy of the legislative provisions; Charter values; and the actual circumstances of the case: Hall, at para. 41; St-Cloud, at para. 74.

95 A "reasonable member of the public" is familiar with the basics of the rule of law in Canada and with the fundamental values of our criminal law, including those protected by the Charter. He or she knows the importance of the presumption of innocence and the right to liberty and that these are fundamental rights guaranteed by our Constitution. The reasonable member of the public also expects, perhaps even more so now, that anyone charged with a crime is entitled to be tried for it within a reasonable time: St-Cloud, at para. 79.

96 A final point before turning to the specific factors requiring consideration under s. 515(10)(c). In Canada, pre-trial release of those charged with crime is the cardinal rule and detention, the exception: St-Cloud, at para. 70; R. c. Morales, 1992 SCC 53, [1992] 3 S.C.R. 711 (S.C.C.), at p. 728. That said, sometimes, as here, the onus of demonstrating release is shifted to an accused who is required to demonstrate that detention is not necessary on the primary, secondary or tertiary ground.

97 One of the factors that a judge is required to consider in gauging the influence of the tertiary ground is the apparent strength of the case for the Crown. This requires consideration of the quality, and to some extent, the quantity of the evidence available to the Crown to prove its case. This assessment must also take cognizance of the defence advanced by the accused: St-Cloud, at paras. 58-59.

98 The second factor — the gravity of the offence — is measured objectively on the basis of the maximum and any minimum sentence permitted or required on conviction: St-Cloud, at para. 60.

99 The third factor — the circumstances surrounding the commission of the offence — involves consideration of the nature of the offence, as for example its violent, heinous or hateful nature; its context, for example domestic violence or gang activity; the involvement of others; the extent of the accused's participation; and the vulnerability of the victim: St-Cloud, at para. 61. The personal circumstances of the accused may also be relevant under the third factor including, in some cases, that the accused's trial will not be held until a much later date: St-Cloud, at para. 71.

100 The final listed factor — liability to a lengthy term of imprisonment on conviction — refers to the range of penalty available upon conviction, including any mandatory minimum: St-Cloud, at paras. 64-65.

COVID-19 Considerations

[54] Bail will not necessarily be granted in any case where COVID-19 is raised as an issue: R. v. Kazman, 2020 ONCA 251, at para. 20.

[55] In R. v. Baidwan, 2020 ONSC 2349, at para. 61, I outlined the factors which are to be considered in assessing the risk posed by COVID-19 to a detained accused:

61 From my analysis of the COVID-19 case law regarding bail reviews and the need to consider the evolving science and collection of data over time regarding this new disease, I suggest that a reviewing justice, when assessing risk to a detained accused, in the context of whether there has been a material change in circumstances due to the COVID-19 pandemic, should consider the following factors:

1. Recent reliable data regarding the general risk, to the Canadian/Ontario/local population, of being infected by COVID-19 and related risk of serious illness/death.

2. The specific risk of an accused due to his/her age and underlying medical conditions.

3. The specific risk of an accused in a particular institution.

4. Any medical evidence particular to an accused's physical and/or mental health.

5. S. 515(10)(b) of the Criminal Code (the secondary ground) requires a justice to consider whether detention is necessary for the protection or safety of the public. During this pandemic, an individual is required to adhere to social distancing and stay at home rules and/or perhaps any rules implemented under quarantine legislation and rules. An accused's personal history regarding complying with previous court orders is particularly relevant in assessing whether the accused would likely adhere to social distancing and stay at home rules. An accused who violates social distancing rules and stay at home rules would not be any safer at large than in an institution where risk is being managed adequately.

6. Any other circumstance deemed relevant, i.e. development of vaccines, cures or technological advances in the testing/treatment of COVID-19.

Application of Law to Facts

General Principles

[56] Section 515(10) of the Criminal Code dictates that detention of an accused person is only justified on three grounds which are usually referred to as the primary ground, secondary ground and tertiary ground.

[57] The onus, in this application, is on the accused to show that his detention is not necessary on the grounds set out in s. 515(10) of the Criminal Code: Manasseri, at para. 83.

Primary Ground

[58] The accused contends he is not a flight risk. He offers a plan that includes two sureties who would sign a recognizance of $100,000, a residence with those two sureties and electronic monitoring. I am satisfied that the accused’s detention is not necessary to ensure his attendance at court. The accused has met his onus that his detention is not required on the primary ground.

Secondary Ground

[59] Justice Ramsay, in R. v. Josipovic, 2013 ONSC 7927 (“Josipovic 2013”), detained the accused pursuant to both the secondary and tertiary grounds.

[60] At paras. 9 and 14, Justice Ramsay refers to an alleged 2011 extortion incident and a 2008 gun incident, concluding that the accused’s detention is necessary on the secondary ground.

[61] Mr. Rosen filed, at this hearing, transcripts, court and police records that appear to undermine Justice Ramsay’s factual findings regarding the 2011 extortion and the 2008 gun incidents: see Exhibits 11-13.

[62] The Crown pointed out that Justice Ramsay conducted a 3-day bail hearing on December 18-20, 2013, and the defence did not file a transcript of those proceedings. Accordingly, I am not able to assess the validity of any evidence that Justice Ramsay considered in arriving at his conclusions.

[63] Given my findings on the tertiary ground, I find that I do not need to come to any definitive conclusions on the secondary ground.

Tertiary Ground

[64] Manasseri, at para. 90, cautions that I am to consider all the circumstances but in particular the four factors Parliament has marked out for specific consideration in s. 515(10)(c) of the Criminal Code.

S. 515(10)(c)(i) – Apparent Strength of Prosecution’s Case

[65] Manasseri indicates, at para. 97, that I am to consider the quality and to some extent the quantity of the evidence available to the Crown to prove its case. I am also to take cognizance of the defence advanced by the accused.

[66] From the material filed in this application by the parties, I can easily conclude that the Crown has a very, very strong case against both Mato Josipovic and John Josipovic.

[67] There is an eyewitness who can testify to events, which can be relied upon to support a powerful inference that (a) the shooter, with intent to kill, deliberately shot the deceased in the head causing fatal injuries, and (b) the shooter was aided by the driver, of John Josipovic’s truck, who assisted the shooter in the chase and blocked off the escape route of the deceased as he was being pursued by the shooter.

[68] There is also forensic evidence, numerous witnesses to different parts of the pursuit (albeit with differing details in many respects), and partial videos of the chase. There is not one shot, but six shots that were fired in a chase that extended into several streets in an urban area. These facts are outlined in detail in my summary and by the Court of Appeal in Josipovic.

[69] Giving the accused the benefit of the doubt and assuming that he is the driver of his brother’s truck, I find that there is overwhelming evidence that he aided his brother in the killing of Malone. Further, there is ample evidence to lead a jury to conclude, beyond a reasonable doubt, that the accused, as an aider, (1) knew that his brother intended to kill Malone and (2) intended to assist his brother in Malone’s killing: Josipovic, at para. 50.

[70] Also available to the jury is the alternative route to murder as outlined by Justice Doherty in paras. 51 and 52 of Josipovic. Justice Doherty indicated at para. 51 that if the jury accepted the Crown theory that the brothers agreed to hunt down and kill Malone, and Malone was killed in furtherance of that plan, both brothers would be participants in the murder, regardless of who fired the shot. John Cavanagh’s evidence, as previously described, in combination with the other evidence reviewed, is reasonably capable of supporting that type of conclusion.

[71] Mato Josipovic’s evidence at the trial was that he did not participate in the killing and throughout the events which culminated in Malone’s death, he only wanted to go home. I am cognizant of the caution in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 58, that matters of credibility are to be analyzed at trial and not at the bail stage. St-Cloud however, also requires me to consider the impact of any defence in analyzing the strength of the Crown’s case: St-Cloud, at para. 59.

[72] In brief, the Crown’s case consists of the following provable facts: (a) the shooter fired six shots at an unarmed man over three or four minutes, (b) the shooter was assisted in the pursuit of the deceased by the driver of the truck which followed the fleeing victim over several minutes, (c) the truck ultimately was able to cut off the fleeing victim’s escape route and (d) the chase engaged in by the shooter and the truck lasted 3-4 minutes over a variety of city streets and the accused could have easily broken off the chase at any time. I find that Mato’s explanation of how and why he was at the murder scene is not consistent with the Crown’s evidence flowing from a variety of sources.

[73] Accordingly, given the evidence before me at this application, Mato’s explanation is not consistent with a variety of provable facts and, in my opinion, the accused’s explanation given at the first trial would not raise a reasonable doubt unless the Crown’s case has diminished considerably. There is no evidence before me that the Crown’s case has weakened over time. I conclude that the Crown has an overwhelming case against the accused. I am fortified in this assessment by Justice Doherty’s conclusion at para. 75 of Josipovic. Justice Doherty concluded, “it is fair to characterize the case against both appellants as formidable”. Justices Hourigan and Young agreed with Justice Doherty’s decision, without dissent: Josipovic, at para. 77.

[74] Justice Ramsay, after a 3-day bail hearing in December 2013 concluded, “[i]t is more than just a strong case on a serious charge”.

[75] Accordingly, I am now the fifth justice to arrive at the conclusion that the Crown has a very, very strong case against the accused.

S. 515(10)(c)(ii) – Gravity of the Offence

[76] This is a case where there appears to be overwhelming evidence that the shooter deliberately and with intent to kill repeatedly shot at an unarmed victim who was attempting to run away from the attack.

[77] The victim was not shot at just once but six times. According to the witness John Cavanagh, at pages 880-883 of the trial transcript, the victim, after being struck by the butt of the rifle, was laying prone on the sidewalk. Twenty to thirty seconds later, the shooter stood right above Malone and fired a “kill” shot into the victim from point blank range of 2-3 feet.

[78] This was an execution and a deliberate killing done after a pursuit with several shots blasted on the streets of Hamilton. If this scenario does not describe an extremely grave offence, I do not know what would.

[79] As indicated in Manasseri, at para. 98, gravity is measured objectively, on the basis of maximum and minimum sentences required on conviction. S. 745(c) of the Criminal Code dictates that the penalty for second degree murder is life imprisonment with a minimum parole eligibility period of 10 years up to a maximum of 25 years.

S. 515(10)(c)(iii) – The Circumstances of the Offence, Including Whether a Firearm Was Used

[80] The shooter fired at the victim a total of six times. The final shot was fired while the shooter was standing over the victim – a particularly heinous act. The first shot grazed the victim’s collar and struck a doorway with people inside a residence.

[81] All six shots were fired in an urban area with the potential of serious injury/death to innocent bystanders. As Justice Ramsay indicated at para. 15 of Josipovic 2013, this was a “bold, brutal and public” crime that endangered bystanders with gunshots.

[82] The accused’s pre-trial motions are scheduled to take place in July and August of 2020 with the trial to take place in October of 2020. The accused argues that the COVID-19 situation might require an adjournment, but that is uncertain at this time. At the present time, the accused’s pre-trials and trial are still scheduled to take place within the next 6 months.

[83] If the accused’s court proceedings do get adjourned and are to proceed at a much later date, that is a factor that could be considered at a future bail application: Manasseri, at para. 99; St-Cloud, at para. 71.

[84] Should the accused’s court proceedings get adjourned until a much later date, in my opinion, the principles outlined in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, would come into play.

[85] Jordan indicates that if the total delay to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable, and a stay will follow. The Crown may rebut this presumption by showing the delay is reasonable because of the presence of exceptional circumstances: Jordan, at paras. 47, 68.

[86] The Crown would, presumably, argue, on a Jordan application, that COVID-19 is an exceptional circumstance. The Crown, in this bail application, brought forth credible evidence that the Ontario Solicitor General has, despite significant challenges, been able to keep the accused safe while he is housed in the HWDC during the COVID-19 pandemic. This evidence also has the effect of weakening Crown arguments that the COVID-19 pandemic is automatically an exceptional circumstance in the Jordan context.

[87] As they say, what is sauce for the goose is sauce for the gander. The Crown can’t have it both ways. If the Solicitor General can keep the accused safe at the HWDC in the face of daunting challenges, then there is a reasonable argument to be made that the Attorney General of Ontario should be able to provide judicial participants a safe forum in less challenging circumstances.

[88] Jordan indicates that the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So must the justice system: Jordan, at para. 75.

[89] Jordan indicates that “any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted” from the total delay. In other words, “it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional circumstances”: Jordan, at para. 75.

[90] Jordan makes it clear that “all participants must work in concert to achieve speedier trials”: Jordan, at para. 116.

[91] The bottom line is that, as of now, the pre-trial motions and trial are still scheduled to proceed, and this is a factor that does not materially assist the accused in his bail application at the present time. However, should the pre-trial motions and/or trial not proceed as scheduled, then, in my opinion, the Jordan factors, as outlined above, would have to be considered in the context of “the circumstances of the commission of the offence”.

S. 515(10)(c)(iv) – Potential for Lengthy Term of Imprisonment

[92] This factor is to be assessed subjectively: St-Cloud at paras. 62-65. The accused is charged with second degree murder. Along with treason, murder is the most serious offence in the Criminal Code.

[93] Both first- and second-degree murder are punishable by life imprisonment. The difference in punishment between the categories of murder deal with periods of parole eligibility.

[94] Section 745(a) of the Criminal Code provides that first-degree murder is punishable by life imprisonment without eligibility for parole for 25 years. Section 745(c) provides that a conviction for second degree murder is also punishable by life imprisonment without eligibility for parole from at least 10 to a maximum of 25 years.

S. 515(10)(c) – Consideration of All Circumstances – COVID-19 Factors

[95] There are pre-trials currently scheduled for July-August of 2020 with a jury trial scheduled for October of 2020. It is uncertain at this time as to exactly how the COVID-19 situation will impact these scheduled dates.

[96] Regarding risk to the accused of continued detention due to the COVID-19 pandemic, I propose to apply the risk factors identified in Baidwan, at para. 61 of that decision:

1. General risk to Ontario population having regard to most recent data – According to the summary from Public Health Ontario, previously referred to, as at April 21, 2020, there were 12,245 confirmed cases of COVID-19 in Ontario out of a population of 14.57 million people. There were a total of 659 deaths as at April 21, 2020. 441 deaths, or approximately two thirds of these deaths, involved persons 80 or over.

For persons under 40, the morbidity rate is approximately zero percent. In the accused’s age range of 40-59, there have been a total of 36 deaths for a morbidity rate of 0.9 percent. In other words, persons in the accused’s age range have over a 99 percent survival rate even if infected.

2. Specific risks to accused – The accused’s date of birth is January 16, 1966. He is 54 years of age. He has been incarcerated since November 18, 2013.

At paras. 24-25 of his affidavit, Mato Josipovic indicates that he has medical problems including dizziness, ringing in the ears, loss of memory, and migraine headaches. The accused indicates he is also pre-Type II diabetic and “may” have early symptoms of heart disease. He is awaiting the results of blood tests. He is afraid that a COVID-19 infection will prove fatal due to his poor state of health and age.

Regarding age, the summary indicates that even if infected, an individual that is 54 years old (the accused’s age) is in the age range of 40-59 years and persons in that age range have a better than 99 percent of survival.

Regarding the accused’s state of health, there is no supporting medical/institutional information as to the accused’s state of health and complaints.

3. Specific risks in institution – There has been one inmate at the HWDC who has tested positive for COVID-19. The evidence of Carrie Collier, a RN and Deputy Superintendent at HWDC, is that the positive test inmate was basically isolated from the other inmates at HWDC.

At para. 27 of the accused’s affidavit, the accused indicates that social distancing in his dormitory range is impossible. Ms. Collier admitted that physical distancing is difficult at the accused’s range. Ms. Collier’s evidence was that, given the variety of preventative measures taken by HWDC to prevent the spread of COVID-19, the potential risk to inmates of contracting COVID-19 is not higher than in the general population. This evidence was not seriously undermined in cross-examination.

4. Medical Evidence – The accused presented no medical evidence. Accordingly, there is no medical evidence that the health problems he complains of would make him more susceptible to serious consequences from an infection from the virus.

5. Violation of Court Orders – This is not a factor in the accused’s case.

6. Other relevant factors – There are no other relevant factors.

Conclusion Regarding COVID-19 Risk to the Accused

[97] According to recent data in the summary, the confirmed number of people infected with COVID-19 in Ontario is still a small proportion of the overall population. According to the summary, at pages 2-3, the number of confirmed cases as at April 21, 2020, is declining from a peak reached in mid-April.

[98] Further, according to the data, the accused, being in the 40-59 age range, even if infected, would have over a 99 percent chance of survival. The accused complains of health problems but there is no medical evidence before me of any increased susceptibility to a COVID-19 infection.

[99] According to Ms. Collier, the HWDC has undertaken several significant measures to ensure that inmates are at no greater risk of COVID-19 infections than persons at large in the general population.

[100] In my opinion, the accused has not established that the COVID-19 pandemic has a potential lethal impact on him while he is detained at the HWDC.

[101] Regarding the adjournment of the pre-trial motions or the trial, that has not occurred at this time and the possibility of adjournments, while real, is uncertain at this time.

Conclusion Regarding Tertiary Ground

[102] Justice Ramsay, after a 3-day bail hearing in December 2013 concluded at paras. 15-16 of Josipovic 2013:

I need not say much…about the tertiary ground. Considering the DNA evidence in conjunction with the bold, brutal and public nature of the crime, the endangerment of bystanders by gunshots, it seems to me that this is one of the relatively rare cases in which the detention is also necessary to maintain confidence in the administration of justice. It is more than just a strong case on a serious charge.

The application for bail is denied.

[103] In Manasseri, Justice Watt outlined what comprises a reasonable member of the public at paras. 94-95. Keeping those factors in mind, pursuant to Manasseri at para. 93, I have asked myself: Regarding the tertiary ground and having considered the listed factors and related circumstances, am I satisfied that a denial of release is necessary to maintain confidence in the administration of justice?

[104] All the circumstances include the fact that this case involves a chase of an unarmed man – Malone – by two men and a truck. One of the men was armed with a firearm. Malone was chased through the urban streets of Hamilton. Six shotgun blasts were fired at Malone. There was collateral damage to at least one home and innocent bystanders were placed at risk of serious bodily harm or death.

[105] Malone’s escape was cut off by the driver of the truck and the shooter was then able to strike Malone down with the rifle butt. Malone was laying on the ground unarmed and unable to defend himself. Malone was then shot in the head at point blank range by the shooter who was standing over him.

[106] This was a public and bold execution. The case against the accused has been assessed as either “more than a strong case” or “formidable” by four other experienced justices who have considered the circumstances before this application. I agree with their assessment as to the strength of the Crown’s case.

[107] Accordingly, I agree with the Crown’s submission that this is exactly the type of crime and circumstances where pre-trial detention is necessary to maintain confidence in the administration of justice.

Conclusion

[108] The accused is ordered detained pursuant to the tertiary ground as outlined in s. 515(10)(c) of the Criminal Code.

Order

[109] The accused Mato Josipovic’s application for bail pending a new trial is denied. The non-communication orders made by the justice of the peace, as described by Justice Ramsay’s order of December 20, 2013, at para. 16, continues to stand.

Skarica J.

DATE: May 5, 2020

Footnotes

[1] Ontario Agency for Health Protection and Promotion (Public Health Ontario). Epidemiologic summary: COVID-19 in Ontario – January 15, 2020 to April 21, 2020. Toronto, ON: Queen’s Printer for Ontario; 2020.