Court File and Parties

Newmarket Court File No.: CR-18-9109-00BR Date: 2020-05-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Andre Tully, Defendant/Applicant

Counsel: T. Hamilton, for the Crown N. Gorham, for the Defendant/Applicant

Heard: April 27, 2020

Before: Dawe J.

[1] Andre Tully was arrested in November 2018 and faces a number of drug and gun charges. He has multiple prior convictions for similar offences. Mr. Tully did not seek bail following his arrest and has been in custody for almost 18 months. His jury trial in this Court is scheduled for this fall, with pre-trial motions set to be argued in July, but there is now a strong likelihood that this schedule will be disrupted by the COVID-19 public health crisis and that his motions and/or trial will be delayed.

[2] Mr. Tully applies to this Court for an order releasing him on a strict surety bail with house arrest and electronic monitoring. Since the COVID-19 pandemic has led to the suspension of in-court hearings, Mr. Tully’s application was conducted by teleconference on April 27, 2020. He did not personally participate in the teleconference but was represented by counsel, Mr. Gorham. At the conclusion of the hearing I reserved my decision.

I. Bail jurisdiction

[3] It is common ground that Mr. Tully has not had a bail hearing since his arrest in early November 2018. Persons charged with non-s. 469 Criminal Code offences ordinarily have a bail hearing in the Ontario Court of Justice pursuant to s. 515 of the Code, the outcome of which can then be reviewed in this Court pursuant to ss. 520 or 521. However, s. 525 of the Code also provides for the automatic review of the detention of persons who have been in custody for 90 days, and a review under this section is available to detainees “who, for whatever reason, do not contest their initial detention”. [1] For this reason, Mr. Gorham has framed Mr. Tully’s bail application to this Court as an application under s. 525. He advised me that he took this approach at the suggestion of senior Newmarket Crown counsel (not Mr. Hamilton).

[4] However, there are some significant problems with conceptualizing Mr. Tully’s application for bail as a s. 525 detention review. First, s. 525 reviews are automatic and do not require the detainee to take any action, whereas in this case it is Mr. Tully who is actively applying to be released. Second, Mr. Tully’s right to have his detention automatically reviewed crystallized more than a year ago, in early February 2019. In R. v. Myers, 2019 SCC 18, the Supreme Court of Canada emphasized that s. 525 reviews can only be postponed past 90 days “in limited circumstances” and “in a manner that safeguards and is consistent with the right of the accused to a prompt and thorough review of his or her detention when the 90-day mark is reached”. [2] Third, while my access to the record of what happened at Mr. Tully’s previous court appearances is limited by the COVID-19 closure of the court offices, Mr. Hamilton advised me that the information in the Crown’s file indicated that Mr. Tully ostensibly waived his right to a s. 525 detention review in April 2019, which was more than a year ago. Finally, it is uncertain whether a s. 525 review can be conducted in the absence of the detainee.

[5] For all of these reasons, I do not think Mr. Tully’s bail application can properly be characterized as a s. 525 detention review. It is being brought on his own application almost a year and a half after he was first detained and more than a year after he apparently waived his right to a s. 525 hearing. In my view it would strain the bounds of legal fiction to retcon his April 2019 waiver into a request for an adjournment, particularly in view of the limits placed by the Supreme Court of Canada in R. v. Myers, 2019 SCC 18 on the length and purpose of adjournments in s. 525 review matters.

[6] If s. 525 is unavailable, this raises a real concern about whether Mr. Tully has come to the right court: see R. v. Hudson, 2011 ONSC 5176; R. v. Watts, 2014 ONSC 6246; G. Trotter, The Law of Bail in Canada, Chapter 4.2(b). In R. v. Watts, 2014 ONSC 6246, C.M. Speyer J. held (at para. 25):

[I]t is the function of the Ontario Court of Justice to conduct a bail hearing, in the first instance, where no determination of detention or release has previously been made …. It is the function of the Superior Court to review a detention or release order. When there is no record to review, and the accused is seeking release for the first time, as in the case at bar, the proper practice is to remit the case to the Ontario Court of Justice for a bail hearing.

[7] However, for a number of reasons I did not think that remitting Mr. Tully’s application for bail to the Ontario Court of Justice would be in the interests of justice. The Crown had actively encouraged him to apply to this Court rather than the Ontario Court of Justice, counsel were both ready to proceed, and the proposed sureties had arranged to be available to testify by teleconference. Moreover, the COVID-19 court shutdown made it impossible to determine exactly what had happened when Mr. Tully had been brought before a justice following his arrest, and whether he had consented to a detention order or whether his bail hearing had simply been adjourned sine die. This distinction is critical for jurisdictional purposes, since as Trotter J. (as he then was) noted in R. v. Hudson, 2011 ONSC 5176 at para. 22, “where an accused person has already consented to his or her detention, but wishes to apply for bail … [t]he only means of setting aside the detention order is by application to this Court” pursuant to s. 520 of the Code. Accordingly, I was concerned that if I remitted Mr. Tully’s case to the Ontario Court of Justice it might well turn out that the Ontario Court of Justice would have no jurisdiction and his application would then have to come back to this Court. Scheduling multiple hearings in different levels of court during the COVID-19 pandemic is no easy matter.

[8] With the agreement of both counsel I decided to proceed with this hearing, concluding that I could claim jurisdiction to decide whether Mr. Tully should be released on one or the other of two alternate bases. If Mr. Tully did previously consent to a detention order in the Ontario Court of Justice, his application to this Court can properly be characterized as a s. 520 bail review: R. v. Hudson, 2011 ONSC 5176. A s. 520 bail review in these circumstances would effectively require a de novo bail hearing because there has never been any considered decision about his releasability.

[9] On the other hand, if no formal detention order was ever made in the Ontario Court of Justice, I am prepared in the circumstances here to exercise my ex officio powers as a justice of the peace under s. 5 of the Justices of the Peace Act and to conduct a bail hearing under s. 515 of the Code. As Justice Trotter notes in his leading text on bail, this authority “has been used sparingly” [3] by Superior Court judges, for good reason. In R. v. LaFontaine (1973), 13 C.C.C. (2d) 316 at p. 317 (Ont. H.C.), Zuber J. (as he then was) noted that this power should not be used “save in the most unusual situation”. In my view, Mr. Tully’s situation – an application brought during an unprecedented public health crisis, where the Crown had previously agreed to have the matter proceed in this Court – qualifies as “most unusual”.

II. Facts and procedural history

[10] Mr. Tully is now 35 years old. His prior criminal record is not extraordinarily lengthy, but is serious. It consists of the following entries:

(i) Convictions in 2006 for offences arising from the possession of a loaded handgun and the possession of drugs for the purpose of trafficking, for which he received an effective net sentence of three years imprisonment (reduced to one year after he was credited for the equivalent of two years pre-sentence custody); (ii) Convictions in 2009 for offences relating to the possession of a loaded handgun and the possession of drugs for the purpose of trafficking, for which he received an effective net sentence of 40 months imprisonment (reduced to 13½ months after he was credited for the equivalent of 26½ months pre-sentence custody); and (iii) Convictions in 2014 for offences relating to the possession of a loaded handgun and the possession of drugs for the purpose of trafficking, for which he received an effective net sentence of 9 years imprisonment (reduced to 4 years and 10 months after he was credited for the equivalent of 50 months pre-sentence custody).

The last two sets of convictions included convictions for breaching s. 109 weapons prohibition orders.

[11] The charges Mr. Tully currently faces also involve allegations that he possessed drugs for the purpose of trafficking along with a loaded handgun and ammunition. On the evening of November 3, 2018, two York Regional Police officers, Dets. Cooke and Ford, were on patrol in the “Entertainment District” of Vaughan when they saw a car pull into a parking lot and decided to conduct a Highway Traffic Act stop to check the driver’s sobriety. Mr. Tully was driving the car, which was a rental, and a woman named Mariaka Harris was in the front passenger seat. Det. Cooke approached the driver’s side window while Det. Ford went to the front passenger’s window, and when the windows were rolled down both officers smelt the odour of burnt marijuana. Ms. Harris said that she had been smoking marijuana and had some in the car, which led Det. Ford to advise her “that under the new Cannabis Act we had the authority to search the car and occupants”. Meanwhile, Det. Cooke noticed a bag between Mr. Tully’s legs and thought he saw the butt of a handgun in the bag. He told Mr. Tully not to touch the bag, at which point Mr. Tully drove off at high speed.

[12] A high-speed chase ensued involving several police cruisers, during which Mr. Tully’s car was rammed several times by police cruisers and at several points drove onto the sidewalk. Eventually it drove off the road and came to a stop, and one officer saw something being thrown from the driver’s side. After Mr. Tully and his passenger were arrested the police found a loaded Glock handgun on the grass near the car. They found another loaded magazine in the centre console, along with 23 grams of heroin. Four cellphones, a digital scale and over $8,000 in cash were found elsewhere in the car.

III. The proposed bail plan

[13] Mr. Tully proposes that he be released on a house arrest bail with three sureties – his mother Choice Clunie, his common-law stepfather Dennis Chevers, and his cousin Danardo Jones, all of whom testified at the hearing by teleconference – supplemented by electronic GPS monitoring of his movements.

[14] Specifically, it is proposed that Mr. Tully would live with his mother and Mr. Chevers at their home in Brampton under strict house arrest, and that at least one of them would remain at the house with him at all times. The proposed house arrest conditions would only permit Mr. Tully to leave the house for medical emergencies and to attend court, and would require him to be accompanied by one of his sureties on these occasions. Ms. Clunie and Mr. Chevers are both employed, but she is presently furloughed due to the COVID-19 crisis, and if her son is released she proposes to leave her job so that she can remain at home to supervise him at times when Mr. Chevers is at work. Ms. Clunie and Mr. Chevers testified that he earns enough money to support the family for as long as it remains necessary for her to remain off work.

[15] Mr. Jones, who is a lawyer and lives in Toronto, would play a supporting role by pledging a substantial portion of his savings and maintaining regular phone contact with Mr. Tully and with the other sureties to ensure that Mr. Tully is abiding by his conditions. The supervision provided by the sureties would then be supplemented by electronic GPS monitoring provided by Recovery Sciences Corp.

[16] Ms. Clunie testified that she acted as Mr. Tully’s surety in around 2006, and that there were no incidents of non-compliance. Although Mr. Tully has convictions for failing to comply with weapons prohibition orders, his criminal record does not include any prior bail breach convictions.

[17] Although the funds the sureties are prepared to pledge are relatively modest, they all testified that they represent substantial amounts for them. Mr. Jones explained that he is the single parent of two children and is also a part-time Ph.D. student was well as working for Legal Aid Ontario as duty counsel.

IV. Should Mr. Tully be granted bail?

[18] Both counsel agree that regardless of whether these proceedings are characterized as a s. 520 bail review or as a s. 515 bail hearing, the question I must decide is the same: namely, whether the test for releasing Mr. Tully under s. 515(10) is met. Since the charges Mr. Tully faces include a number of drug and firearm offences, it is his onus to establish that his detention in custody is not justified (Criminal Code, s. 515(6)(a)(viii) and (d)).

[19] Mr. Tully is a long-time Ontario resident with close family ties to the province and no history of failing to attend court, and Mr. Hamilton fairly acknowledges that the Crown is not seeking his detention on the primary ground. However, the Crown opposes Mr. Tully’s release on both the secondary and tertiary grounds (s. 515(10)(b) and (c)).

A. The secondary ground

[20] Section 515(10)(b) provides that pre-trial detention will be justified when it is:

… necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice;

Since this is a reverse onus situation, it is Mr. Tully’s burden to show that his detention is not necessary on this basis.

[21] In R. v. Manasseri, 2017 ONCA 226, Watt J.A. explained (at paras. 86-88):

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.

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.

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.

[22] In any case where the accused is charged with serious offences, particularly offences involving firearms, there will be obvious concerns about public safety and the protection of the public if he or she is released. These concerns are heightened in the case at bar, where Mr. Tully is not only charged with possessing a loaded handgun, but was also arrested after a high-speed vehicular police chase in a public area. As Mr. Gorham frankly acknowledges, the secondary ground concerns associated with releasing Mr. Tully are obvious and substantial.

[23] However, the relevant question is not whether secondary ground concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors. Mr. Tully does not have to show that he is unlikely to ever reoffend under any circumstances or for all time, but only to establish that the risk of his reoffending in a way that would jeopardize public safety can be reduced to tolerable levels during the time he will on bail by the restrictions and supervision he will be under as provided in the bail order.

[24] I am persuaded that Mr. Tully has met this onus. His proposed bail plan contains a number of interlocking and mutually reinforcing safeguards, in which the potential weaknesses of each of the release plan’s component parts is strengthened by a different element, such that the plan as a whole is stronger than the sum of its parts considered on their own. Ms. Clunie and Mr. Chevers both struck me as responsible people who are likely to take their duties as sureties seriously. If they are tempted to give Mr. Tully more leeway than he is permitted under the terms of the release order, or to overlook acts of non-compliance, this temptation will be reduced by the presence of Mr. Jones as a remote monitor. Mr. Jones strongly impressed me as someone who will not let his familial ties to his cousin Mr. Tully and his aunt Ms. Clunie compromise his professional integrity as a lawyer and his sense of obligation to the court. I accept his evidence that he values his reputation and is “not prepared to sacrifice it for any foolishness”, and I believe him when he says that he would not hesitate to pull Mr. Tully’s bail if he thinks his cousin is breaching its terms or that his fellow sureties are providing inadequate supervision.

[25] The electronic monitoring component of the plan provides a further layer of protection, in that Mr. Tully and his sureties will know that any breach by Mr. Tully of the house arrest term of the release order will almost inevitably be detected. As Harris J. explained in R. v. Rajan, 2020 ONSC 2118 at para. 32:

In some instances, electronic monitoring can be a valuable tool on bail. Monitoring can function as a specific deterrent on an individual released on bail. In the context of sentencing, the criminal law places reliance on the efficacy of specific deterrence. There is no reason not to extend the philosophy underlying specific deterrence to bail, albeit with some modifications. An accused person subject to electronic monitoring will know that not only will they be apprehended if they violate their house arrest but that the GPS device will produce cogent evidence to assist with their prosecution. To most, this will act as a real deterrent.

[26] Mr. Hamilton argues that Ms. Clunie and Mr. Chevers are well-meaning but naïve, insofar as they both indicated in their testimony that they believe that Mr. Tully may have finally matured and will now be ready to change the path his life has been on up until now. While I agree with Mr. Hamilton that this may represent the triumph of hope over experience, I do not see the success of the proposed bail plan as depending significantly on Mr. Tully having acquired a new-found willingness to respect the law or court orders, or on assuming that family feeling will cause him not to do anything that would lead his mother and stepfather and his cousin and childhood friend to lose their savings. Rather, the bail plan will work if Mr. Tully realizes that if he tries to return to his old life of street-level drug dealing, he will almost certainly be detected and caught. While Mr. Tully has a long track record of committing similar crimes, his history does not suggest that he is prone to acting impulsively or irrationally. Rather, he appears to be someone who repeatedly returns to street-level drug dealing because it is highly profitable, and because he thinks he can get away with it. The proposed bail plan changes the calculus by making it overwhelmingly likely that if he goes back out on the street to sell drugs while on bail he will be detected and apprehended. I am satisfied that this reduces the risk of his reoffending while on bail to the point where it can no longer be said to be “substantially likely” that he will commit further criminal offences that jeopardize public safety, such that his continued detention is “necessary for the protection of the public.”

B. The tertiary ground

[27] Section 515(10)(c) of the Criminal Code provides for pre-trial detention of a defendant when this:

… is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

In a reverse onus situation, as in this case, the defendant must show that his or her detention is not necessary on this basis.

[28] In any case involving firearm charges at least three of these four statutory factors will necessarily weigh in favour of detention: firearm offences are inherently “grave”; they by definition involve the use of a firearm; and they generally attract substantial terms of imprisonment on conviction even when there is no longer an operational mandatory minimum sentence. The existence of a firearms charge also means that the onus will be reversed and that it will be the defendant who must justify his or her release (see s. 515(6)(a)(viii)).

[29] However, as Wagner J. (as he then was) explained in R. v. St-Cloud, 2015 SCC 27 at paras. 68-71, s. 515 does not create a legal regime in which everyone charged with a gun offence is automatically detained under the tertiary ground unless he or she can show that the Crown’s case is weak. Rather, courts must consider all the relevant circumstances that bear on whether the public’s confidence in the administration of justice requires the accused to be detained before his or her trial.

[30] The Crown’s case against Mr. Tully seems strong on its face, in that it appears that drugs and ammunition were found in the car near where he had been sitting and that the handgun was found nearby, after an officer observed Mr. Tully throwing something out the car window at the end of the police chase. Mr. Gorham indicated that Mr. Tully’s defence at trial is likely to be Charter-based, and that he has filed a notice of constitutional question challenging the warrantless search powers of the federal Cannabis Act, SC 2018, ss. 86(1) and (2) and the Ontario Cannabis Control Act, SO 2017, c. 26, s. 12(3).

[31] As Mr. Hamilton points out, it is in dispute whether the police ever actually used any of these warrantless search powers in this case, or whether the initial HTA stop of Mr. Tully’s vehicle morphed directly into a common law criminal investigative detention and/or Criminal Code arrest after Det. Cooke saw what he thought was the butt of a gun in Mr. Tully’s bag. However, Det. Cooke’s notes indicate that his partner, Det. Ford, made comments to Ms. Harris that suggested that the police intended to conduct a warrantless search of the car for cannabis, although Mr. Tully then drove away before this search could actually be carried out. The question of whether Det. Ford’s comment effectively changed the legal character of the detention is an issue of mixed fact and law that will be for the trial judge to determine. However, I am satisfied that the point is at least arguable and that Mr. Tully will be able to raise a triable issue in his defence. While the Crown’s case against him can still be fairly characterized as strong, this is not a situation where a conviction at trial appears to be a near-certainty.

[32] Although all four of the statutory factors in s. 515(10)(c) still in my view weigh in favour of detention, there are also two significant circumstances that I consider to weigh in favour of release. The first is the strength of the bail plan. As Trotter J. (as he then was) explained in R. v. Dang, 2015 ONSC 4254 at para. 58, the strength of the proposed release plan is a relevant consideration in the tertiary ground analysis:

A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). 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. I see nothing wrong with this reality being reflected in s. 515(10)(c).

In my view, the fact that Mr. Tully will, if released, be subject to extremely strict house arrest conditions and be under the constant direct supervision of his sureties while also subjected to electronic monitoring are all factors that would strongly influence the perceptions of “a reasonable person who is properly informed about the philosophy of the legislative provisions”. [4]

[33] The second major factor that I see as weighing in favour of release under the tertiary ground is the fact that Mr. Tully brings this application during the COVID-19 pandemic. A growing number of my colleagues have concluded that this unprecedented public health crisis is a significant factor to be considered in the tertiary ground analysis, [5] although this view has not been universally adopted. [6] As Harris J. stated in R. v. Rajan, 2020 ONSC 2118 at paras. 68-70:

While the tertiary ground reasons for detention are based on a visceral reaction against release – a somewhat abstract notion premised on gauging the reasonable views of the public – the threat of COVID-19 in a jail setting is based on cold, hard scientific reality.

The two must be counterbalanced against each other. The traditional grounds for the imposition of tertiary ground detention expressed in R. v. Hall, 2002 SCC 64, R. v. Mordue, 223 C.C.C. (3d) 407 (Ont. C.A.) and R. v. St-Cloud, 2015 SCC 27 [7] … continue to militate towards detention. However, the threat of the virus pulls strongly in the other direction, towards release. In the end, the threat, if not the actuality of COVID-19, goes a long way to cancelling out the traditional basis for tertiary ground detention.

The Canadian public understands the momentous nature of this crisis and would be greatly concerned for the health of inmates and staff in institutional settings. In the public’s mind, the real and tangible threat of contracting the virus may well supplant the otherwise negative reaction to the release of an accused person. The public is not short-sighted but would look at the long-term reputation of the administration of justice. In the face of the pandemic, bail release, in the absence of primary or secondary ground concerns, may well not shake the confidence of the public.

[34] The COVID-19 pandemic bears on the tertiary ground analysis in at least three different ways. First, as Copeland J. noted in R. v. J.S., 2020 ONSC 1710 at para. 18, “the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.”

[35] Second, the strong likelihood that the closing of the courts will lead to trial delays is also a relevant consideration. As Spies J. noted in R. v. Ali, 2020 ONSC 2374, at para. 88, “[t]he length of time that [the defendant] will be incarcerated if he is detained pending his trial is also a factor when considering the tertiary ground”.

[36] Third, the impact of detaining or releasing a defendant on the other people who will have to remain in the correctional system, both as inmates and staff, is a further relevant consideration. As Stribopoulos J. noted in R. v. Williams, 2020 ONSC 2237, at para. 124, “given the broader public health implications, it is very much in the community's best interests to reduce the number of people held in custody as much as possible”. In R. v. T.L., 2020 ONSC 1885, Molloy J. explained at para. 36:

[T]he more people that are housed in the institutions, the harder it will become to achieve any distancing to prevent infection or to contain or treat any infections that do occur. It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).

[37] In my view, all three of these considerations weigh in favour of Mr. Tully’s release under the tertiary ground. With respect to the issue of his own personal susceptibility to the COVID-19 illness, there was conflicting evidence from his proposed sureties about whether Mr. Tully suffers from asthma, [8] and I am not persuaded on the evidence before me that it has been demonstrated that he falls within a subgroup of inmates who face particularly dire health risks if they become infected with the coronavirus. However, I am satisfied that a reasonable member of the public would nevertheless understand that Mr. Tully’s prospects of becoming infected with the coronavirus will probably be higher if he remains incarcerated than if he is released under house arrest, and that if he were to become infected there is a significant chance this could lead to serious and potentially life-threatening health consequences even if he is not especially susceptible.

[38] In this regard, I should note that I do not agree with the criticism that has been raised in some cases that the conclusion that there is a heightened risk of contracting the coronavirus infection in a custodial institution where “the ability to practice social distancing and self-isolation is limited, if not impossible” [9] involves improper “speculation” [10] and violates the limits on when judicial notice can properly be taken of scientific matters. [11] In my view, it is important to recognize that in the context of the tertiary ground analysis this conclusion is only being drawn for the limited purpose of assessing how a reasonable member of the public would view the choice of releasing or detaining the defendant, which is an inherently speculative exercise. I see nothing wrong with a court recognizing that a reasonably well-informed member of the public would view social distancing and self-isolation to be important ways of reducing the risk of coronavirus infection, and would accordingly be concerned that inmates in provincial remand centres will face a higher risk of falling ill with COVID-19 simply because these measures are more difficult or impossible.

[39] With respect to the second factor – the length of time Mr. Tully is likely to be on remand – his trial was originally scheduled to be held in the fall of 2020, with pre-trial motions scheduled for July. While it is still possible that these hearings could proceed as scheduled, it remains an open question whether the Court will have resumed anything resembling normal operations by July, or even by the fall. Even are the Court does reopen, there will be a large backlog of trials that were scheduled to be heard during the shutdown, some of which may have to be given priority. Accordingly, I am satisfied that a reasonable member of the public would understand that there is a substantial risk of Mr. Tully’s trial being delayed. Moreover, such a person would also understand that his release on bail will benefit the administration of justice as a whole by reducing the pressure on the system to have his trial proceed quickly, thereby potentially allowing other in-custody cases to be given priority.

[40] Finally, I am satisfied that a reasonable member of the public would understand that there are important social benefits of reducing the size of the remand population during the COVID-19 crisis, as explained by Molloy J. in the passage from R. v. T.L., 2020 ONSC 1885 quoted above. In this regard, it is of some significance that the Ministry of the Solicitor General’s April 21, 2020 “Response to COVID-19 Information Note”, which was provided to me by the Crown, emphasizes that there has been a “32% reduction since March 16, 2020” of the total inmate population in provincial facilities.

[41] Balancing all of these factors, I agree with the conclusion reached by Spies J. in R. v. Ali, 2020 ONSC 2374 at para. 98:

[I]n these extraordinary times, it would bring the administration of justice into disrepute if someone who has met his onus on the secondary ground is not released notwithstanding strong tertiary ground concerns on the four statutory factors. In my view, any concerns that a reasonable person might have about the impact an order releasing Mr. Ali might have on the administration of justice in circumstances such as these are minimized in the face of the COVID-19 crisis as it pertains to our jails and the release plan proposed by Mr. Ali.

The accused in R. v. Ali, 2020 ONSC 2374, like Mr. Tully, faces very serious charges that include charges relating to the possession of a mixture of heroin and fentanyl for the purpose of trafficking and possession of a loaded firearm, and like Mr. Tully has a prior criminal record for similar offences. In my view, the considerations outlined by Spies J. apply equally to Mr. Tully. Even though the four statutory factors favour his continued detention, I am satisfied that a reasonable and well-informed member of the public would still consider his release under a well-constructed and strict bail plan as the best option for the administration of justice in the circumstances that now exist in Ontario.

V. Disposition

[42] For these reasons, I am satisfied that Mr. Tully has met his burden in relation of justifying his release on house arrest bail, essentially on the terms he is proposing. Specifically, I am directing that bail be granted with Choice Clunie, Dennis Chevers and Danardo Jones named as sureties. The total amount of bail will be set at $35,000, apportioned as follows: $5,000 each for Ms. Clunie and Mr. Jones, and $25,000 for Mr. Chevers. The terms of release will include a house arrest condition requiring Mr. Tully to reside at his mother and Mr. Chevers’s residence at 48 Weyridge Trail, Brampton, ON, L6V 3Y3, and requiring at least one of his sureties to be present in the residence with him at all times when he is there. This house arrest condition will have exceptions permitting Mr. Tully to leave the residence for medical emergencies and to attend court while in the company of a surety. Mr. Tully will also be required to submit to electronic monitoring, to be provided by Recovery Sciences Corp.

[43] I would ask counsel to craft appropriate release conditions based on the record and these reasons, and to arrange to have a draft order provided for my approval. If there are terms that cannot be agreed upon, I will resolve the differences, and if necessary will arrange a conference call for this purpose.

The Honourable Justice Dawe Released: May 1, 2020

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANDRE TULLY REASONS FOR JUDGMENT The Honourable Justice Dawe Released: May 1, 2020

[1] R. v. Myers, 2019 SCC 18 at para. 43. [2] R. v. Myers, 2019 SCC 18 at para. 41. [3] G. Trotter, The Law of Bail in Canada, supra, Ch. 4.2(b). [4] R. v. St-Cloud, 2015 SCC 27 at para. 87. [5] See, e.g., R. v. J.S., 2020 ONSC 1710, R. v. T.L., 2020 ONSC 1885, R. v. Rajan, 2020 ONSC 2118, R. v. Williams, 2020 ONSC 2237, R. v. J.A., 2020 ONSC 2312, R. v. Ali, 2020 ONSC 2374. [6] See, e.g., R. v. Jeyakanthan, 2020 ONSC 1984. [7] R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Mordue, 223 C.C.C. (3d) 407 (Ont. C.A.); R. v. St-Cloud, 2015 SCC 27. [8] Mr. Jones testified that he recalled Mr. Tully using an asthma inhaler when they were children, but his mother did not recall her son having an inhaler as a child and described his problems breathing as more in the nature of claustrophobia. [9] R. v. J.S., 2020 ONSC 1710 at para. 19. [10] R. v. Jeyakanthan, 2020 ONSC 1984 at para. 28. [11] R. v. Abidjan, 2020 ONSC 2349.