Court File and Parties
Court File No.: CR-20-00000123-00BR Date: 2020-05-04 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – D.D., Applicant/Defendant
Counsel: S. Yeghoyan, for the Applicant (Defendant) E. Jackson, for the Respondent
Heard: April 28, 2020, by conference call
Molloy J.
Reasons for Decision
PUBLICATION BAN pursuant to ss. 517(1) and 520(9) of the Criminal Code. [FOR CLARITY - COUNSEL ARE PERMITTED TO CIRCULATE ENDORSEMENT TO OTHER COUNSEL OR USE IN COURT. PUBLICATION AND QUOTATION OF GENERAL PRINCIPLES FROM THE CASE IS PERMITTED. PUBLICATION IS PROHIBITED OF ANY FACTS ABOUT PARTICULAR DEFENDANT’S CHARGES, AND IDENTIFYING INFORMATION ABOUT THE DEFENDANT OR HIS PERSONAL CIRCUMSTANCES]
1. Introduction
[1] This is an application for bail review. The accused (“D.D.”) is charged with two counts of possession of the same loaded firearm (one count under s. 95(1) and the other under s. 92(1) of the Criminal Code). He is also charged with breaching a lifetime weapons prohibition order made on November 26, 2013, again based on his alleged possession of that same firearm. The offence date is December 2, 2018, and D.D. was arrested on that day. He has been in custody at the Toronto South Detention Centre (“Toronto South”) ever since. D.D. applied for bail. The hearing proceeded in the Ontario Court of Justice on December 5, 2018, following which Vaillancourt J. ordered his detention, for reasons delivered orally on December 10, 2018.
[2] D.D. now applies for a review of that detention order, based on a material change in circumstances. His March 23, 2020 trial date in this Court was adjourned as a result of the closures flowing from the COVID-19 pandemic. The delay of his trial, as well as the circumstances of being detained in a correctional institution during the pandemic, are conceded by the Crown to constitute a material change in circumstances, warranting a hearing de novo. I agree.
[3] This application for bail review proceeded before me, on consent, by way of conference call. D.D. was on the call for its entirety, as was his counsel and Crown counsel. All of the documents were filed electronically. D.D. testified briefly to expand upon his affidavit, and was cross-examined by the Crown. This was done upon his solemn affirmation to tell the truth. The Crown sought to cross-examine the proposed new surety, Michael Thompson. This was done by Mr. Thompson swearing on a Bible, which he had in his personal possession. He also was examined briefly by defence counsel and cross-examined by the Crown. The parties otherwise relied on the affidavits and documentary records filed and the transcripts from the initial bail hearing. At the conclusion of the evidence, I asked that both sureties as well as D.D.’s mother be on the line to hear the submissions of counsel, which was done. My reason for including D.D.’s mother was that she would be living in the house with D.D. under the proposed release plan, even though she was not being proposed as a surety.
[4] At the conclusion of submissions by counsel, I dismissed the application. I advised at that time that I agreed with the original reasons given by Vaillancourt J. for detaining D.D. pending his trial. I noted that although the COVID situation represented a material change in circumstances since the date of the earlier decision, I did not consider those circumstances to sufficiently tip the balance so as to warrant D.D.’s release, based on my concerns under both the secondary and tertiary grounds. I indicated that I would be delivering a written endorsement setting out my reasons in more detail. Those reasons follow.
2. The Current Charges and Prior Criminal Conduct of D.D.
[5] The charges D.D. is now facing arose in December, 2018. As a result of information received, the Guns and Gangs Task force obtained a search warrant for D.D.’s car and for an apartment where D.D. was known to reside with his girlfriend (Annecia Delaney), their then two-year-old daughter, and his girlfriend’s mother. On December 3, 2018, police officers saw D.D. emerge from the apartment building. They arrested him as he approached his car. He was carrying a backpack, inside which the officers found a 45 calibre semi-automatic handgun. It was fully loaded, including having a bullet in the chamber, ready to fire. At the time, D.D. was subject to an order, dated November 26, 2013, imposing a lifetime prohibition against the possession of weapons. D.D. was therefore charged with possession of the firearm, as well as breaching the prohibition order.
[6] D.D. was born on December 26, 1992 and is now 27 years old. He was nearly 26 at the time of his arrest in December, 2018.
[7] D.D.’s first conviction was as a youth, when he was convicted in July, 2011 of possession of drugs (Ecstasy) for the purpose of trafficking and sentenced to 9 months’ probation, as well as a weapons prohibition order under the Youth Criminal Justice Act. He would have been 18 at the time of sentencing, but the offence was committed while he was still a youth.
[8] On October 18, 2011, while still subject to that probation order and the prohibition order, D.D. was involved in a drug-related incident in the course of which he shot a man in the neck. He was convicted of a number of offences in relation to that matter: aggravated assault; armed robbery using a firearm; failing to comply with the probation order; and, breaching the weapons prohibition order. He was sentenced on November 26, 2013 to the equivalent of 5 years in jail (when the credit for time served is taken into account), followed by 3 years’ probation for 3 years. Also at that time, a weapons prohibition order for life was made.
[9] By December 2015, D.D. had been released from jail after serving the custodial portion of his sentence for aggravated assault, but was still subject to the probation order. While driving, he was stopped by police for a traffic violation. Upon checking his identification, the officers noted the existing probation order. They detected a smell of marijuana in the car and found marijuana on D.D.’s person, which was a breach of the probation order than he not be in possession of illegal drugs. He was charged with the breach and also with simple possession of the marijuana. He was released on his own recognizance, with a condition that he reside with his mother at 65 Havenbrook, and that he not be in possession of drugs or a weapon.
[10] Less than two months later, and while still on that recognizance, D.D. sold cocaine on two separate occasions (January 27 and 29, 2017) to an undercover officer. He was arrested on January 29, 2017. His car was searched, revealing 8.38 grams of cocaine, 8.1 grams of MDMA, and cash proceeds of crime.
[11] On June 30, 2016, D.D. pleaded guilty to failing to comply with a probation order in relation to the possession of marijuana in December 2015 and was sentenced to 30-days in custody, intermittent. On September 20, 2016, also after a guilty plea, D.D. was convicted of two counts of trafficking and one count of failing to comply with a recognizance in relation to the January 2017 incidents. He was sentenced to a total of 90 days intermittent, plus a period of probation.
[12] Approximately six months after that guilty plea and sentencing, the police received information from a confidential informant that D.D. was in possession of a firearm and dealing drugs, while living at 65 Havenbrook with his mother and stepfather. Police surveillance teams saw D.D. driving a white Acura and attending at 65 Havenbrook on multiple occasions. On April 1, 2017, they obtained a search warrant for 65 Havenbrook. That evening, surveillance officers saw D.D. leave his girlfriend’s residence at 320 Niska Road with an infant child, who he placed in the backseat of the car. The surveillance team followed D.D.’s car, but he apparently noted someone following him, which prompted him to undertake some highly dangerous evasive driving. Eventually, D.D. stopped his car in the middle of the road, got out, and confronted a surveillance officer who was sitting in an unmarked car on the side of the road. When D.D. then returned to his car, the police decided to arrest him. D.D. attempted to avoid the police cars and one of the cars rammed D.D.’s vehicle, while other cars pinned him in. He was thereupon arrested. Police then searched the basement bedroom of 65 Havenbrook, where D.D. had been living, where they found 102.8 grams of marijuana, 14.13 grams of cocaine, and approximately $1100.00 in cash. At the time of this incident, D.D. was driving while his license was under suspension and did not have any insurance on his vehicle.
[13] Multiple charges were laid in relation to the April 1, 2017 events, including possession of the drugs and proceeds found at 65 Havenbrook. However, the Crown ultimately withdrew all charges. At the initial bail hearing in this matter in December 2018, Crown counsel advised the Court that there were two reasons for withdrawing those charges: concerns about protecting the identity of the confidential informant; and, concerns about the fact that the police rammed the car, knowing there was a baby inside. At the initial bail hearing, defence counsel (not the same as counsel before me), objected to the admissibility of any evidence about these charges because they had been withdrawn by the Crown. Vaillancourt J. ruled that the information was admissible, subject to the weight that could be given to the hearsay information in the absence of a finding at trial or a guilty plea. Similar arguments were raised by defence counsel before me, a point to which I will return in my analysis.
[14] The charges now before the court arose in December 2018, again after police received information from a confidential informer leading to the issuance of a search warrant. This time the warrant authorized searches of Apt. 1212 at 320 Niska Road (where D.D. lived with Ms. Delaney and their child) and D.D.’s car. On December 3, 2018 officers arrested D.D. as he was walking from the apartment building towards his parked car. He was carrying a backpack in which the police found a fully loaded semi-automatic handgun. There was also a bullet in the chamber, making the gun ready to fire. At the time, D.D. was subject to the lifetime weapons prohibition ordered on November 26, 2013.
3. The Proposed Release Plan
[15] At the time of the original bail hearing, the proposed release plan was for D.D. to reside with his two sureties (Ms. Delaney and her mother) at their apartment at 320 Niska Road, under house arrest and subject to their round-the-clock supervision. This plan was rejected by Vaillancourt J., essentially because D.D. could not be trusted to follow court orders.
[16] The plan proposed before me is that D.D. will reside at 65 Havenbrook, which is the residence of his stepfather (Michael Thompson) and his mother. It is also proposed that upon D.D. being released from custody, Ms. Delaney will move into that residence along with their little girl, who is now three years old. D.D. will be under house arrest, with a term that he not leave the house except in the company of one of his sureties. The two proposed sureties are Ms. Delaney (who is able to put up $5000.00) and Mr. Thompson (who is prepared to pledge $20,000).
[17] No specific arrangements were made for electronic monitoring, but defence counsel submitted that D.D. would agree to such a term if the monitoring was available under the new provincial government plan, as part of the COVID-19 measures undertaken to reduce the jail population.
4. Analysis
Reverse Onus
[18] The parties agree that this is a reverse onus situation because of the nature of the charges and the prior prohibition order, which the accused is alleged to have now breached. Therefore, the accused bears the burden of demonstrating that his release is appropriate. The Crown raises no concerns under the primary grounds (whether the accused will attend for trial), and I will therefore not address this point. However, the Crown argues that the defence has failed to meet its onus under the secondary and tertiary grounds. I agree with the Crown’s position on both points.
Secondary Grounds
[19] On the secondary grounds, D.D. has failed to satisfy me that he is unlikely to reoffend if released. Any plan of release, even when accompanied by the highest level of house arrest and electronic monitoring, is dependent to some degree upon the accused being compliant and the sureties being able to control his behaviour. Given his past conduct, there is no reason whatsoever to believe D.D. will be compliant with the terms of any bail order. D.D. has amassed an unenviable criminal record given his relatively young age. Further, he has a track record of repeatedly disobeying all manner of court orders, including probation orders, recognizances, and prohibition orders. He also has a history of behaving in a violent manner when police have attempted to arrest or detain him. His pattern of reoffending in relation to drug trafficking and the possession and use of firearms is particularly alarming. If he does reoffend, it is highly likely to be in a manner dangerous to the safety of the public.
[20] Further, I am not persuaded that D.D. will be deterred from reoffending by the proposed sureties, no matter how sincere they may be in their commitment to supervising him. Mr. Thompson has known D.D. since he was two or three years old. He has never agreed to be a surety for him in the past, but testified that he believed D.D. was now trying to improve himself and that particularly in light of the COVID crisis, he would stay at home. However, D.D. has lived with Mr. Thompson and his mother in the past while continuing to engage in criminal activity. Mr. Thompson said he disapproved of this criminal lifestyle, but he acknowledged he only told D.D. to stop this activity “once or twice” and that he did not discuss this activity in “any detail” with him. He also acknowledged that despite these discussions, D.D. continued his life of crime and violence.
[21] Mr. Thompson is employed full-time as a carpenter with a cabinet design and construction company in Scarborough. While at work, he would not be available to supervise D.D. during the day. One would think that during the pandemic, Mr. Thompson would be at home. However, on the day of the bail hearing, he participated by phone from his workplace in Scarborough, which would not be one of the essential services exempted from the COVID-19 requirements to stay at home. While his evasiveness about this apparent breach of the pandemic rules troubles me, my main concern is the absence of Mr. Thompson from the home during the day while he is at work, as well as his inability (or disinclination) to influence D.D.’s conduct in the past.
[22] One other small point is that Mr. Thompson disclosed in his affidavit that he owns a handgun, for which he has a license, and uses it for target practice. He said in his affidavit that he keeps the gun and ammunition “under lock and key” in his home. He testified at the hearing that it is kept in a safe in his bedroom and that he always has the key on his person. I was extremely concerned about the presence of a gun in the house, regardless of whether it is kept in a safe. I asked Mr. Thompson if he would be prepared to turn it over to the police for safekeeping during anytime D.D. was on bail in his home, and he agreed that he would. Interestingly, D.D.’s counsel volunteered the information that Mr. Thompson had initially been resistant to putting this information about the firearm in his affidavit because he believed D.D. did not know about the gun, and he did not want him to find out about it. This is telling. It seems to me that Mr. Thompson shared my concern that notwithstanding any order I made, if D.D. knew there was a gun in the house, he might take it.
[23] Finally, I note that in 2017, while D.D. was living at Havenbrook with his mother and Mr. Thompson, he had a large amount of cocaine and marijuana, along with what would appear to be proceeds of crime, in his bedroom there. It was found by police in execution of a search warrant. I accept that these charges were never proven and were withdrawn by the Crown. However, that does not mean that the circumstances cannot be taken into account, always subject to the weight that can be placed on what is hearsay evidence. I do not agree with the submissions of defence counsel that withdrawn charges should be treated in the same manner as charges upon which the accused has been acquitted. Rather, they should be treated in the same manner as other hearsay evidence with respect to charges that have not been proven or admitted (e.g. the charges before the court, or other outstanding charges that have not reached trial). On that basis, I would distinguish my earlier decision in R. v. T.L., 2020 ONSC 1885 (at para. 14), and the cases upon which I relied, which involved the circumstances of charges upon which the accused had been tried and acquitted. More applicable, in my view, is the reasoning of Dambrot J. in R. v. Hansa, 2016 ONSC 4541 at paras. 21-27 and the decision of the Supreme Court of Canada in Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21. In the Toronto Star case, the Supreme Court held (at para. 28):
To avoid any delay prejudicial to an accused who ought to be released, while at the same time ensuring that those who do not meet the criteria for release are kept in custody, compromises had to be made regarding the nature of the evidence to be adduced at the bail hearing. There are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of the accused in custody is justified. According to s. 518(1)(e) Cr. C., the prosecutor may lead any evidence that is “credible or trustworthy”, which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits. The justice has a broad discretion to “make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable” (s. 518(1)(a)). The process is informal; the bail hearing can even take place over the phone (s. 515(2.2)).
[Emphasis added.]
[24] In my opinion, if circumstances of prior charges are relevant to an issue on a bail hearing, that evidence is admissible, regardless of the fact that the charges were never proven at a trial or accepted as true as part of a guilty plea. That situation is quite different from introducing evidence about a charge upon which the accused has been acquitted. Even where there has been an acquittal, some evidence about prior charges might be admissible on a bail hearing, e.g. evidence showing that the accused was in a particular place, or that he was in the company of particular people. However, the charges in this case were simply withdrawn. Further, this is not a situation where the Crown withdrew the charges while stating on the record that the reason for doing so was that there was no reasonable prospect of a conviction. Accordingly, I find that the observations made by the police at the time of the incident underlying the charges before this court are admissible at this bail hearing, if relevant to an issue on the hearing, always of course subject to the weight that can be given to untested hearsay evidence.
[25] For present purposes, it is relevant that D.D. was driving a car without a license or insurance, as such conduct demonstrates his complete disregard for following the rules. Further, the fact that he was a drug dealer is relevant to the issues before me (as was also found by Dambrot J. in Hansa). These two facts have some limited relevance to whether D.D. will be likely to reoffend, although I do not attach significant weight to them. However, I do consider it significant that in 2017, while living in the home of his stepfather and mother, D.D. had a substantial quantity of illegal drugs in his bedroom. This conduct gives me a serious concern as to D.D.’s level of disrespect for his parents and causes me to doubt whether he will pay any attention at all to controls Mr. Thompson might seek to put in place.
[26] As I noted, Mr. Thompson will frequently not be in the home due to work. That will leave the main responsibility for supervision to Ms. Delaney. The previous proposed plan at the time of the hearing before Vaillancourt J. also featured Ms. Delaney as the main supervisor. Vaillancourt J. did not find this plan to be adequate to address his concerns under the secondary grounds, nor do I. Further, I see no material difference under the current proposed plan. Ms. Delaney now works from home with an online clothing retail company. However, she previously worked in the travel industry, has her travel agent license, and intends to return to that line of work. Even assuming she will be able to continue to work from home while at 65 Havenbrook, she will certainly not be able to watch D.D. all of the time while working. She stated in her affidavit that D.D. understands she is putting considerable trust in him. I do not know whether D.D. understands that, or whether he cares. However, Ms. Delaney testified at the original bail hearing that she does not agree with and will not tolerate D.D. being involved in criminal activity. I accept that she did not know about his criminality when she first met him, but she said she found out about it three days later. That was four years ago. He has been involved in substantial criminal activity since then, and yet she continues to support him. Either she tolerates his criminal conduct, or she does not know about it. Neither option is a good one. Either she permitted D.D. to drive with their baby in a car when he had no license or insurance, or she did not know about. Again, neither is a good option. At the previous bail hearing, she testified that she wanted D.D. to be required to participate in counselling. She seemed to think this was very important to keep him away from a criminal way of life. However, on cross-examination, she admitted that she has never suggested to D.D. that he seek out counselling. I also note that on the day of his arrest, D.D. was leaving Ms. Delaney’s apartment while carrying a loaded handgun. Again, not a good sign. I have no information to indicate that Ms. Delaney knew about any of this conduct. It is possible that D.D. has deceived her all this time, or that she has had her head in the sand. I have no reason to believe that this would not continue if D.D. is now released, with Ms. Delaney being the main person responsible for his supervision.
[27] Taking all of these deficiencies in the plan into account, and in particular in light of D.D.’s past record in defying all manner of laws, rules, and court orders, I find he has not discharged his onus of satisfying me under the secondary grounds. I do not consider the current COVID-19 to be particularly relevant to this ground for detention. I am not satisfied that D.D. is so afraid of returning to an institution during the pandemic that he will suddenly start following the rules.
Tertiary Grounds
[28] I also agree with the conclusion of Vaillancourt J. that D.D. did not met his onus under the tertiary grounds. The Crown’s case is very strong. At the time of his arrest, D.D. was carrying a backpack with the gun inside it. The fact that it was fully loaded, along with a bullet in the chamber, ready to be fired, is aggravating. This is a serious offence, for which D.D. is likely to receive a substantial penitentiary term, particularly in light of his prior record and the lifetime prohibition order. I also share Vaillancourt’s view that a properly informed member of the public would look unfavourably at the administration of justice if D.D. were released under these circumstances. As Vaillancourt J. put it (at page 7):
The public’s confidence in the administration of justice would take a serious hit when the above noted factors of this case is viewed in the backdrop of the gun violence that appears to be running amok in the GTA should the accused be released pending his trial.
[29] It is at this point of the analysis that the COVID-19 implications become particularly relevant. The other relevant circumstances are essentially unchanged. However, the question of me at this stage is whether the change in circumstances as a result of the COBID-19 pandemic overcomes those other concerns under the tertiary grounds. As I have noted in R. v. T.L., this is not a “tick-off-the box” exercise in which detention must be ordered if the listed statutory factors exist. All of the surrounding circumstances must be considered, which clearly includes the increased risk of contracting COVID-19 in an institutional setting, and all of the things that flow from that (including conditions within the prison system, the strain on the correctional staff, the strain on the health care system, and the increased anxiety level of inmates held in these conditions). I referred to some of those considerations in my earlier decision. I recognize that conditions have not improved since then, and may be worse. I have read with care the affidavit of Dr. Aaron Orkin, filed by the defence. I do not take issue with anything he says. This is a very difficult time to be incarcerated, particularly prior to trial while under the presumption of innocence and without any clear idea of when a trial might occur.
[30] On the other hand, I also recognize that the institutions are taking active steps to keep those who are incarcerated as safe as can be managed under the realities of the situation. They will not be perfect, as there can never be guarantees, but they are acting responsibly.
[31] It is simply not the case that everybody awaiting trial must be released in light of the current pandemic. The circumstances of the pandemic are simply one of the factors to be taken into account in determining whether detention is necessary in order to maintain the integrity of the justice system and protect the community. Without the COVID pandemic, I would have no hesitation whatsoever in ordering detention pending trial. The more difficult question is whether, in light of the pandemic, the scales are now tipped in the other direction.
[32] I have reviewed all of the cases provided by counsel, as well as others (including my own), in which the COVID pandemic was the decisive factor in persuading the judge to order the accused’s release. All of these decisions turn on their particular facts, as is typical in cases of this nature. The vast majority of the cases can be distinguished on two grounds: (1) where the accused was particularly vulnerable; and (2) where there was a strong plan of supervision upon release. Neither of those circumstances exist here. The accused is 27 years old and in good health. Apparently, he had asthma as a child and may have seasonal allergies, including sinusitis. There is no medical evidence to support the suggestion that he is at a heightened risk. Moreover, even if the risk is somewhat elevated as compared to other inmates, I do not accept it is to a significant degree. However, it is the second issue which most distinguishes this case from those in which the accused was released on bail. In the case before me, the plan for supervision is not strong. It is likely D.D. will reoffend in a manner that is dangerous to the public. Further, even with the addition of electronic monitoring (if that could be arranged), the scheme would be dependent upon D.D.’s compliance with the rules. I have no confidence that he would do so. For me, this is the consideration that overrides the concerns about the implications of the pandemic.
[33] There have been a number of cases in which detention continues to be ordered notwithstanding the pandemic. In particular, I rely upon: R. v. Hassan, 2020 ONSC 2265, per Dunphy J.; R. v. Smith, 2010 ONSC 1889 at paras. 68-69 and 74-76 per Cavanaugh J.; and R. v. Ibrahim, 2020 ONSC 2241, per Bird J. I echo the following observation of Bird J. in Ibrahim (at para. 29):
I must weigh the risk posed by COVID-19 to people in custody against the factors enumerated in Section 515(10) of the Criminal Code, particularly the safety of the public, in light of the serious nature of the offences Mr. Ibrahim is charged with. COVID-19 is a factor to be considered but is not determinative of a bail application. If it were dispositive, no one would be detained in custody pending trial until the pandemic is over.
5. Conclusion
[34] The applicant accused has failed to satisfy me that his release is warranted due to my concerns under both the secondary and tertiary grounds. On the contrary, I find that if released under the proposed plan there is a real likelihood that he will reoffend, and that the nature of his reoffending would jeopardize the safety of the community. Electronic monitoring would not alleviate those concerns. Further, I find that D.D.’s detention is necessary to maintain public confidence in the justice system. I accept that the proposed sureties are law-abiding citizens who have come forward in good faith and with sincere intentions. The weakness of the proposed supervision plan is entirely of the accused’s own doing. I recognize the implications of such a determination in the current pandemic, and I accept that COVID-19 can be a factor to tip the balance in favour of release in many cases. However, in my opinion, this is not one of those cases. Accordingly, I have dismissed the application.
Molloy J. Date: May 4, 2020