Court File and Parties

COURT FILE NO.: CR-20-00000136-00BR DATE: 20200505 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Z.A. Applicant

COUNSEL: S. Malik, for the Respondent L. Riva, for the Applicant

HEARD: April 29, 2020.

Reasons for Decision

SCHRECK J.:

[1] Z.A. has been in custody awaiting trial on two counts of criminal harassment and one count of failing to comply with a probation order for 11 months. He has never had a bail hearing and has exercised his right to have his detention reviewed by this court pursuant to s. 525 of the Criminal Code.

[2] Z.A. has a criminal record which includes several convictions for related offences. The Crown opposes his release on the secondary ground. Because of the current COVID-19 pandemic, this application was heard by me remotely. Both parties submitted documentary evidence electronically, none of which was challenged in cross-examination, and counsel for both parties made submissions during a teleconference.

[3] After the hearing, I reserved my decision briefly and then advised the parties that the application was dismissed with reasons to follow. These are those reasons.

I. FACTS

A. The Allegations

[4] In 2017, the applicant was serving a sentence at the Toronto South Detention Centre (“TSDC”) for a criminal harassment conviction. It was there that he met the complainants, H.P., a program coordinator employed at the TSDC, and R.K., an inmate program volunteer. It is not clear from the information I was provided whether either complainant had professional dealings with the applicant while he was in custody. However, he allegedly waved to R.K. on one occasion and in April or May 2017, he gave her a letter addressed to her.

[5] In June 2017, R.K. encountered the applicant, who had since been released, on the street outside a store. Later that month, R.K. encountered the applicant in the lobby of the TSDC, where he gave her another letter. At that time, R.K. told the applicant that she wished to have no further contact with him.

[6] In July 2017, the applicant again attended the TSDC and spoke to H.P. He gave her a letter and asked her to give it to R.K. Following this, the police spoke to the applicant’s bail program case worker and asked her to advise the applicant that R.K. did not wish to have contact with him. She did so, which apparently upset the applicant.

[7] In June 2018, the applicant telephoned a police officer, Det. Cst. Watson, and told him that he had sent flowers to R.K. Det. Cst. Watson advised the applicant that R.K. did not wish to have contact with him and that he would be charged with criminal harassment if he persisted. Later that month, the applicant’s probation officer also cautioned him not to contact R.K.

[8] In December 2018, the applicant attended the TSDC and asked to speak to H.P. He had a cake with him which he wished to give to her. The police attended and told the applicant that H.P. did not wish to have contact with him and that he would be charged with criminal harassment if he continued to attempt to communicate with her. The applicant indicated that he understood and apologized.

[9] In February and March 2019, the applicant left numerous voicemail messages on H.P.’s work phone in which he expressed a wish to contact R.K., at times stating that he had the “right” to contact her.

[10] In March 2019, the applicant telephoned the Toronto East Detention Centre and asked to speak to R.K., who was presumably volunteering there. He told the staff member who answered the telephone that he had sent flowers to R.K.

[11] Later the same month, R.K. encountered the applicant as she was leaving a restaurant with a friend. As she got into her car, the applicant approached and tried to say something, but she drove away in a panic. She called 911 and the police attended the scene but were unable to locate the applicant.

[12] Throughout this period, the applicant was bound by a probation order which was imposed following an earlier conviction for criminal harassment in relation to an unrelated complainant.

B. The Applicant’s Arrest and Subsequent Convictions

[13] The applicant was arrested on March 28, 2019 on these charges and an unrelated assault charge based on an allegation that he had spat on a security guard at a library. On April 3, 2019, the applicant was released on bail on all charges. However, he was returned to custody on May 24, 2019 after placing two telephone calls to R.K.’s personal phone. He has remained in custody since that time. The Crown has elected to proceed summarily and the applicant’s trial is scheduled to take place in June 2020.

[14] On November 4, 2019, the applicant was found guilty of failing to comply with a recognizance and failing to comply with a probation order in relation to the May 2019 telephone calls to R.K. He received a sentence of six months imprisonment on each charge, against which he was given credit for presentence custody.

[15] On February 25, 2020, the applicant was found guilty of the assault charge and failing to comply with a probation order. He received a sentence of 40 days imprisonment on each charge, to be served concurrently and against which he was given credit for pre-sentence custody.

C. Earlier Convictions

[16] In May 2014, the applicant was convicted of criminal harassment and failing to comply with a peace bond for repeatedly communicating with a woman who was a stranger to him. He was sentenced to a total of five months imprisonment, which he had already served in presentence custody, and placed on probation for two years.

[17] In November 2014, he was convicted of failing to comply with a probation order after being found in possession of a knife and fined $100.

[18] In October 2017, the applicant was convicted of criminal harassment for repeatedly communicating with a woman he had once lived with. One of the communications included a threat that the applicant would fire a machine gun in a police station. In November 2017 he received an effective sentence of imprisonment for two years less a day and was placed on probation for three years.

D. The Applicant’s Circumstances

[19] I have been provided with little information about the applicant. He is currently 40 years old, estranged from his family and homeless. He has in the past been diagnosed with a delusional disorder and a narcissistic personality disorder and was for a time involuntarily committed to a mental hospital.

E. The Proposed Plan of Release

[20] The applicant proposes that he be released on his own recognizance subject to certain conditions. A mental health agency, Sound Times Support Services, is willing to assist him in finding housing and appropriate mental health and medical support. Unfortunately, there is no available surety or organization that is willing to supervise the applicant.

II. ANALYSIS

A. The Nature of the Review

[21] This is a review conducted pursuant to s. 525 of the Criminal Code. Unlike a review conducted pursuant to ss. 520 or 521, this is not a review of any prior judicial order but, rather, a review of the detention itself. The question which the court must answer is whether the continued detention of the applicant is justified within the meaning of s. 515(10) of the Code, that is, whether detention is necessary on the primary, secondary or tertiary grounds set out in that section: R. v. Myers, 2019 SCC 18, at paras. 45-47.

[22] Where, as in this case, there has been no prior bail hearing, the court must conduct the full bail hearing “from the ground up”: Myers, at para. 56. A s. 525 hearing can only take place where the accused has been in custody for at least 90 days. In considering whether the continued detention of an accused is justified, the court must consider the passage of time. This is relevant to not only the tertiary ground, but the secondary ground as well. As noted in Myers, at para. 53, “[i]n an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the … secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty ….”

B. The Secondary Ground

(i) Likelihood of Further Offences

[23] In this case, the Crown has no concerns with respect to the primary ground but opposes the applicant’s release on the secondary ground. The Crown does not rely on the tertiary ground.

[24] Section 515(10)(b) of the Code states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “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.” In this context, a “substantial likelihood” means “a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226, at para. 87.

[25] Unfortunately, the applicant’s history shows that he has a propensity to become fixated on women he encounters and engage in harassing conduct towards them. He persists in this behaviour despite being told by the women in question that they do not wish to have contact with him and despite being warned by the police that his conduct will result in criminal charges. He has engaged in this pattern of conduct for several years and in relation to several different victims. There is no reason to conclude that if released, he would not continue to engage in this conduct towards the complainants he is charged with harassing or other women. His history shows that there is a substantial likelihood that he will do so.

(ii) COVID-19

[26] There is currently a pandemic of a coronavirus disease, COVID-19, which is caused by a novel coronavirus that was first discovered in late 2019. While much about the virus is unknown, it is clear that it spreads easily. The pandemic has affected most of the world’s population in some way or other. At the time these reasons were prepared, over 3,400,000 people worldwide have been infected with the virus and over 230,000 have died as a result. There are over 57,000 cases in Canada, more than 17,000 of which are in Ontario, and over 3,600 deaths, over 1,200 of which are in Ontario. [1] Most governments, including those of Canada and Ontario, have attempted to control the spread of the disease by implementing various strategies to minimize contact between individuals. This is commonly referred to as “flattening the curve.”

[27] On this application, the applicant filed an affidavit by Dr. Aaron Orkin, a physician and epidemiologist. Dr. Orkin’s evidence, which I accept, is that preventing outbreaks in congregate living facilities such as detention centres is an important priority for the flatten-the-curve strategy. Reducing the number of individuals in such facilities is therefore an important goal, not only for the individuals who are released, but for society as a whole.

[28] However, any benefit resulting from reducing the prison population must be weighed against the need to protect the public from those who are likely to commit serious criminal offences if released. I accept that in some cases, the existence of the pandemic will be relevant to the secondary ground if the fear of contracting the disease while in custody will provide some additional motivation for an accused to abide by the conditions of his bail: R. v. T.K., 2020 ONSC 1935, at para. 60; R. v. Cahill, 2020 ONSC 2171, at paras. 27-30. This is not such a case. First, there is no evidence from the applicant that his behaviour will be affected by his fear of contracting the disease: R. v. Hastings, 2020 ONSC 2083, at para. 52. Second, the applicant’s history of persisting in harassing conduct despite being cautioned by the police that doing so will result in charges suggests that he acts on impulse rather than a consideration of potential negative consequences of his behaviour.

(iii) The Passage of Time

[29] As noted earlier, the applicant has been in custody for approximately 11 months. Approximately seven months and 10 days of that time has been attributed towards sentences for other charges he was since convicted of, which leaves about three and two-thirds months of pre-sentence custody which could be applied to his outstanding charges if he is convicted of them. In accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, this would amount to about five and a half months. Even if the applicant were to be granted additional credit in relation to the conditions of his incarceration, given his antecedents it is unlikely that he is approaching a “time served” situation. This conclusion is subject to two qualifications.

[30] First, I should not be taken as agreeing with Crown counsel’s suggestion that the appropriate sentence if the applicant is convicted is the summary conviction maximum of 18 months.

[31] Second, my conclusion is premised on the applicant’s trial being currently scheduled to take place in June. Given the ongoing pandemic, there is good reason to suppose that the courts will not be open at that time and whether there will be an ability to conduct trials remotely by then is unclear. If it turns out that the applicant’s trial will be significantly delayed, this may well constitute a material change in circumstances justifying a further review of the detention.

III. DISPOSITION

[32] The application is dismissed.

Justice P.A. Schreck Released: May 5, 2020

[1] https://covid19.who.int/; Public Health Agency of Canada, “Daily Epidemiology Update – May 3, 2020”, pp. 1-2.