Court File and Parties

COURT FILE NO.: 4776/20 DATE: 2020-05-08 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen AND: Derek Horth

BEFORE: Mr Justice Ramsay

COUNSEL: Donna Polgar for the DPP; Robert Mahler for the Attorney General of Ontario; Deepak Paradkar for the accused

HEARD: May 8, 2020

Publication Ban

An order has been made under s.517 of the Criminal Code. This endorsement, apart from the first and final paragraphs thereof, may not be published until the jury has been sequestered or the accused has elected trial without a jury.

Endorsement

[1] This is a review under s.520 of the Criminal Code from the detention order made by Justice of the Peace Moira Moses on March 23, 2020.

[2] The accused is charged with possession of controlled substances for the purpose of trafficking, possession of firearms without a licence and possession of proceeds of crime. After an extended investigation the accused found the accused in a residence that had a bag of cocaine on the kitchen table and three firearms hidden elsewhere. In total the police retrieved eight pounds of cannabis, 400 grammes of psilocybin and over 2 kilos of cocaine from the residence. In a locker the accused was observed to frequent, the police found cutting agent, scales, a metal press (that could be used to make pills), a debt list and identification in the name of the accused. The Crown will also rely on evidence of alleged drug transactions during mobile surveillance.

[3] The accused has 13 previous convictions between January 2013 and February 2020. He has two convictions for possession of a schedule II substance for the purpose of trafficking, both in 2013. He was convicted of possession of a schedule I substance for the purpose of trafficking in 2017.

[4] The accused submits that there are two material changes in circumstance and that the justice made four errors of law at the bail hearing.

Material changes in circumstance

[5] The material changes alleged are

a. The mother of the accused now works from home and would be able to supervise the accused all day. The mother and stepfather of the accused are now offering $10,000 cash instead of $5,000 cash, and a $100,000 bond instead of $50,000 and they have signed up for ankle bracelet monitoring b. The pandemic makes it undesirable to incarcerate the accused.

The record

[6] The parties have filed materials on this review in addition to the transcript of the bail hearing and exhibits thereat. The defence has filed affidavits from the accused and his sureties as required by the Rules. He has also filed the affidavit of Dr Aaron Orkin and some medical records of the accused. The Crown Attorney has filed a report from the Ministry of the Solicitor General about the state of affairs in correctional institutions and detention centres with respect to the pandemic. The defence does not object to my use of this document. Counsel for the DPP has filed a summary of the allegations. It formed part of written submissions at the bail hearing. It is not in the form of an affidavit. It is not evidence for me.

The plan

[7] The mother will now be in a better position to supervise the accused, but the quality of supervision she has to offer is still questionable. I would expect a parent to excuse his or her own child to a certain extent, but this particular surety manifests a tendency to be blind to her son’s faults and to advocate for him. She ascribes his problems to anxiety, depression and anger amangement and shows no capacity to recognize that he has any degree of responsibility. She does not seem to accept that character issues and his own decisions have much importance.

[8] For example, at the bail hearing, the mother of the accused knew that he had been stabbed in 2018 or thereabouts. Either she did not know or did not think it important that he got into a fight in a bar after which he and three friends invaded the residence of the man with whom he had been in the fight. During the home invasion, the homeowner stabbed the accused. The accused was charged with break, entering and committing an offence. He was convicted on April 4, 2019 and sentenced to 110 days imprisonment on top of 86 days pre-sentence custody, plus probation. The mother was the surety on this bail. She focused on what had been done to her son, but not what her son had done.

[9] With respect to the latest conviction, the mother acknowledged that he accused had been convicted of assault, “which we are appealing.” We? Really? In this context the mother explained that the accused had had a child with a woman with whom he never had a relationship, but “[the victim] would force Derek to go over there and sleep there and he didn’t … want a relationship, she did.” She forced him to sleep there? Again, really? The mother has identified with her son and his interests. At 28 he is too old for this sort of approach to be helpful.

[10] I have also to note, as did the justice, that the offences with which the accused is charged took place during the same period of time when he was allegedly living on and off with his mother, back and forth between Manitoba and Niagara Falls, by which time the previous convictions had given the parents ample notice of the need to be watchful.

[11] The mother’s affidavit on the review is argumentative. She cites portions of the justice’s reasons and says why she disagrees with them. I do not find that approach helpful. Argument should come from the lawyer, not the witness. Witnesses should confine their evidence to factual matters. That could include opinion about the character of the accused, but not about the justice’s findings.

[12] The accused person’s mother is not suitable as a surety. The fact that she is now available all day and offering more money does not change that fact. Nor does the prospect of an ankle bracelet.

[13] The stepfather’s affidavit is also argumentative. It does not cast doubt on the aptness of the justice’s assessment of the case.

The pandemic

[14] The accused has filed the affidavit of Dr Aaron Orkin, a medical doctor and public health specialist. Dr Orkin prepared this affidavit for another case. It was sworn on April 6, 2020. He says:

18. The central strategy for the population health management of COVID-19 is referred to as “flatten the curve”. The principle here is that measures can be taken to reduce the incidence of new cases, that is, the number of new people getting infected on any given day. This means that the health care system’s most vital resources are not overwhelmed by a sudden bolus of sick people requiring intensive care and scarce resources. If the healthcare system is not overwhelmed, fewer deaths will occur. …
19. From a medical and population health perspective, it is in the best interest of the community at large that an aggressive approach be taken to depopulating custodial facilities, be they jails, prisons, penitentiaries, reformatories or detention centers, and whether they be for males or females, youths or adults. So long as individuals are forced to congregate in relatively small spaces where they cannot keep at least 2 meters apart from each other at all times, and where they share bathroom, shower, telephone and other facilities, and where people from the outside (new inmates, correctional staff, volunteers) occasionally populate their space, COVID-19 will have a perfect environment in which to spread both inside and then outside the facilities.
20. The state of health of a particular inmate is irrelevant to my recommendations. Whether an inmate is old or young, frail or robust, in good health or suffering from pre-existing conditions, my opinion would remain the same: from a public health perspective, during the current pandemic it would always be in the best interest not only of the inmate but of the community at large to release the inmate to a less populated environment such as their own home.
21. It goes without saying that a judicial official deciding whether or not to detain somebody will inevitably take other considerations into account and will have to balance various factors in determining what is in the community’s best interest. My opinion is concerned only with what is in the community’s best interest with respect to the imminent threat of a COVID-19 pandemic. Subject to other considerations, any solution that promotes and enables physical distancing between individuals is in the community’s best interest for the management of COVID-19.

[15] The bail hearing was decided after the provincial emergency was declared. The justice adverted to the emergency and expressly considered its implications for her decision. She considered the other relevant factors, as Dr Orkin recognizes she would have to do in paragraph 38 of his affidavit.

[16] The Ministry of the Solicitor General, in its “Response to COVID-19 Information Note” dated April 28, 2020, reports no infections at Niagara Detention Centre as of April 27.

[17] I have some more evidence on the accused person’s own medical issues than were mentioned at the bail hearing, but it does not change the picture. No material change has occurred.

Errors

[18] The accused says that the justice made the following errors:

a. She relied on the parents’ lack of knowledge of the accused person’s antecedents when they in fact had general knowledge of them. b. She misapprehended the Crown’s case and gave excessive weight to it. c. She erred by deciding the sureties’ suitability instead of the suitability of the accused for release. d. She misstated the test for detention on the tertiary ground.

Sureties’ knowledge of the accused person’s antecedents

[19] The justice said the following on this issue:

Mr. Horth has no charges for breaching his release orders while under his mother’s surety supervision in the past. However, some of the difficulty with this proposed release plan is the backstory indicating that that Mr. Horth has allegedly operated a sophisticated drug operation remotely from Manitoba while under his mother Erin McGee’s supervision there. …

[N]either proposed surety has the type of influence over Mr. Horth that is necessary to prevent future offences in these circumstances. …

[B]oth proposed sureties work outside of the home daily. … the suitability of the parties suggested as additional supervisors is untested except to say that Mr. Horth’s sister is the former girlfriend of a provincially known drug trafficker with links to organized crime. …

The added difficulty is that Derek Horth’s criminal antecedents run contrary to his mother and step-father’s perception of his character and their experiences with him. …

Additionally, neither proposed surety had detailed knowledge of Mr. Horth’s criminal past.

[20] These observations and conclusions were all available to the justice on the evidence.

The Crown’s case

[21] The justice said this:

The police surveillance was over a period of months. Those observations and the nature of the real evidence outlined in the items seized from all locations searched, give strength to the Crown’s case against Mr. Horth and the allegations support the suggestion that Mr. Horth has a pivotal role in a sophisticated and complex drug operation in Niagara despite having a primary residence with his mother and step-father in Manitoba.

[22] These findings were available on the evidence. Moreover, the justice said that the strength of the Crown’s case is only a factor. She described the Crown’s case as “relatively strong.”

The sureties’ suitability and the accused person’s suitability

[23] The justice’s own words are a complete answer to this objection. In addition to her observations about the suitability of the sureties, she said:

These differing views of Mr. Horth are indicative of complexities of character that suggest that surety and cash release would not prevent the commission of further offences in these circumstances.

Ultimately, the issue isn’t whether the two sureties are suitable, the issue is whether Mr. Horth is suitable for release. Given the totality of circumstances, the answer is “NO”, for all the reasons set out above.

The test on the tertiary ground

[24] The impugned passage is the following:

Even considering the potential negatives that Mr. Horth could face in custody, it is my view that a reasonable member of the community, properly informed about the law of bail, the legislative intent, Charter values and the total circumstances in this case would lose confidence in the administration of justice if he was released.

The risk of harm to the public is just too high. For all of these reasons Mr. Horth has been unable to show cause why his detention is not justified.

[25] The complaint is that the justice did not use the word “necessary” that is found in s.515(10)(c) of the Criminal Code. She did, however, refer to section 515(10)(c) of the Code in the same context, only half a dozen paragraphs before saying that the accused had not shown that his detention was not “justified.” S.515(10)(c) says that detention is “justified” if it is “necessary”. There is no reason to think that the justice applied the wrong test. Writing a judgment is not a question of filling in a checklist. Here an experienced justice with a full understanding of the governing statute and jurisprudence set out her reasons for doing what she did in a cogent and readable fashion. Those reasons show no error of law or unreasonable findings of fact.

Conclusion

[26] I have found neither error nor material change in circumstance. On this record it cannot be said that the decision to detain the accused was clearly inappropriate.

[27] The application is dismissed.

J.A. Ramsay J. Date: 2020-05-08