COURT FILE NO.: CR-3147-00BR (Chatham)
DATE: 7 May, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.C.
J. Ghag, for the Provincial Crown
K. Bailey for the Federal Crown
W.C. Rosemond, for the Accused
HEARD: April 28 and May 7, 2020
RELEASED ORALLY ON MAY 7, 2020
RESTRICTION on publication
Information contained in this judgment is subject to a publication restriction under subsection 517(1) of the Criminal Code.
REASONS ON BAIL REVIEW
MUNROE j.:
[1] A.C. seeks review of the March 17, 2020 detention order of Justice of the Peace D. Auger. The Justice of the Peace held that the secondary and tertiary grounds for detention, as set out in ss. 515(10)(b) and (c) of the Criminal Code, R.S.C., 1985, c. C-46, mandated detention.
[2] A.C. now is before this court for a bail review hearing pursuant to s. 520. He urges me to vacate his detention order and thereafter to release him on a recognizance with house arrest, two sureties, and full-time around-the-clock supervision by the sureties. A.C. asserts that the Justice of the Peace below erred by overemphasizing the strength of the Crown’s case. In addition, the defence asserts there are four material changes in circumstances: 1) a more rigorous release plan; 2) the extortion charge was withdrawn; 3) the cocaine charge was withdrawn; and 4) the COVID-19 pandemic. These circumstances give this court authority to assess the bail issue anew. Considered correctly, and taking into consideration the new changes in circumstances, the defence argues that detention is not necessary for either the protection or safety of the public, nor to maintain confidence in the administration of justice.
[3] Crown counsel disagree. They assert the detention decision below was not clearly inappropriate. Additionally, according to the Crowns, the new release plan continues to be unsatisfactory, the withdrawal of the cocaine and extortion charges are not a material change, and the existence of the COVID-19 pandemic is not sufficiently significant that it could affect the balancing of the justice’s decision.
[4] Thus, the issues before me are two. First, whether the accused has shown cause to vacate the detention order, pursuant to s. 520(7)(e), either because the detention decision was clearly inappropriate or because new evidence establishes a material and relevant change in circumstances. Second, if the first issue is answered in the affirmative, whether the accused has met his burden to satisfy me, on a balance of probabilities, that detention is no longer necessary for the protection or safety of the public or to maintain confidence in the administration of justice, pursuant to ss. 515(10)(b) and (c).
Procedural History
[5] A.C. is charged in Chatham jointly with K.T.S. in two separate informations, 19-1825 and 20-1916, both arising out of the same traffic stop on December 12, 2019: possession for the purpose of trafficking of two controlled substances, namely fentanyl and methamphetamine, and a series of firearm charges alleging possession of a prohibited firearm and prohibited ammunition, including possession while prohibited from doing so. In Information 20-1916, A.C. also is charged with obstruction of a peace officer, by giving a false name, contrary to s. 129(a) of the Criminal Code.[^1]
[6] At the time of A.C.’s arrest on the Chatham charges, A.C. had charges pending in Scarborough, an 11 count information alleging serious domestic violence involving the same complainant over a five year period: two counts of assault causing bodily harm, one count of assault with a weapon, two counts of assault, two counts of threats, one count of extortion, and three counts of failing to comply with recognizance. On January 3, 2020, A.C. was released on the Scarborough charges on a recognizance with the same sureties proposed here. Neither a transcript of that bail hearing nor the reasons for the decisions were put before the bail justice or before me. Finally, with regard to the Scarborough charges, at the bail review hearing it was agreed that subsequent to the entry of the Scarborough bail order, the charge of extortion was withdrawn.
[7] After the Chatham bail hearing, A.C. was ordered detained by Justice of the Peace Auger.
[8] A hearing was held by audio conference before me on consent. It took place during the COVID-19 pandemic when in-person hearings before the Ontario Superior Court of Justice had been suspended. A.C. participated in the conference call from the South West Detention Centre where he is being held.
[9] The day before I was scheduled to give my decision on this application, I received information from the Federal Crown that the cocaine possession for the purpose charge would be withdrawn. On May 7, 2020, upon the commencement of the audio conference proceedings, the Federal Crown did withdraw Count 1 of Information No. 19-1825 explaining that the seized substance, thought to be cocaine, was tested and found to be a non-controlled substance. I thereafter inquired of defence counsel whether he wished to add this withdrawal as a material change in circumstance in this application. He did. Said amendment was allowed. Thereafter, submissions were heard on the amendment. The matter was stood down for consideration.
Chatham Allegations
[10] In the late morning of December 12, 2019, OPP Constable Peck stopped a westbound black Volkswagen Jetta on Highway 401 in the Municipality of Chatham-Kent for allegedly travelling 130 kph in a 100 kph speed zone.
[11] There were three occupants of the motor vehicle: K.T.S. was in the driver’s seat, a female young person was in the front passenger seat, and A.C. was in the rear seat, behind the front seat passenger.
[12] According to the police, the initial traffic stop led to the finding of a bag of suspected cannabis. A.C. was arrested on Toronto arrest warrants. A subsequent search of the car pursuant to the Cannabis Control Act 2017, S.O. 2017, C.26, Sched. 1, resulted in the finding of the gun, that then led to the arrest of K.T.S. and the young front seat passenger. Back at the station, the police found the controlled substances in the car.
[13] According to the police, the gun was found in an enclosed area below the centre console: the top of the side plastic molding panel of the centre console, passenger side, had been disconnected leaving a small gap. It was through this top gap, slightly expanded and looking down, that the officer saw the butt-end of the handgun.
[14] A gym bag on the rear seat next to A.C. contained a scale with white residue, baggies and unidentified pills. K.T.S. claimed ownership of the gym bag and said the pills were organic for work-outs. According to Constable O’Rourke, at the police station he confirmed that the pills were not controlled substances.
[15] At the scene, A.C. first identified himself to the police as Marcus English, a false name.
[16] The approximate weights of the seized controlled substances are as follows: methamphetamine – 14 grams; and fentanyl/heroin mix – less than one gram.
[17] Subsequent to the original submissions and on consent of counsel, I was provided eight Health Canada Certificates of Analyst. The results of the substances tested revealed the presence of methamphetamine on three certificates, the presence of a heroin/fentanyl mixture on one certificate, the presence of cannabis on one certificate, and the presence of the non-controlled substance, phenacetin, on three certificates. On May 7, 2020, the Federal Crown confirmed that the non-controlled substance, phenacetin, was the seized suspect cocaine.
Initial Bail Hearing
[18] On March 10, 2020, a bail hearing was held before Justice of the Peace D. Auger. The parties agreed it was a reverse onus situation. The Crown’s concerns were the secondary and tertiary grounds.
[19] The proposed defence release plan was for a house arrest at the home of A.C.’s girlfriend (hereinafter “Ms. M.”) with exceptions including work, emergencies, counsel and medical appointments, and in the presence of a surety. Two sureties were proposed: A.C.’s sister (hereinafter “Sister”) and Ms. M., the same ones proposed now. The proposed sureties were willing to pledge a total of $4,000.00. The house arrest plan included video monitoring through Rogers at the home of Ms. M.
[20] The Chatham factual allegations were read into the record and were supplemented by the Will Say Report of Constable O’Rourke. Those allegations are detailed above.
[21] The Scarborough factual allegations were read into the record as now summarized. The complainant in all of the Scarborough charges was the domestic partner of A.C.; they were in a common-law relationship for seven years.
[22] On August 6, 2019, the police were called to an apartment building where they found the complainant bleeding profusely from her face. According to her, A.C. had punched her in the face. She sustained a broken nose and a concussion. Stitches were necessary to close a cut on her nose. A.C. had left the scene.
[23] On August 8, 2019, the complainant again called the police asserting that A.C. had made a threatening phone call to her. She agreed to provide the police with a video statement in which she alleged a history of violence against her by A.C.
[24] In December of 2014, A.C. punched the complainant in the face.
[25] In February of either 2016 or 2017, A.C. punched the complainant multiple times causing a fractured rib and a concussion. She was struck so hard she was vomiting blood.
[26] In April of 2017, A.C. punched the complainant in the face.
[27] On June 19, 2019, A.C. struck the complainant with a thrown cell phone causing a gash to her leg.
[28] The three allegations of breach of recognizance are dated June 19, 2019, August 6, 2019, and August 8, 2019. The condition breached in all three charges was house arrest. The surety was A.C.’s sister, who, as alleged by the police, attempted to cover up for A.C. by telling the police A.C. was at a clinic when, in fact, he was with the complainant. The underlying substantive charges that resulted in the recognizance and its house arrest condition (not the Scarborough case), subsequently were withdrawn for unstated reasons. The breach charges, however, remain outstanding.
[29] The criminal record of A.C. is before me. A.C. has eight convictions from 2009 to 2015, from ages 17 to 24. A.C. was on probation until age 27. More particularly, a summary of his criminal record follows:
09 Mar 09 Toronto (Youth Ct) Robbery 56 days time served + 18 mths
Probation
Disguise with Intent 18 mths probation concurrent
22 Apr 09 Toronto (Youth Ct) Theft Under 12 mths probation
01 Mar 13 Brampton Assault 12 days + 1 year probation
01 Dec 14 Brampton Fail to Comply - 12 mths probation (14 days
Probation Order time served)
16 Sep 15 Brampton Assault x 2 15 days intermittent on each
Conc + 3 year’s probation and
5 year weapons prohibition
10 Nov 15 Toronto Threats 10 days intermittent +
1 year probation and
10 year weapons prohibition
[30] At the bail hearing, the defence called both proposed sureties.
Sister
[31] Sister is the younger sister of A.C. She is 28 years of age, a Canadian citizen, and resides in a rented condo unit in Mississauga. She has no criminal record nor any outstanding criminal charges.
[32] She has a full-time job as an insurance advisor and is studying to obtain the Chartered Professional Insurance designation. She earns approximately $47,000.00 annually and owns no real property or other assets.
[33] She lives alone in her two-bedroom apartment.
[34] She testified she is very close to A.C. She described him as being very ambitious and a good father. According to her, A.C. listens to her and respects her. They communicate one or two times each week. She does not know the Scarborough complainant very well.
[35] She was a surety for A.C. once in the past, over 10 years ago. A.C. breached, he did not follow the rules, so she pulled his bail. When asked why this time is different, Sister first testified that A.C. has to listen to her. On cross-examination, she said A.C. is now older and more mature.
[36] Sister is close friends with Ms. M. They plan to work together as sureties for A.C. They both are willing to adjust their work schedules as needed. She says her work schedule is flexible. Her work shifts change quarterly.
[37] Sister was aware of the charges against A.C. for breaching his house arrest bail condition. The surety on that bail was not her and was not a sister of A.C., it was a cousin. According to her, A.C. was not able to work while he was on house arrest.
[38] Sister and Ms. M. are looking into home monitoring systems. With that system, they can be at work and continue to monitor A.C. According to her, the home monitoring system can be installed right away.
[39] Sister is not aware of any drug abuse issues with A.C.
[40] She is prepared to pledge $2,000.00, which is a lot of money for her.
Ms. M.
[41] Ms. M. is A.C.’s girlfriend since October 2019. They met three years ago but only started dating recently. She never has lived with A.C. She agreed that this dating relationship was only about two months in length before A.C. was arrested and jailed. She was broadly aware of A.C.’s criminal record but did not discuss it much because that was in the past. A.C. never told her he was taking a road trip on December 12, 2019. She is unaware of any substance abuse issues with A.C.
[42] She is 33 years old and a Canadian citizen with no criminal record or outstanding charges. She has an eight-year-old daughter who lives with her.
[43] Ms. M. is a personal support worker employed full-time at Women’s College Hospital. Her current shift is 8:30 a.m. to 5:00 p.m. Monday through Friday. According to her, she has the ability to switch her shifts. She chose her current shift because, as a single mother, she wants more time with her daughter. Now, however, she is willing to adjust her schedule to meet the needs of monitoring A.C.
[44] Ms. M. lives in the Vaughn area in a house owned by her mother and her grandmother. It is a three-bedroom house with a basement bedroom. Her grandmother, aged 80, and her sister, aged 27, also live in the house.
[45] Ms. M. does not have a car. It is approximately 30 minutes to travel from her house to Sister’s condo in Mississauga.
[46] Although she is aware of the duties and responsibilities of a surety, Ms. M. has no prior surety experience. In her brief relationship with A.C., Ms. M. admitted she never has given A.C. rules, has had any authority over A.C., or has had to tell A.C. not to do something.
[47] She is willing for A.C. to live in her house and intends to use the Rogers home monitoring system to assist. She also intends to coordinate with her good friend, Sister, in supervising A.C.
[48] Ms. M. is willing to pledge $2,000.00, which is a lot of money to her.
Reasons for Detention
[49] Justice of the Peace Auger provided reasons in his detention decision.
[50] With regard to the secondary ground, the Justice of the Peace reasoned:
The nexus of the accused’s criminal record, current charges, alleged failure to comply with weapons prohibitions and release conditions corroborates a substantial likelihood that the accused will, if released, commit further criminal offences, and the demonstrated penchant for violence will compromise the protection of and endanger the safety of the public.
[51] With regard to the tertiary ground, the Justice of the Peace reviewed and found all four statutory factors to be “engaged” concluding:
On the tertiary grounds, a reasonable person defined in St. Cloud, accepting the four engaged tertiary factors combined with the proposed plan, would lose confidence in the administration of justice if you were released. You have therefore not met your onus on the tertiary ground, and will be detained in custody pending the disposition of your matter.
[52] The Justice of the Peace found the proposed plan inadequate principally because of the deceptive nature of the accused. The two proposed sureties live one half hour apart and, given their work schedules, there would be extended unsupervised periods. The camera proposal, according to the Justice of the Peace, appeared unrealistic. The court below specifically found Ms. M. unsuitable because she would not be able to control A.C.
Bail Review Hearing
[53] On April 28, 2020, a s. 520 bail review hearing was held before me. The parties agreed it continued to be a reverse onus situation. The Crown’s concerns were the same: the secondary and tertiary grounds.
[54] At the hearing, the following materials were before me and are considered:
Application Record:
Chatham Informations;
Affidavit of A.C. (unsigned);
Affidavit of Sister;
Affidavit of Ms. M.;
Toronto Recognizance;
Transcript of Bail Hearing; and
Transcript of Detention Order;
Amazon order confirmation – shipment of home camera to Sister;
Three Affidavits of Dr. Aaron Orkin;
Ministry Response to COVID-19 Information Note;
Updated Information Regarding Positive COVID-19 Tests in Provincial Institutions;
A.C.’s criminal record;
Will Say of Constable Sean O’Rourke; and
Certificates of Analyst.
[55] The defence also presented a new release plan: a recognizance with house arrest and continuous 24 hour per day direct supervision by two sureties, enhanced by out-of-the-box home camera monitoring. The two sureties pledging a combined total amount of $7,000.00. The proposed sureties are the same ones previously offered before Justice of the Peace Auger and who currently are accepted pursuant to the Toronto recognizance order.[^2] Both proposed sureties gave sworn evidence before me and provided sworn affidavits.
Sister
[56] Sister is the younger sister of A.C. She is 28 years of age. She lives alone on the fifteenth floor of a high-rise apartment building in Mississauga. It is a two-bedroom unit with one exit and no balcony.
[57] Sister works full-time as an insurance advisor. Prior to the COVID-19 shutdown she worked standard business hours: 9 a.m. to 5 p.m., Monday through Friday. Now she works at home and her office hours are reduced to two days each week. She is able to adjust her schedule, even after the reopening, to ensure supervision of A.C.
[58] Sister is agreeable to enforce house arrest including a 24 hour/7 days a week total supervision of A.C. He will never be left alone. The other proposed surety, Ms. M., is a close friend of hers. They will work and coordinate together to ensure 24 hour supervision. Ms. M. does live 25 to 30 kilometers and about 30 minutes away from Sister’s apartment.
[59] To assist in the supervision, she has purchased an out-of-the-box home camera system to help monitor A.C. Although she has no prior experience with home monitoring systems, she believes she is able to install and implement the system. On cross-examination, Sister testified that the system is WiFi-based which means if the connection is interrupted, the system too will be interrupted. In addition, the system will not keep A.C. from leaving the apartment; the camera recording only documents that he did.
[60] Sister was a surety for A.C. eight years ago which did not end well. She had to and did call the police.
[61] Sister is willing and able to enforce a 14 day quarantine if A.C. is released from custody.
[62] Sister is willing to pledge $3,000.00, which is a significant amount of money for her.
Ms. M.
[63] Ms. M. is the recent girlfriend of A.C. Although they have known each other for three years, they did not become a couple until October 2019.
[64] Ms. M. is 33 years of age and lives in Maple, Ontario, near Vaughn. She lives in a three-bedroom home. She lives there with her grandmother and her mother, both of whom own the home. Also living there is Ms. M.’s eight-year-old daughter.
[65] Ms. M. is a personal support worker. She presently works full-time at Women’s College Hospital. Before the COVID-19 crisis, she worked standard business hours Monday through Friday. Because of the pandemic, her hours have increased when the need arises. She believes she can coordinate/adjust her work schedule to enable her to fulfill her supervisory responsibilities as a surety. She is a strong friend of Sister and will coordinate with Sister to ensure full-time supervision.
[66] Ms. M. is willing to pledge $4,000.00, which is a significant amount of money for her.
Background of the Accused
[67] From the bail hearing and his unsigned affidavit, A.C.’s background can be gleaned. A.C. is 29 years of age. He was born October 25, 1991. He has three children, ages 6, 7 and 11. He saw his children every weekend until his arrest.
[68] A.C. has not completed his high school education, although he was working on courses at the detention centre before their cessation due to the COVID-19.
[69] At the time of his arrest, A.C. was working part-time as a painter earning $15.50 per hour.
[70] According to his counsel at the bail hearing, “He has no mental health or health issues.” This was confirmed by counsel at the bail review hearing.
COVID-19
[71] The defence submitted the following for my consideration of the COVID-19 issue:
• An open letter dated April 6, 2020 from Medical Professionals to Canadian Federal, Provincial and Territorial Governments entitled, “Release Prisoners to Protect Public Health”; and
• An affidavit of Dr. Aaron Orkin, M.D., a physician and epidemiologist dated April 7, 2020, with attachments.
[72] I echo and adopt the characterization by Regional Senior Justice Thomas of the same documents in R. v. Brown, 2020 ONSC 2626, at paras. 29 and 30:
These materials are compelling. I find them properly before me in this bail review. The open letter entreats governments to release inmates who are most vulnerable; those who are over age 50 and suffering from chronic health problems.
Dr. Orkin has impressive credentials. His opinions would seem indisputable.
[73] I specifically reject the Crown’s argument that this court should not consider this material for failing to satisfy the Mohan criteria for expert opinion evidence. Bail hearings, including bail review hearings, are designed to be flexible regarding the admissibility of evidence as codified in ss. 518(1)(e) and 520(9). I consider both documents to be credible and trustworthy in the circumstances. They shall be considered.
[74] Both documents properly are from the perspective of public health and recognize the added considerations when dealing with correctional and detention facilities. Dr. Orkin, at para. 37 of his affidavit states,
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.
[75] The prosecution submitted the following for my consideration:
• Ministry of the Solicitor General Response to COVID-19 Information Note dated April 21, 2020; and
• Ministry of the Solicitor General Updated Information Regarding Positive COVID-19 Tests in Provincial Institutions.[^3]
[76] These too are helpful and shall be considered. The former provides a detailed description of the strategies implemented in detention centres and correctional facilities to limit the impact the effects of COVID-19 to inmates and correctional staff. The latter provides the numbers of COVID-19 infections as of April 21, 2020. It identifies one, a third party, at the South West Detention Centre. That party was neither an inmate nor a staff member.
Other Information
[77] Quite understandably, given the very recent, ongoing and universal nature of the COVID-19 crisis that directly impacts virtually everyone, counsel argued the COVID-19 crisis before me with no record evidence except the documents reviewed above. I say understandably, because this is an extraordinary, historical event that has dominated everyone’s life from mid-March through and including today. It appears that there are no definite, precise facts to most aspects of this crisis. We proceed on government proclamations and directives premised, we are told, on that day’s best medical advice and even that, at times, has changed (e.g. no masks needed to wear masks). In other words, this crisis clearly is evolving quite rapidly as more facts become accepted as known.
[78] There are more than 20 reported trial decisions in Ontario concerning COVID-19 and bail. There are at least 5 Ontario Court of Appeal decisions on the same issue. The number of decisions on this issue grows weekly. These decisions have mentioned, to a greater or lesser degree, the COVID-19 situation, not always with a clear attribution to record evidence.
[79] Pursuant to s. 17 of the Canada Evidence Act, I take judicial notice of the following acts of the Province of Ontario:
Declaration of Emergency: Ontario Order in Council 518/20 dated March 17, 2020 including the following: “Whereas the outbreak of a communicable disease namely COVID-19 coronavirus disease constitutes a danger of major proportions that could result in serious harm to persons”;
Prohibition of Organized Public Events and Social Gatherings of More than Five Persons: Ontario Regulation 52/20 from March 28, 2020;
Closure of Outdoor Recreational Amenities (including playgrounds, sports facilities, dog parks, and picnic sites): Ontario Regulation 104/20 from March 30, 2020;
Closure of Places of Non-Essential Businesses (effective midnight on April 4, 2020): Ontario Regulation 82/20; and
Closure of Establishments (including public libraries, private schools, child care centres, bars and restaurants, and theatres): Ontario Regulation 51/20 effective April 16, 2020.
[80] I also take judicial notice of the following extraordinary order of the Chief Justice of the Superior Court of Ontario:
Suspension of Superior Court of Justice Regular Operations dated March 15, 2020 which begins: “To protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice (SCJ) is suspending all regular operations, effective Tuesday, March 17, 2020, and until further notice.
Finally, I take judicial notice of the Chief Justice’s “Notice to the Profession, Litigants, Accused Persons and the Media Regarding the Continued Suspension of In-Court Matters to July 6, 2020” dated May 5, 2020, advising that the Superior Court would not resume in-person hearings until July 6, 2020, at the earliest. The Superior Court will continue to virtually hear certain matters and intends to expand the scope of matters that will be heard virtually.
Positions of the Parties
Defence
[81] A.C. asserts that the Justice of the Peace below erred by overemphasizing the strength of the Crown’s case. In addition, the defence asserts there are four material changes in circumstances: 1) a more rigorous release plan; 2) the extortion charge was withdrawn; 3) the cocaine charge was withdrawn; and 4) the COVID-19 pandemic. These circumstances give this court authority to assess the bail issue anew. Considered correctly and taking into consideration the new changes in circumstances, the defence argues that detention is not necessary for either the protection or safety of the public nor to maintain confidence in the administration of justice.
Crown
[82] Crown counsel assert that the detention decision below was not clearly inappropriate; the justice did not give excessive weight to the strength of the Crown’s case. Additionally, according to the Crowns, the new release plan continues to be unsatisfactory, the withdrawal of the cocaine and extortion charges are not a material change, and the existence of the COVID-19 pandemic while material, at least on the tertiary ground, is not sufficiently significant that it could have affected the balancing exercise of the justice.
Legal Principles
Right to Reasonable Bail
[83] All persons charged with an offence have the constitutional right “not to be denied reasonable bail without just cause:” Section 11(e) of the Charter of Rights and Freedoms. This right “entrenches the effect of the presumption of innocence at the pre-trial stage … and safeguards the liberty of accused persons:” R. v. Antic, 2017 SCC 27, at para. 1. Pursuant to this Charter right, bail only can be denied in a narrow set of circumstances which are necessary to promote the proper functioning of the bail system: R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at para 60; R. v. Morales, [1992] 3 S.C.R. 771, at para. 38.
[84] Parliament enacted The Bail Reform Act¸ now ss. 515 through 526 of the Criminal Code, that established a general entitlement to bail: Pearson, at para 52. Indeed, it is now abundantly clear that release is the rule and detention the exception: R. v. Myers, 2019 SCC 18, at para. 1; R. v. Antic, at para. 29; R. v. St. Cloud, 2015 SCC 27, at para. 70. “[W]e must not lose sight of the fact that pre-trial detention is a measure of last resort:”: Myers, at para. 67.
Bail Review
[85] Section 520 (1) & (7) provide, in pertinent part, as follows:
(1) If a justice … makes an order under subsection 515 …(6) …, the accused may, at any time before trial of the charge, apply to a judge for a review of the order.
(7) On the hearing of an application under this section, the judge may consider
(a) the transcript … of the proceedings heard by the justice …,
(b) the exhibits … filed in the proceedings before the justice, and
(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,
and shall either
(d) dismiss the application, or
(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that [s]he considers is warranted.
[86] In R. v. St. Cloud, 2015 SCC 27, the Supreme Court clarified the framework of an application for bail review. It is a two-step process.
[87] A bail review is not an open-ended review. A reviewing court does not have the power to interfere with the detention order simply because he or she would have weighed the evidence differently. Rather, it is incumbent upon the applicant to first establish any one of three grounds: there was an error in law, the decision was clearly inappropriate, or new evidence shows a material and relevant change in circumstances.
Clearly inappropriate decision
[88] One of the circumstances that will authorize a reviewing court to conduct a de novo s. 515(10) hearing is if the detention decision was “clearly inappropriate”: St. Cloud, at para. 121. “Clearly inappropriate”, in this context, means that the justice “gave excessive weight to one relevant factor or insufficient weight to another:” Ibid. But, the Supreme Court cautioned, “The reviewing judge … does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.” Ibid.
[89] Helpfully, Trotter J. (as he then was) in R. v. Dang, 2015 ONSC 4254, at para. 37, provided additional guidance:
St. Cloud urges bail review judges … take the same deferential approach to first instance bail decisions as appellate courts take to sentencing decisions. In the absence of some demonstrable error or problem in the handling and balancing of relevant and irrelevant factors, a reviewing judge should not intervene.
[90] Dang was a Crown application for a bail review of the release decision on an attempted murder case. The case against Mr. Dang’s knowing participation in the attempted murder was circumstantial: Dang, at para. 54. The bail court characterized the Crown’s case as “not at its maximum but it is very compelling” noting the gaps in the evidence: Dang, at para. 23. At paras. 44, 48 and 55, Trotter J., provided his learned views:
[T]he evidence against Mr. Dang is not overwhelming. … And while [the release decision] might be considered to be a close call, I cannot say that the decision is “clearly inappropriate.”
Had I been tasked with conducting this bail hearing, I might have balanced the s. 515(10)(c) factors differently and reached a different result. However, after St. Cloud, I am not permitted to review the case with an open-ended discretion and substitute my own views for that of the learned justice. I must determine whether she gave excessive weight to one factor and/or insufficient weight to another. Looking at her reasons as a whole, I cannot say that she did.
To use the words of Wagner J. [in St. Cloud, at para. 44], the Crown does not have an “overwhelming” case against Mr. Dang. This is significant. It is true that the Court in St. Cloud did not rank the importance of the statutory criteria in s. 515(10)(c). This is because the four factors are not independent factors that are singularly capable of justifying detention. They merely feed into the essence of s. 515(10)(c), which is whether detention is necessary to maintain confidence in the administration of justice. However, it stands to reason that the strength of the case in s. 515(10)(c)(i) enjoys some prominence in the mix. No matter how serious the allegations, and notwithstanding the potential penalty that an accused may face, detention based on a case weak tends to undermine confidence in the administration of justice, and not maintain it. [Emphasis in original.]
[91] Considering all of the circumstances, and especially the strength of the Crown’s case, Trotter J. found that the bail court justice did not error in applying s. 515(10)(c) and dismissed the s. 521 application on the threshold issue: Dang, at paras. 60 and 61.
Material change in circumstances
[92] With regard to material change in circumstances, the third qualifying avenue to an open-ended bail assessment, the Supreme Court in St. Cloud, at paras. 128-138, provided guidance as to what is new evidence in this context. The court adjusted the criteria in its earlier Palmer decision to the bail review context as follows:
due diligence – a criteria to ensure finality and order,
relevant,
credible, and
significant.
[93] Regarding the fourth Palmer criteria, the change must be significant. Indeed, as stated in St. Cloud, at para. 137, “the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice…”
Open-ended review
[94] Only when this threshold step is satisfied, is the reviewing court authorized to decide the bail issue as if he or she was the initial decision maker.
Grounds for Detention
[95] The statutory grounds justifying detention are found in s. 515(10). There are three, commonly called the primary, secondary and tertiary grounds. They are as follows:
(10) For purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention 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; and
(c) if the detention 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.
Secondary Ground – s. 515(10)(b)
[96] Section 515(10)(b), the secondary ground, justifies detention when it is necessary for the protection or safety of the public.
[97] The public safety ground for detention is narrow and is necessary to promote the proper functioning of the bail system: Morales, at para. 46. The bail system does not function properly if accused persons commit crimes while on bail: Morales, at para. 41. The Supreme Court, in Morales, para. 39, summarized the secondary grounds as follows:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.
Tertiary Ground – s. 515(10)(c)
[98] Section 515(10)(c), the tertiary ground, justifies detention when it is necessary to maintain confidence in the administration of justice.
[99] The proper functioning of this pre-trial release system, and indeed the criminal justice system as a whole, requires public confidence: Hall, at para 27. Thus, this statutory scheme championing the entitlement to bail, also includes specific grounds for pre-trial detention to maintain public confidence: s. 515(10)(c).
Principles Applied
[100] The defence seeks a vacation of the detention order for both a claimed clearly inappropriate decision and material and relevant changes in circumstances. All must be reviewed.
ISSUE ONE: Has the accused shown cause to vacate the detention order by reason of a clearly inappropriate decision?
[101] According to the defence, the justice below erred in law by overemphasizing the strength of the Crown’s case thereby making a clearly inappropriate decision.
[102] I respectfully disagree.
[103] The Justice of the Peace did characterize the Crown’s case against A.C. as “reasonably strong” but did not stop there. The justice thereafter noted trial issues in the Crown’s case: the vehicle was rented but not by A.C. and the gun was hidden in the front of the car adding that these were issues for the ultimate fact-finder. Specifically, the justice stated:
The Crown has a reasonably strong case with physical evidence located in the vehicle occupied by the accused. Defence raised triable issues, specifically that the vehicle was not rented by the accused. Defence explained that the gun was hidden in the front of the car, and not accessible to the accused who was seated in the right rear of the vehicle. The accused was not in possession of the gun.
These are triable issues to be decided and answered by a trier of fact. Bail court is not a trier of fact, and cannot make a judgment on the questions raised.
[104] In analyzing the tertiary ground, the Justice of the Peace again addressed the strength of the Crown’s case stating:
The Crown has a reasonably strong case with physical evidence located during what appears to be a lawful stop and subsequent search. Defence has raised triable issues to be determined by a trier of fact. This factor is engaged.
[105] Later in his reasons, when discussing the circumstances of the offence, the Justice of the Peace stated, “The circumstances involve … allegations of a prohibited handgun … secreted within the vehicle readily accessible by either the driver or either of the passengers.” [Emphasis added.] (This conclusion was available to the Justice of the Peace.)
[106] The justice considered this case strength factor together with the other factors in reaching his decision. Nothing in the decision stated or suggested added or inappropriate weight to the strength of the Crown’s case factor.
[107] That said, in reviewing this issue, I am mindful that the strength of the Crown’s case, or more accurately, a marked weakness in the Crown’s case, in appropriate cases, should take a more prominent role in a bail assessment because pre-trial detention on a notably weak case does not serve the administration of justice.
[108] Indeed, during submissions, I pressed the provincial Crown on this issue. In response, Crown counsel said, “I certainly would not say it’s strong. I’d say it’s average.” In support, Crown counsel cited the very recent decision of R. v. Forbes, 2020 ONSC 1798, at para. 25i. That case involved a hidden gun under front driver’s seat in a car owned by the accused with four occupants, including the accused in the front passenger seat: Forbes, at para. 4. Leibovich J., the reviewing judge, concluded, “[I]t would be inaccurate to label the Crown’s case as strong. But I do not think one can say that it is weak:” Forbes, at para. 25i. Justice Leibovich dismissed the bail review application of the accused.
[109] I do not find inaccurate the justice’s characterization of the Crown’s case here as “reasonably strong” while acknowledging its weaknesses. He fairly characterizes the strength and weaknesses of the case. While I may have framed the characterization differently, I cannot say that his characterization is “clearly inappropriate.” It is not. Moreover, the factor did not dominate the assessment under either the secondary or tertiary grounds. Finally, I am not convinced that the strength of the Crown’s case here is such that it must take a place of prominence in the assessment which overrides the balance of the factors.
[110] In all of these circumstances, looking at the detention reasons as a whole, I cannot say that the justice gave excessive weight to his characterization of the strength of the Crown’s case. I find it was not “clearly inappropriate.” The accused has not shown cause to vacate the detention order by reason of a clearly inappropriate detention decision.
ISSUE TWO: Has the accused shown cause to vacate the detention order by reason of new evidence establishing a material and relevant change in circumstances?
[111] A.C. raises four factors as changed circumstances: 1) a more rigorous release plan; 2) the extortion charge was withdrawn; 3) the cocaine charge was withdrawn; and 4) the COVID-19 pandemic. I will first analyze each and then consider them collectively.
- New release plan
[112] The defence offers the same two sureties, Sister and Ms. M., the same house arrest with camera monitoring, but this time at the home of Sister and with 24/7 direct surety supervision.
[113] This new plan, however, does not fully address the reasons for detention. The justice hinged his plan inadequacy finding on both the deceptive and dangerous nature of A.C. and the plan’s reliance on a surety he found to be unsuitable, Ms. M. The justice specifically found:
I believe [her emotional involvement with A.C.] would hinder her ability to discharge the duties as the surety. She would not be able to control the accused. [She] is not suitable.
[114] These findings were open to the justice to make and were unchallenged before me.
[115] The new plan proposes around-the-clock surety supervision of the accused this time at the home of Sister, yet it still relies on Ms. M. as one of the two sureties.
[116] The new plan’s reliance on Ms. M. is foundational. Even assuming satisfaction with the inherent weaknesses of the new plan (only two sureties living 30 minutes apart, with Ms. M. having no car, supervising a deceptive individual 24 hours each day), both of these women work full-time at responsible jobs. This means that they will have to take turns supervising the accused while the other is at work. They acknowledged this was part of the plan and vowed to coordinate their work schedules to ensure around-the-clock supervision. But, the plan has Ms. M. with the sole responsibility of supervising A.C. by herself for large blocks of time. In other words, this sole supervisory responsibility by Ms. M. is an essential part of the new release plan. The justice, however, specifically found Ms. M. unsuitable for this responsibility, a conclusion I find reasonable and fully supported. How then can one conclude that this new plan could have affected the balancing exercise engaged in by the same justice? A strict around-the-clock supervisory plan, such as is required here, is only as good as the supervisory sureties. The glaring weak link here is Ms. M. Her inclusion as a supervisor, necessary to the viability of the plan, lays bare why the new plan could not have affected the balancing exercise.
[117] The proposed home monitoring system does not rectify this problem. The efficacy of the system is dependent upon the same sureties, not on an independent entity. Thus, for blocks of time it too relies on a suitable surety, something absent here.
[118] To be a material change in circumstances, the newly proposed plan must be significant. It must call into question the continued validity of the detention reasons. As reviewed above, in my view, it does not. I find that the new release plan could not have affected the balancing exercise engaged in by the justice.
- Extortion charge
[119] The defence points to the withdrawal of the extortion charge in the Scarborough case as a material change in circumstances. I respectfully disagree.
[120] The Scarborough case is an 11 count information, one count of which was an extortion charge. The crime of extortion certainly is serious as marked by its mandatory penalty of life in prison: s. 346(1.1)(b). Some time after the Scarborough bail release order, the extortion charge was withdrawn for unknown reasons. The balance of the case remains.
[121] In my view, the withdrawal of one count in a separate multi-count case has no impact on the bail decision. It is not significant. The Justice of the Peace did not single out or emphasize the extortion count in any way in his reasons. Having regard to all the circumstances, including the reasoning of the Justice of the Peace, I find that this circumstance could not have affected the balancing exercise engaged in by the justice.
- Cocaine charge
[122] The defence also points to the withdrawal of the cocaine possession for the purpose charge earlier today as a material change in circumstances. I respectfully disagree.
[123] The Chatham cases now include 12 counts against A.C. in two informations. The charge of possession of a recognized hard drug, methamphetamine, for the purpose of trafficking remains along with a number of very serious firearms charges.
[124] In my view, the withdrawal of one count in two multi-count cases has little or no impact on the bail decision in this case. It is not significant. After hearing of this intended withdrawal, I re-read the detention decision of the Justice of the Peace. He did not single out or emphasize the cocaine count, indeed the drug charges generally, in any way in his reasons. His emphasis was on the loaded, prohibited handgun ready to fire. Having regard to all the circumstances, including the reasoning of the Justice of the Peace, I find that this circumstance could not have affected the balancing exercise engaged in by the justice.
- COVID-19
[125] I repeat my words in R. v. K.T.S., 2020 ONSC 2672, at paras. 121 and 122:
Without question, the ongoing COVID-19 pandemic is an extraordinary, frightful, and impactful event on the lives of everyone. People not only get sick from it, a small percentage die from it. There is no advanced warning of its attack on any particular person.
Also, without question, people in closed environments – prisons, cruise ships, and nursing homes, to identify the obvious – are at an enhanced risk to contract the virus simply because of the closed environment and the nature of the human-to-human transfer of the disease.
[126] A.C. obviously is in an enclosed environment – a detention facility - making him more vulnerable to contracting the disease.
[127] There is very little dispute that COVID-19 is relevant on the tertiary ground: see, e.g., R. v. Cain, 2020 ONSC 2018, at paras. 8 and 25.
[128] I also accept that in certain circumstances, COVID-19 can be relevant on the secondary ground: see, e.g. R. v. Cahill, 2020 ONSC 2171, at paras. 27-30 (health issues coupled with the nature of the criminal history took the accused “outside of being a substantial risk to reoffend”).
[129] The mere existence of COVID-19, however, is not an automatic release ticket. The significance of COVID-19 on the pre-trial release of a particular accused must be taken in the context of that case and that accused: R. v. Brown, at para. 42. The personal characteristics of the individual accused, most notably his or her age and health, must be assessed with any public safety concerns or concerns about the confidence in the administration of justice if the accused is released. This is a balancing exercise.
[130] Here, A.C. is a young man, age 29, and healthy. These personal characteristics coupled with the findings by the Justice of the Peace below of public safety concerns and confidence concerns lead me to the obvious conclusion that existence of COVID-19 in this case, with this accused, does not amount to a material change in circumstance. I find that this circumstance could not have affected the balancing exercise engaged in by the justice.
[131] Before leaving COVID-19, I must address its impact on proportionality. The Supreme Court in Myers, at paras. 50-51, emphasized the impact of the passage of time on the appropriateness or proportionality of the detention. In other words, judges must be alert to the possibility that the amount of time in pre-trial detention will nearly equal or exceed any likely sentence if the accused is convicted. Continued detention in such circumstances could erode public confidence in the administration of justice.
[132] Normal court operations of the Superior Court of Justice have been suspended since March 17, 2020. It is reasonable to infer that time to trial in this case will be extended but the length of the delay is very speculative at this stage. I am very much alert to this concern. In this case, however, A.C. faces serious time in prison if convicted. Given this factor, in my view, proportionality is not an issue now.
- Collective analysis
[133] I now must decide whether the new circumstances – the new plan, the withdrawal of the cocaine and extortion charges, and COVID-19 – assessed collectively, having regard to all the circumstances, could have affected the balancing exercise engaged in by the Justice of the Peace. I think not.
- Finding
[134] This new evidence, viewed individually and now collectively, fails to satisfy the fourth criteria. The evidence could not have affected the balancing exercise engaged by the justice below. In sum, the accused has failed to show cause to vacate the detention order.
ISSUE THREE: If the accused has shown cause to vacate the detention order, has the accused shown cause that his continued detention is not justified?
[135] Having failed to show cause to vacate the detention order, it is clear under St. Cloud, that I have no authority to address the issue of bail. Thus, I decline to do so.
Conclusion
[136] For the foregoing reasons, the application is dismissed.
Kirk W. Munroe
Justice
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
A.C.
Applicant
REASONS ON BAIL REVIEW
Munroe J.
[^1]: A.C. has a separate provincial offences information, 19-121, alleging a violation of the Cannabis Control Act, 2017. He is not in custody on this information.
[^2]: I recognize that both sister and Ms. M. were accepted as sureties in A.C.’s Scarborough case. This fact, however, carries little weight, because I was provided no reasons for this acceptance. Each case is unique. A proposed surety may be acceptable for one plan of release but not for another. I cannot and will not speculate. It is the defence burden in this case.
[^3]: Crown counsel also provided me with two earlier affidavits by Dr. Orkin that are similar to the one provided by the defence.