Court File and Parties

COURT FILE NO.: CR20-51-00BR DATE: 2020-05-07 ONTARIO SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION)

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JOSEPH MEDEIROS (Also known as JOSEPH DEMEDEIROS or JOSEPH (DE) MEDEIROS) Applicant

Counsel: Anthony Minelli, Counsel for the Crown, Respondent Elliott Willschick, Counsel for the Accused, Applicant

HEARD: May 6, 2020

The Honourable Mr. Justice C. S. Glithero

Reasons for Decision

[1] The applicant seeks a review, pursuant to s. 520 of the Criminal Code, of a detention order made on September 27, 2019 by a Justice of the Peace in Hamilton, Ontario, following a show cause hearing on that date. The applicant is charged that on or about the 24th day of September 2019 that he did by word of mouth knowingly utter a threat to kill Katrina Donna Hall, contrary to s. 264.1(1)(a) of the Criminal Code. The detention order was issued on the secondary grounds specified in s. 515(10) of the Criminal Code.

[2] The position of the applicant is that the application should be allowed and “granting the order of recognizance of bail”. Counsel for the applicant submits that the accused should be released without surety or conditions other than a requirement that he sign in with the Hamilton Police and report a residential address to them. The position of the respondent Crown is that the application should be dismissed, thereby upholding the detention order.

[3] The Superior Court of Justice is temporarily closed for in court hearings because of the current COVID-19 pandemic but is open to hearing urgent matters without an actual attendance in court. Counsel for the applicant has advised the court that the applicant is content that the matter be heard in his absence and accordingly, on consent, the hearing of this application proceeded by way of a recorded audio conference. Neither side wished to present any evidence, and both were content to rely on the transcript of the show cause hearing, together with a copy of the applicant’s criminal record which was referred to in the show cause hearing but not made an exhibit, together with their respective submissions.

Basis for a Review

[4] In R. v. St-Cloud, 2015 SCC 27, 2015 S.C.C. 27, directed that a reviewing judge under s. 520 of the Criminal Code does not have an open-ended power to review the detention order and that it will only be appropriate to intervene if the justice erred in law, or if the impugned decision was clearly inappropriate such as if it placed excessive or insufficient weight on a relevant factor, or if there is new evidence tendered demonstrating a material and relevant change in the circumstances of the case. In respect of this last basis for a review, the court held that such new evidence must meet the four prong Palmer test, but that those four criteria must be modified or relaxed so as to be reasonably applied in the context of bail considerations which are often made very early in proceedings.

[5] Here, the applicant submits that the detaining justice erred in law in several respects. Firstly, the applicant submits that the justice erred in law by finding that it was a reverse onus situation at the show cause hearing. The Justice of the Peace observed at one point during the proceedings that it was a reverse onus situation. The Crown advised him on two different occasions that it was a reverse onus situation. The issue of onus is not mentioned in the actual ruling. The Crown also advised the justice at the outset of the hearing that it was a s. 524 of the Criminal Code matter.

[6] The show cause hearing was by a recorded telephone conversation and the transcript reflects some inaudibles and other occasions when it seems the various participants had difficulty hearing each other and sometimes interrupted each other. The basis upon which the justice concluded it was a reverse onus situation is not clear. The Crown, initially at least, relied on a fail to appear in court charge, to which the defence countered that the accused was in jail at the time he allegedly failed to appear in court and the charge should be withdrawn. The Crown allowed that could be the case but did not confirm that it was. In spite of the lack of clarity in the record, I am satisfied that it was in fact a reverse onus application by reason of application of s. 524(4) of the Criminal Code in that it was clear the accused had been arrested for having contravened a term of an earlier recognizance of bail granted on this charge. Accordingly, the justice was required under ss. 4 to order the accused be detained unless the accused, having been given a reasonable opportunity, showed cause why his detention was not justified.

[7] Secondly, the applicant submits that the justice erred in law as finding detention to be required on the secondary grounds by reason of public safety, whereas the charge was only a threat to cause the death of one person. It seems to me that argument is defeated by the very wording of s. 515(10)(b) of the Criminal Code which specifically includes the victim of an offence as being part of the concern for the protection or safety of the public.

[8] Thirdly, the applicant alleges the justice erred by relying on the Crown’s position as a basis for detention, implying that the justice in effect delegated his decision to the Crown. I do not read the reasons that way. What the justice indicated was that he was taking into account the nature of the charges “based on the Crown’s position”. As to the nature of the alleged offences, the justice had only the Crown’s summary of the events, and obviously had to take that into account in reaching his decision.

[9] Lastly, it is submitted that the justice erred in law by failing to make reference to St-Cloud, R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 or R. v. Tunney, 2018 ONSC 961, [2018] O.J. No. 767. I agree he did not do so by name but does refer to the “ladder principle”. This reference, although meagre, seems to reflect an awareness of the recent pronouncements from the Supreme Court of Canada. Justices deal with bail matters on a daily basis. In my opinion they are not required to state the law in each decision given.

[10] As to the second basis for a review directed in St-Cloud, I do not think there to have been excessive weight placed on any factor, but I have concern as to insufficient weight being applied to one factor that seems to be the result of a misunderstanding by the justice as to amount of time the accused had already spent in custody. I choose to deal with that in more detail under the “new evidence” ground.

[11] In terms of new evidence, the applicant relies on the circumstances of the COVID-19 pandemic, as well as the subsequent withdrawal of the fail to appear charge, and on the passage of time when considered in light of the likely sentence that would result from a conviction.

[12] The detention order resulting from the show cause was made within days of the recognition by the Government of Ontario of the seriousness of the virus threat in this province. Since the middle of March 2020, the nature and extent of the virus infection has increased dramatically with ever increasing numbers of persons infected, and tragically, the number of deaths from the virus infection continuing to grow. It has become the mantra of the leading health experts, both for the country, for the province, and indeed through most of the world, that distance spacing is the single most important thing a person can do to protect himself or herself, and others. At the time of this review, this province has announced the beginning of some relaxation of the restrictive measures implemented to combat the spread of the virus but has made clear that physical distancing remains a central and important feature for the safety and protection of the individual as well as the public. There is no evidence before me on this record as to the conditions in the detention centre, but I take judicial notice of the physical inability of inmates in detention centres to stay two metres apart from one another, and further take judicial notice of the well publicized understanding that such inability to physically distance from others puts a person at greater risk to contract the virus, and/or to spread it to others.

[13] In my opinion the progression of the COVID-19 virus has brought about another material and relevant change in the circumstances of this and many other cases. Our Chief Justice has ordered that there will be no jury trials until September of this year, at the earliest, and that there will be no non-jury trials in this court until July 6, 2020 at the earliest, and that is subject to consideration of circumstances as they subsequently unfold. There will be a backlog of criminal cases that were unable to be tried in this court because of the virus between March 15, 2020 and whenever in court hearings resume. This passage of time is particularly important in cases where the range of likely penalty for the offence is such that a detained person could end up spending more time awaiting trial than he would by way of sentence if convicted.

[14] Secondly, in terms of new evidence, the charge of fail to appear was subsequently withdrawn as it was shown the accused was in custody on the date he failed to appear in court. The reasons for detaining the accused are not particularly clear as to the role that the fail to appear charge played in the ultimate decision, but clearly it was on the table with counsel disagreeing as to its impact.

[15] Another factor relates to the fact that the justice relied on the understanding that the applicant was “on the lamb” from November 20, 2019 until the 20th of March 2020.

[16] As clarified before me by counsel, the applicant was originally released on a recognizance on September 24, 2019 and remained on bail until November 20, 2019 and has been in custody ever since. That misunderstanding on the part of the justice is understandable in that the transcript from the show cause hearing is anything but clear in respect of this and some other aspects of the case.

[17] For these reasons I am of the view that I have the authority to conduct a review of the detention order and to interfere with it if satisfied it is appropriate to do so.

Circumstances of the Alleged Offence

[18] The Crown summarized the circumstances of the alleged offence, with the consent of the applicant, and indicated that Ms. Hall contacted the police on October 18, 2019 indicating that the applicant had threatened her, threatened to murder her and that they had had ongoing issues since shortly after beginning their intimate relationship and that she was afraid for herself and for the safety of her children. The Crown indicated that the complainant specifically claimed that on September 24, 2019, while she attempted to change a baby’s diaper, the accused slapped her hand away, an argument ensued and that the accused appeared to believe the complainant was being loud in her protestations, through an open window, so as to attract attention and that as a result he threatened that he would murder her. It is alleged that she further told the police that on numerous occasions the applicant had told her he had people watching her, that her phone was tapped and that he did not have to lift a finger in order to harm her or the people around her. She appeared to the police to be visibly shaken and distraught and the charge was laid.

[19] She also reported that the accused has grabbed her by the hair and threatened to hurt her kids if she left the bedroom during one occasion while she was pregnant. She further alleged that on September 24, 2019 he had thrown half of a hotdog at her face. She advised the police that she asked him to leave the house on September 24, 2019, as she had often previously, but he refused, and that he indicated in order to get him out of the house she would have to sign off all rights to the child, and that he also accused her of being mentally ill. Apparently, the applicant was arrested the same day that the complainant spoke to the police.

[20] A day later, October 19, 2019, the complainant and another individual came to the police and indicated that while cleaning out the residence they found a rifle and a lot of knives and turned them over to the police. The transcript indicates that the officer says there was a pellet rifle that was proven safe. That appears to be the rifle that was turned over to the police. Ms. Hall advised the officer that she had never seen these items before and that the only person who would have access to have put them in the house would be the applicant.

Circumstances of the Applicant

[21] Mr. Medeiros testified that he was 55 years old, that his last job was as a cook and that he last worked about a year and a half ago and that since then he has supported himself on ODSP for a TMJ condition which results in much pain to his jaw. He was asked where he would go to live if he was released and indicated that he would go to Hamilton first and then to Collingwood. When asked why there was no one there to bail him out, he replied that he hadn’t asked anybody and that he never knew nothing about it, apparently referring to the show cause hearing. He agreed he was on probation with a term to have no contact with the complainant, that he was prepared to abide by that condition and would be prepared to sign in at a local police station if released. He indicated that he thought he would be able to finance a $500 penal sum.

[22] On cross-examination, Mr. Medeiros admitted that his earlier bail recognizance involved a house arrest condition and that within 20 days of being released he violated that condition by leaving the house without his surety and in contravention of the term of the recognizance. He claimed that he went to a Shoppers Drug Mart to drop off a parcel mistakenly delivered to the house and to pick up medication.

[23] Mr. Medeiros has a criminal record. He was convicted of break, enter and theft in 1984, mischief in 1995 and in December of 1996 was convicted of attempted murder, use of a firearm during the commission of an offence, possession of an unregistered restricted weapon and pointing a firearm, for which he was sentenced to a total of 18 years, which was reduced on appeal to 17 years.

[24] He was in custody until April of 2008 when he received statutory release. In February 2012 he was convicted of three counts of criminal harassment for which he received six months on each charge consecutive and consecutive to the unexpired portion of the 1996 sentence. On that same date in February of 2012 he was convicted of 27 other charges of criminal harassment and received six months on each, concurrent to each other and to the other sentence, and on the same date was convicted of two charges of possession of a Schedule 1 substance and received a sentence of four months on each charge concurrent to each other and concurrent to the other sentences imposed that day. On May 3, 2012 he was recommitted for violating his statutory release.

[25] Additionally, the day before the show cause in this case, the applicant pled guilty and was convicted of the offence of breaching his recognizance of bail in relation to this charge, for which he was sentenced 30 days, served by way of 20 days of the time he has been in custody since November 20, 2019.

Plan for Release

[26] The plan for release put forward before me was neither embellished or improved upon since that advanced at the show cause hearing. I have no evidence as to where the accused would live, as to whether there is any surety available, or any other details as to what he would do with himself if released.

Applicable Principles

[27] On a bail review, s. 520(7)(e) of the Criminal Code puts the onus on the applicant to show cause why the application should be allowed.

[28] In several recent cases, the Supreme Court of Canada has emphasized the importance of accused persons receiving bail. In Antic, at para. 29, the court held that “release is favoured at the earliest reasonable opportunity and … on the least onerous grounds”.

[29] In St-Cloud, at para. 25, the Supreme Court held that “in Canadian law, the release of the accused person is the cardinal rule, and detention, the exception”.

[30] In R. v. Myers, 2019 SCC 18, 2019 S.C.C. 18, the Supreme Court of Canada dealt with the detention review procedures set forth in s. 525 of the Criminal Code, rather than the bail review situation that is before me. Nevertheless, principles enunciated in that case are applicable before me. In the first paragraph the court indicated that release at the earliest opportunity and in the least onerous manner was the default presumption in our law and that pretrial detention was the exception, not the rule. At paragraph 50 the court directed that a detention review judge should also consider whether the time already elapsed in custody, or anticipated to elapse while still in custody, before trial, and whether such time is proportionate to the circumstances of the offence, and in the following paragraph went on to require a detention review judge to consider whether the time spent in detention would approximate or even exceed the sentence likely to be imposed upon a conviction.

[31] These principles have been recognized by the introduction of s. 493.1 of the Criminal Code which requires a judge to give primary consideration to the early release of the accused on the least onerous conditions which are practically appropriate in the circumstances, including those of the accused.

Discussion

[32] As I have noted, Myers dealt with detention reviews rather than bail reviews, but in my opinion that concern arising out of the amount of time in detention compared to the length of sentence likely to be imposed is applicable in the circumstances of this case. On the other hand, the circumstances surrounding this charge, together with the history of the applicant, raised concerns as to the safety of the complainant and her children. Section 515(10)(b) of the Criminal Code applies where the detention is necessary for the protection or safety of the public, including the victim, having regard to all the circumstances including any substantial likelihood that the accused will commit a further offence if released.

[33] I have no evidence as to whether the serious offences of which the accused was convicted in December of 1996 related to an intimate partner or not. Similarly, I have no evidence as to whether the 30 charges of criminal harassment in 2012 related to an intimate partner or not. Nevertheless, I have a 55 year old man who 24 years ago was convicted of serious offences of violence and weapon offences, is now charged with threatening to kill the complainant, and is alleged to have had several knives and a pellet rifle in the house where apparently the two of them lived.

[34] I also remind myself that these allegations at this point are simply that and as the Crown’s case is disclosed in the record, appears to rely solely on the evidence of the complainant.

[35] I also take into account that this man was previously released on a recognizance with a house arrest term on this charge and breached the recognizance within three weeks of entering into it. I also take into account that such breach apparently did not involve any allegation of contact with the victim.

[36] I take into account that Mr. Medeiros has been in custody since November 20, 2019, approximately five and a half months, although 20 days of that time was in service of the breach of recognizance charge. Accordingly, he has approximately five months in custody on this charge. On a sentencing it seems to me he would likely receive Summers credit in the amount of 1.5 to 1 which would equate to approximately seven and a half months credit for pre-sentence time served., and that he might well receive other credits relating to the conditions of detention. During submissions, it was indicated to me that the Crown’s proposed range of sentence, if the accused were to plead guilty, was one of four to six months, but that position was advanced if there were to be an early plea.

[37] Mr. Medeiros is not prepared to plead guilty, I am advised, nor should he if he feels he is not guilty. Under the current pandemic conditions, it appears clear that he would not have a non-jury trial for another two months, at the earliest, and that is far from certain in that the July 6, 2020 restart date is tentative, subject to extension is circumstances so warrant, and additionally, that he will be but one case out of many undoubtedly caught up in the backlog of cases resulting from the COVID-19 trial closure.

[38] This is not a case where I have any evidence that the applicant is a homeless person, that he has no family, that he has no friends, that he has no perspective sureties, that he has no place to live if released. The plan of release is without any detail.

[39] On a bail review, pursuant to s. 520 of the Criminal Code, the evidence is on him to show cause. Rather than doing so, he in essence is taking the position, through counsel, that he is not pleading guilty, that he has already served the equivalent of any sentence he would receive if convicted for the offence, and that accordingly the court should just release him without any terms other than to sign in with the police and give them an address, with the knowledge that he is already on a probation order which is sufficient to keep him away from the complainant.

[40] Given the concern for the safety for the complainant stemming from the circumstances outlined to the court, his record for serious violence, and for harassment, and given that he breached the term of his earlier recognizance on this very charge, in my opinion, the absence of any particularized plan of release constitutes a failure to show cause why he should not be detained. I do not think it reasonable to simply turn this man out into the community without any place of residence, without a surety or other suggested means of supervision.

[41] For these reasons, this application is dismissed. Because of my concern for the amount of time he has been in custody, and that he will be in custody before trial, my dismissal of this application is without prejudice to a further application being made, supported by an appropriate plan for release, and leave is granted to do so in less than the 30 days otherwise prescribed by s. 520(8) of the Criminal Code.

C.S. Glithero J. Date: May 7, 2020

COURT FILE NO.: CR20-51-00BR DATE: 2020-05-07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JOSEPH MEDEIROS (Also known as JOSEPH DEMEDEIROS or JOSEPH (DE) MEDEIROS) Applicant reasons for decision C.S. Glithero J. Released: May 7, 2020