Court File and Parties

Court File No.: 20-00000139-00BR Date: 2020-05-08 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Charles Mustard, Applicant

Before: A. J. O’Marra J. (Orally)

Counsel: Karen Simone, for the Crown Robert S. Richardson, for the Applicant

Heard: May 6, 2020

Ruling on an Application for Bail

[1] The applicant Charles Mustard is charged with first degree murder in the death of Barbara Brodkin which occurred in March 1993. Mr. Mustard was arrested in October 2018 as a result of a DNA analysis of the deceased’s fingernail clippings which yielded a DNA profile from which Mr. Mustard could not be excluded. He seeks judicial interim release pursuant to s. 522(2) of the Criminal Code . On the application, Mr. Mustard bears the burden, on balance of probabilities to show cause why his detention is not justified under the criteria set out in s. 515(10):

(a) to ensure his attendance in court;

(b) for the protection and safety of the public; and

(c) to maintain confidence in the administration of justice.

[2] The hearing took place by teleconference due to the closure of the Superior Court of Justice by order of the Chief Justice, March 15, 2020 because of the Coronavirus (COVID-19) pandemic as declared by the World Health Organization, March 11, 2020.

Nature of the Case

[3] Ms. Brodkin lived in an apartment with her six year old son in Toronto. She died in her bedroom some time between the late evening hours of March 18 and the morning hours of March 19, 1993 as a result of a single stab wound to her heart. Ms. Brodkin was a low level drug dealer who sold marijuana from her apartment. The Crown’s theory is that Ms. Brodkin was choked and stabbed in the course of a robbery of her drugs and money. Ms. Brodkin’s body was discovered in the morning of March 19 by her six year son. Her body was found in the bedroom, partially in the closet where she was known to keep an antique box containing the drugs and money. The antique box in which she kept her “stash” was missing.

[4] The applicant was known to the deceased and would on occasion purchase drugs from her. The investigation in 1993 focused on other suspects including Ms. Brodkin’s ex-husband, now deceased, but no arrests were made. The case went cold for 25 years.

[5] In 2017 the Cold Case Unit of the Toronto Police Service Homicide Squad reviewed the case. As a result of advancements made to the techniques of DNA analysis over the past 25 years, the Centre of Forensic Science tested Ms. Brodkin’s the preserved fingernail clippings for the presence of DNA. A significant and rich source of foreign DNA was found under the fingernails from both hands, which produced a DNA profile. The profile was submitted to the DNA databank for comparison, which resulted in identifying the applicant as a contributor of the profile, with the statistical probability of one in one trillion persons.

[6] On December 2, 2019, after the preliminary inquiry, the applicant was committed to stand trial on the charge of first degree murder. He has a trial date set for January 2021.

Background of the Applicant

[7] Mr. Mustard is 65 years of age. He is a Canadian citizen. He was born and raised in Toronto. He attended University in Thunder Bay where he received a degree in Physical Health and Education and a Bachelor of Education. He taught elementary school in northern Ontario for four years and one year in Thornhill. He was married, now divorced and has two adult children with whom he is estranged. He has five sisters and he has little contact with any family members.

[8] Mr. Mustard has a criminal record which consists of convictions for 10 sexual assaults, sexual interference, and sexual exploitation dating from 1993 to 2007. The victims of the offences involve a daughter and other family members. His last offence noted on his criminal record was in 2011 for theft under $5,000.00.

[9] After teaching for four or five years he moved from a number of jobs including working in construction and various sales positions. At the time of his arrest in 2018 he had been living in subsidized housing in Toronto in receipt of Ontario Disability Support Program payments. Prior to receiving ODSP as noted he held various jobs and he received social assistance intermittently.

[10] He is detained at the Toronto South Detention Centre at present pending trial. On his application he has raised as a serious concern the potential impact of the COVID-19 virus and his present detention given his age and health status. He has been diagnosed as having borderline diabetes and receives a diabetic diet. He has degenerative arthritis, hearing loss and degenerative eyesight. He has no ability to socially distance himself from other inmates and staff in the institution.

Plan of Release

[11] Mr. Mustard has no sureties to propose or any residence to go to if released. However, he has been approved for supervision by the Toronto Bail Program. Under the plan of release he would reside at an address approved by the TBP and report to them as required. If released he would be initially directed to a shelter by the TBP and reside there until he can secure his own housing. He qualifies for ODSP and he would apply immediately to be reinstated to further his prospect of obtaining independent housing. He would not apply for any travel documents. He would report to the TBP and as well directly to the officer in charge or designate at the Toronto Police Service.

COVID-19

[12] The applicant relies on the affidavit of Dr. Aaron Orkin, physician and epidemiologist whose opinions have been accepted in numerous bail applications and bail reviews that insufficient social distancing in incarcerated populations that have higher incidence of chronic illnesses makes it extremely likely that COVID-19, a highly contagious virus that can lead to serious illness and death, will occur in those custodial facilities as a consequence of congregate living conditions.

[13] The only way to substantially reduce the spread of the virus amongst incarcerated populations is to reduce the number of persons in these settings and to maintain social distancing to “flatten the curve” in the greater community.

[14] Recently, there have been a number of inmates who have tested positive for COVID-19 at the TSDC. Further, the Ontario Correctional Institute, another facility was temporarily shutdown because of an outbreak of the contagion with more than 60 inmates having tested positive. The OCI inmates have been transferred to the TSDC, but they are being held in a separate area from those under remand at the detention centre.

[15] In Regina v. Taufiq Stanley, 2020 ONSC 2665 the circumstances of the OCI inmates transferred to the detention centre, and the application of “best practices” as employed by the correctional authorities at the TSDC were discussed, from which I accepted the measures taken have served to decrease the number of inmates held in custody by more than 30 percent and by the institution of best practices to reduce exposure of the inmates and staff to the virus.

[16] I am mindful that the community at large is required to socially distance itself to limit the spread of the virus, to “flatten the curve”. Further, I take notice of reports that the segment of the population most at risk for intensive care admissions and death are persons 60 years of age and older, particularly those with comorbidities.

Section 515(10) Grounds

[17] In the assessment as to whether the applicant is granted bail it must be borne in mind that he is presumed innocent, and that he has a right to reasonable bail. Further, as noted in Regina v. St-Cloud, 2015 SCC 27 at para. 70, in Canadian law the release of accused persons is the cardinal rule and detention, the exception.

(i) The Primary Ground, Section 515(10)(a)

[18] The primary ground for detention is based on an assessment of whether an accused will if released pending trial attend court as required and to have the charges dealt with in accordance to the law.

[19] Here the Crown contends that there is a risk Mr. Mustard will not attend court as required because he is charged with first degree murder with the prospect of life imprisonment on conviction. His release plan does not contain any daily monitoring or supervision to ensure compliance.

[20] Counsel for the applicant notes that he has no history of failing to appear in court or non-compliance with any previous releases or other orders relating to the serious charges he has dealt with in the past. Further, he has been supervised by the Toronto Bail Program in the past and he has been compliant – which was one of the considerations of the Toronto Bail Program to offer to supervise him again.

[21] I am satisfied that the applicant has satisfied the primary ground. He has a history of compliance in appearing in court as required. He has been supervised in the past by the Toronto Bail Program, without any non-compliance. He is a Canadian citizen and a life-long resident of Ontario. In my view, at age 65 without financial resources, other than potentially ODSP if reinstated, he does not present as a flight risk.

(ii) The Secondary Ground, Section 515(10)(b)

[22] Detention of an accused under s. 515(10)(b) is justified where it is necessary for the protection or safety of the public, including any victim or witness having regard to all of 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.

[23] In Regina v. Manasseri, 2017 ONCA 226 at para. 85-88, Watt J.A. set out the secondary ground considerations:

[85] Three brief points should be made about the secondary ground.

[86] First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct ("commit a criminal offence") or an interference with the administration of justice.

[87] Second, in connection with the specified circumstances encompassed by the clause "including any substantial likelihood that the accused will, if released from custody, commit…", the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.

[88] Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.

[24] The Crown agrees that the applicant’s criminal record is dated, however it contains substantial sentences for crimes of violence. In 2007, he received a sentence of 3 years with presentence custody credit of 26 months and 3 years’ probation for a number of sexual assaults. He has 12 convictions for crimes of violence, all against females, as was the victim in this case.

[25] Counsel for the applicant submits that his last serious offence was committed over 14 years ago. His victims, while young females were family members. Moreover, there is no indication that there was any sexual aspect to the homicide. Indeed, it is the Crown’s theory of the case that the victim’s death occurred in the course of a robbery for her drugs and money.

[26] The Crown has argued that he presents as a risk to the public due to the lack of daily supervision and cited as a concern an expression by his ex-wife and girlfriend that they are in fear of him, both of whom testified at the preliminary inquiry. Counsel for Mr. Mustard pointed out that while they may have expressed some concern for their safety at that time, it is not in evidence at the preliminary inquiry. Further, he questions as to just how realistic such a concern may be in that the applicant has had no involvement with either his ex-wife or ex-girlfriend for over 20 years.

[27] In my view their apprehension, however expressed by his ex-wife and girlfriend is not a material consideration in the overall assessment of all the circumstances given the nature of the case.

[28] The issue is whether there is a substantial likelihood of the applicant committing a criminal offence on release. I consider that he has been compliant with all court releases in the past and the gap in time from his past serious offence.

[29] The Crown sought to rely on charges laid in 2013 from which he was further charged with fail to comply offences relating to complying with a term to apprise the Toronto Bail Program with his address. The charges were either dismissed or withdrawn by the Crown. In my view, the fact that he was acquitted and the other charges withdrawn is not a basis to hold that there is a substantial likelihood of him committing an offence.

[30] While the applicant has a criminal record, the serious offences occurred between 1993 and 2006. There is no evidence that the offence at issue was sexually motivated. Further, his past serious crimes were against female family members with whom he no longer has any contact. To hold that there is a substantial likelihood of him committing a criminal offence or offences would be no more than speculative. As noted in Manasseri, it must be significantly likely that he would commit an offence, not “a mere possibility”.

[31] In consideration of the 14 years since he committed a serious offence and his history of compliance, when he had been charged with serious offences, his continued detention is not necessary for the protection or the safety of the public. Further, the release plan does require continuing contact with and direction by the Toronto Bail Program. I am satisfied that the secondary ground concerns have been met.

(iii) The Tertiary Ground, Section 515(10)(c)

[32] Under s. 515(10)(c) detention is justified if it is necessary to maintain confidence in the administration of justice having regard to all of 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.

[33] In Regina v. St-Cloud at para. 87 the court noted that the tertiary grounds are conceptually separate and distinct basis for detention pending trial. It is not a residual ground or one that is only justified in rare or exceptional cases.

[34] It is also important to bear in mind, that there is no category of cases or charges that are exempt from the bail provisions. The fact that someone is charged with murder is not a reason in and of itself to detain under the tertiary ground.

[35] In Regina v. B.S. 2007 ONCA 560 at para. 10 Winkler C.J.O. stated:

The tertiary ground continues to apply to all persons seeking judicial interim release, whether charged with relatively minor, non-violent offences or whether charged with murder. In a practical sense, it will not often be a factor in most cases, but as the nature of the offence and surrounding circumstances become more serious, the consideration of the tertiary ground will become more relevant. That is not to say that the tertiary ground operates to effectively dictate the detention of all persons charged with murder. Rather, the judge must analyze the combined effect of the four factors set out in the subsection, as explained in E.W.M ., in coming to a determination on the tertiary ground.

[36] In Regina v. St-Cloud several additional principles were set out to guide the inquiry under s. 515(10)(c):

• the four circumstances cited in 515(10)(c) are not exhaustive

• detention is not automatic where the four circumstances support such a result

• the court must consider all circumstances paying particular attention to the four listed circumstances

• whether the crime was explainable or unexplained it is not a criterion in the analysis

• no single circumstance is determinative

• the court must consider the combined effect of all the circumstances to the case to determine whether detention is justified

• in balancing all the relevant circumstances, the ultimate question is whether detention is necessary to maintain confidence in the administration of justice.

[37] The court also stated that to answer the question the court must adopt the perspective of the public “that is the perspective of a person properly informed about the legislative provisions, Charter values such as the presumption of innocence, right to reasonable bail and the actual circumstances of the case – a person who is not a legal expert and not able to appreciate the subtleties of defenses which may be available to the accused.

[38] In addressing the four non-exhaustive factors no one factor is determinative. Consideration of the combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain public confidence in the administration of justice. (See Regina v. Mordue, 2006 ONCA 709).

[39] The applicant concedes, in the assessment that three of the four factors are at maximum force in this case. First degree murder is a serious and grave offence which calls for a term of life imprisonment on conviction. Counsel contends however, that the strength of the Crown’s case is limited. The case is wholly circumstantial, entirely reliant on the interpretation of appropriate inferences that might be drawn from otherwise non-incriminating forensic evidence, namely the presence of an “unidentified DNA source” with his profile found under the deceased’s fingernails.

[40] The expert forensic scientist called on the preliminary inquiry admitted that the DNA analysis from which she described as a “rich source”, could not determine:

1. The specific bodily substance of the foreign DNA source, that is whether from skin cells, semen or nasal fluid, although she could rule out blood as there was no staining on the samples examined.

2. Whether the foreign DNA was transferred to Ms. Brodkin’s fingernails from direct contact with the specific DNA source, or indirectly through contact with an intermediary object with the DNA source on it.

3. How or at what location the DNA transfer was effected except to say it was likely transferred during or within 24 hours preceding the murder of Ms. Brodkin.

[41] Counsel submits that there are a number of other reasonable explanations or inferences upon which a trier of fact could conclude as to when or how the DNA source was located under her fingernails, other than at the time or as a result of the homicide.

[42] The Crown contends that a reasonable conclusion is that the DNA source was under her fingernails as a result of a struggle with the applicant fighting him off as he confined her, choked her and stabbed her in the course of the robbery. With respect to the DNA the Crown submits:

1. There was a rich source of foreign DNA found under the victim’s fingernails on both her hands.

2. Apart from the DNA source that the applicant cannot be excluded from, there was no other DNA source under the victim’s fingernails.

3. While DNA cannot provide a time, date or place of exact transfer, such a rich source would not be expected to be present after a period of 6-24 hours as it deteriorates over time through daily activities like washing hands.

4. The Crown’s theory that Ms. Brodkin fought off her attacker could explain the transfer of the applicant’s DNA to her fingernails.

[43] The Crown submits that other evidence available supports its theory of a homicide during a confinement, a struggle and robbery:

• In 1993 Ms. Brodkin’s ex-husband, now deceased, told the police that his wife was “feisty” and that she used her long fingernails in fights with him.

• In 1993 the applicant was living in Barrie and his wife recalled that during a weekend in March 1993 he left for a number of days and she did not know where he had been. At the time they were also in some financial distress both being out of work.

• Ms. Brodkin died from a fatal stab wound and the pathologist found evidence of strangulation due to significant injuries to her neck.

• Ms. Brodkin kept her money and drugs in an antique box in her bedroom, which was never found after the homicide.

• In 1998, an ex-girlfriend, Consuelo Charles testified that the applicant came to her home to give her jewelry and at that time while crying he told her that he did a really bad thing and would be going away for a long time.

• A friend of the deceased, Steven Burns knew of the applicant as a customer who bought drugs from her at her apartment in 1993.

[44] Counsel for the applicant states that none of the additional evidence referenced by the Crown connects him to the homicide. The comments attributed to him in 1998 could well have been in reference to the serious matters he was facing at that time.

[45] Counsel referenced the evidence of the deceased’s six year old son who told police that he woke up on the evening of March 18, 1993 and said he saw a man with his mother who was tall and skinny with long hair to his shoulders. There was evidence given by Mr. Mustard’s ex-wife and the deceased’s friend Steven, who knew of Mr. Mustard, and both described him in 1993 as balding with short hair.

[46] Counsel further submits that the identity of Ms. Brodkin’s killer is a live issue, with inherent caps in the forensic evidence and the underlining assumptions in the Crown’s theory. Proof beyond a reasonable doubt is not a foregone conclusion in this case.

[47] He points out that the preliminary inquiry of justice on committing the applicant to stand trial stated, in conclusion: “I’m not unmindful of the many potential weaknesses of the Crown’s prosecution of this charge, but those are a matter for the jury to address and determine at trial.”

[48] It is noted in Regina v. St-Cloud at para. 88 that if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim was vulnerable, pretrial detention would usually be order.

[49] In this instance, I cannot say that the Crown has an overwhelming case. While the DNA evidence is compelling, it is not in and of itself conclusive. Notwithstanding, the Crown appears to have a strong case, although there are certainly triable issues to determine at trial.

[50] In St-Cloud as noted, even where the four factors have been met, detention is not automatic, and they should be considered in combination with any other relevant factor. At this time, the presence of the COVID-19 pandemic is a factor to be considered.

[51] In Regina v. Rajan, 2020 ONSC 2118 at para. 69-70:

[69] …The traditional grounds for the imposition of tertiary ground detention expressed in Hall , Mordue and St-Cloud as quoted above continue to militate towards detention. However, the threat of the virus pulls strongly in the other direction, towards release. In the end, the threat, if not the actuality of COVID-19, goes a long way to cancelling out the traditional basis for tertiary ground detention.

[70] The Canadian public understands the momentous nature of this crisis and would be greatly concerned for the health of inmates and staff in institutional settings. In the public’s mind, the real and tangible threat of contracting the virus may well supplant the otherwise negative reaction to the release of an accused person. The public is not short-sighted but would look at the long-term reputation of the administration of justice. In the face of the pandemic, bail release, in the absence of primary or secondary ground concerns, may well not shake the confidence of the public.

[52] Mr. Mustard is in an at risk age group, subject to the most serious consequences if he is exposed to the virus. The only method of avoidance where there is a no vaccine or prophylactic is social distancing. That he cannot do effectively despite the best efforts of the detention centre authorities. As reflected in the fact that inmates and staff have tested positive for the virus.

[53] Mr. Mustard presents what might be called a porous plan of release. He has no sureties. He has no fixed residence at present. He has no other viable release plan, other than with the assistance of the Toronto Bail Supervision Program to supervise him and find him a place in a shelter – another congregate setting subject to the same COVID-19 virus transmission concerns. It is a setting in which he may not fair any better. Indeed, he may be in some ways more exposed due to the constant movement of persons in and out of shelters. Be that as it may, he will have a greater ability to socially distance himself as he deems necessary, by freedom of movement, of which he has none in the present circumstances. While it is not ideal, it is a better alternative, and one in with keeping his right to reasonable bail. Further, he will have an incentive to obtain more independent housing in order to assume personal responsibility for social distancing in this age of COVID-19 pandemic.

[54] In my view, a reasonable member of the public properly informed about Charter values, the presumption of innocence, the right to reasonable bail, the circumstances of the case, and background of the applicant in the context of the COVID-19 pandemic crisis, would agree that his detention is not necessary to maintain confidence in the administration of justice.

[55] On balance, in consideration of all the circumstances, I am satisfied that his release would not bring the administration of justice into disrepute.

[56] Mr. Mustard shall be released into the supervision of the Toronto Bail Supervision Program on the following terms:

1. Report to the Toronto Bail Supervision Program forthwith upon release, and thereafter as required, but not less than twice per week.

2. Reside at an address approved by the Toronto Bail Program and not move from that address without obtaining prior approval for a new address from the Toronto Bail Program.

3. Notify the Officer in Charge (OIC) Det. Sgt. Henri Marsman or designate of the Toronto Police Service of your address in writing within 24 hours of your release.

4. Report to the OIC Det. Sgt. Henri Marsman or designate not less than twice per week.

5. Notify the OIC Det. Sgt. Henri Marsman or designate of the Toronto Police Service of your address in writing within 24 hours of any change of your address.

6. Reside at an address approved by the Toronto Bail Program and not move from that address without prior written approval for a new address from the Bail Supervision Program.

7. Attend and actively participate in any programs as directed by the Bail Supervision Program and sign all forms necessary for the Bail Supervision Program to monitor your progress.

8. Remain in the City of Toronto, Ontario.

9. Not to apply for or possess a passport or any other travel permits or documents.

10. Not to have any contact directly or indirectly with Marilyn Murray, Consuelo Charles, or Steven Burns.

11. Not to possess any firearms, weapons, or imitations thereof.

[57] Specific terms and contact information shall be set out in the release order to be executed in this matter.

Released: May 8, 2020 A. J. O’Marra.