R. v. Wright, 2020 ONSC 2979

Court File and Parties

COURT FILE NO.: SCJ-1087-19 DATE: 2020-05-14 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Robert Parsons/Jody Ostapiw, Counsel for the Respondent Respondent

• and -

ROBERT STEVEN WRIGHT Applicant P. Berk Keaney/Michael J. Venturi, Counsel for the Applicant

HEARD: May 4 and 5, 2020 GAREAU J.

REASONS FOR DECISION ON JUDICIAL INTERIM RELEASE APPLICATION

Background

1The applicant is charged with second degree murder in an indictment preferred by the Attorney General of Ontario on August 9, 2019. The applicant was originally charged with first degree murder, but the charge was reduced as set out in the preferred indictment.

2An application for release by the applicant was previously brought and heard by me on three days in February 2019. In a decision released by me on March 27, 2019, the applicant was detained in custody on tertiary grounds pursuant to section 515(10)(c) of the Criminal Code of Canada.

3The applicant has renewed his application for release from custody in an application dated April 6, 2020. This application is not based on alleged errors in my decision but rather on a material change of circumstance, namely the COVID-19 pandemic and two new sureties, the applicant’s parents, who were not offered as sureties in the original bail application.

4The bail hearing before me was conducted by teleconference with the consent of the applicant, Robert Steven Wright. There was also agreement between counsel that the evidence that I heard on the first application for bail on February 19, 20 and 21, 2019 would apply to the second application for bail. This avoided a duplication of the evidence that this court has already heard and considered as set out in its March 27, 2019 decision and also avoided unduly protracted proceedings in the second application for bail.

5The background arising from the charges against Mr. Wright is fully detailed and summarized in my decision earlier released as R. v. Wright, 2019 ONSC 1598. I do not intend on repeating this background but indicate that I adopt paragraphs 4 to 20 inclusive in my previous decision and apply it as the background applicable to the renewed application for judicial release brought by the applicant.

6In the previous decision on bail, the applicant was detained on the tertiary ground under section 515(10)(c) of the Criminal Code of Canada. The primary ground of detention was not in play, and I indicated in my decision that I was not satisfied that the applicant should be detained on the secondary ground. Therefore, on this application for bail this court is considering only whether the detention of the applicant in custody is necessary on the tertiary ground.

7Section 515(10)(c) of the Criminal Code reads as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(c) If the detention is necessary to maintain confidence in the administration of justice, having regard to the circumstances including,

(i) The apparent strength of the prosecutor’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 of imprisonment for a term of three years or more.

8The fact that the charge which the applicant faces has been downgraded from first degree murder to second degree murder has not shifted the onus on this application for bail. It is still the onus of the applicant to show, on a balance of probabilities, that detention is custody is not justified.

9In considering this renewal application for bail, I have not lost sight of the comments made by Justice Wagner of the Supreme Court of Canada in R. v. Antic, 2017 SCC 27 in paragraph 50 of that decision that,

Pre-trial detention is the exception rather than the rule. It is to be employed in limited circumstances and only when it is necessary to promote the proper functioning of the bail system.

COVID-19 and Material Change in Circumstance

10It is trite to say that the world has changed in an unprecedented and in a way that was not contemplated since the outbreak of the COVID-19 pandemic. Although the pandemic is relatively recent, there has been a plethora of jurisprudence as to how COVID-19 interplays with applications for judicial interim release from custody. In arriving at a decision, I have reviewed and considered this jurisprudence in detail. In conducting such a review, I conclude that the COVID-19 pandemic constitutes a material change in circumstances allowing for a fresh application for bail. There is ample jurisprudence to support that position, such as: R. v. Halovich, 2020 ONSC 2709; R. v. Seegobinsing, 2020 ONSC 2274; R. v. Cain, 2020 ONSC 2018; R. v. J.S., 2020 ONSC 1710; R. v. Budlakoti, 2020 O.J. No. 1352.

11As succinctly put by Justice Shaw at paragraph 53 in R. v. Seegobinsing,

I am satisfied that that risks faced to the global community by COVID-19, which are amplified in institutional settings, constitutes a material change in circumstances. As such, I do not have to find that the justice of the peace was in error, but can consider the bail hearing anew.

12Therefore, the applicant has met the threshold of establishing a material change of circumstance to allow his renewed application for bail to be considered by the court.

13COVID-19 has had the effect of establishing a material change in circumstances, but what is its role in considering the application for bail? I agree with the line of jurisprudence that indicates that it is a factor to be considered in balancing considerations set out in section 515(10)(c) of the Criminal Code, but it is not determinative of the issue leading to the automatic release of an applicant from custody.

14The court in R. v. Phuntsok, 2020 ONSC 2158 stated at paragraph 27, “I find that COVID-19 also constitutes a material change in circumstances. However, this does not result in an automatic release from custody.”

15The court in R. v. Cain, 2020 ONSC 2018, stated, in part, at paragraph 8 of its decision,

The existence of the COVID-19 virus is relevant, but not determinative as to whether an individual plan of bail meets the primary, secondary and tertiary criteria governing release. This particular plan of bail must be assessed to determine whether the secondary and tertiary ground concerns can be met. The threat the virus poses to those houses in the detention centre is one factor in balancing which is required.

COVID-19 and the Tertiary Ground

16The Ontario Court of Appeal has determined that the COVID-19 pandemic is a relevant consideration when it comes to assessing the public interest factor, in other words, the tertiary ground for detention. In R. v. Kazman, 2020 ONCA 251, Harvison Young, J.A., the court considered whether the accused’s detention was necessary in the public interest. The court held that the particular circumstances in the case before it justified the release of the accused on bail pending appeal. The accused’s health conditions and his age made him particularly vulnerable “to suffer complications and require hospitalization if he contracts COVID-19”. Justice Harvison Young concluded in paragraphs 19 and 20 of her reasons in R. v. Kazman that,

For these reasons, and in light of all these factors together, the applicant’s release for a limited period would not undermine a reasonable and informed person’s confidence in the administration of justice. I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue.

17In commenting on the aforementioned decision in R. v. Kazman, Justice Christie noted at paragraph 58 of R. v. Paramsothy, 2020 ONSC 2314,

It would appear that the Court of Appeal has determined the COVID-19 pandemic to be a relevant consideration when it comes to the public interest factor. If this is the case, the COVID-19 pandemic must be a relevant factor, minimally, in relation to tertiary grounds, when considering whether detention is necessary to maintain confidence in the administration of justice.

18There is other authority, which I accept, for the proposition that COVID-19 is a relevant factor to assess when determining whether detention in custody is necessary on the tertiary grounds as set out in section 515(10)(c) of the Criminal Code. (See: R. v. J.S., 2020 ONSC 1710; R. v. T.K., 2020 ONSC 1935; R. v. Cain, 2020 ONSC 2018; R. v. Rajan, 2020 ONSC 2118; R. v. C.J., 56/20; R. v. Halovich, 2020 ONSC 2709)

19Both the defence and the Crown have filed evidence with respect to the impact of COVID-19. The court accepts from the evidence adduced that Mr. Wright is a diabetic. The effects of COVID-19 may be more severe for Mr. Wright if he contracts the virus. As noted in Exhibit B to the affidavit of Brenda Evershed, affirmed on April 23, 2020, “COVID-19 can cause more severe symptoms and complications in some people living with diabetes.” There is no evidence before the court about the specific medical condition of Mr. Wright, that is, whether the type of diabetes he has and whether his current state of health make it more likely that he will contract COVID-19. What the court has before it is a generic statement applicable to “some” people living with diabetes but nothing about Mr. Wright specifically.

20The court also has general, generic statements from medical professionals, such as the open letter from medical professionals to the Canadian Federal, Provincial and Territorial Governments, attached as Exhibit C to the affidavit of Brenda Evershed. In that statement the following statements are made: “People in Canada’s prisons and jails are already medically vulnerable.” Specifically speaking about asthma, it is noted that people with asthma are at “risk of developing severe complications from COVID-19.” It is noted in this statement from medical professionals that, “The prison environment heightens the risk of transmission for both prisoners and staff. Conditions are crowded and prisoners lack the ability to practice social distancing. These conditions, combined with the health profile of prisoners, create the perfect storm for COVID-19 transmission, illness and death.” The medical professionals, in this open letter, go on to state that “We also call upon our government to release as many people as possible, using all available mechanisms to do so, and to ensure people leaving custody can access necessities, including housing, food, medications and health care in the community.”

21This statement from medical professionals state the obvious in many respects. Obviously, it will be harder to effect social distancing in a confined area, such as a penal institution. Obviously, individuals in that setting will have an elevated risk of contracting the virus, if adequate steps to combat this are not undertaken.

22Although the information in this open letter from medical professionals is to be considered by this court, it must be done cautiously. It is clear that this letter is advocating a position rather than the neutral attempt to assist the court which is the usual function of opinion evidence received by the court. I have considered the evidence set out in Exhibit C to the affidavit of Brenda Evershed, affirmed April 23, 2020, in assessing the tertiary ground of detention but have done so cautiously.

23Also tendered as evidence before the court is the affidavit of Dr. Aaron Orkin, who is a physician and specialist in public Health and Preventative Medicine in Toronto, Ontario. This evidence of Dr. Orkin was used originally in a detention review held in Cornwall, Ontario on April 6, 2020 and has been referred to in subsequent decisions of the court as it pertains to the impact of COVID-19 on both the secondary and tertiary grounds of detention. A useful summary of the evidence of Dr. Orkin is set out in paragraph 26 by Justice Kurke in his decision in R. v. Halovich, 2020 ONSC 2709. This is the same evidence before this court, and I adopt the summary of Dr. Orkin’s evidence as set out in Justice Kurke’s decision.

24Other portions of Dr. Orkin’s evidence that stands out to this court is as follows: Paragraph 21 of his affidavit, “Overcrowding and social distancing are mutually exclusive concepts. In other words, social distancing cannot be accomplished in conditions of overcrowding.” Paragraph 27 of his affidavit, “The degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently located in these facilities. This is a geometry problem, not a policy or strategic problem. There simply is not enough space to create the distance required between people in Ontario correctional facilities.” Paragraph 28 of his affidavit, “Insufficient social distancing in prisons is hazardous to the health of people experiencing imprisonment. This is true for everyone in correctional facilities, but particularly true for people with underlying health problems.”

25Although there are difficulties with the evidence of Dr. Orkin, the general nature of it and the way it is presented, I agree with the approach taken in the cases which suggest that Dr. Orkin’s evidence should not be excluded from consideration but that it is a matter of the weight to be given to it in the overall assessment of the tertiary ground of detention. I agree with the statement made by Allen J. at paragraph 93 in R. v. Osman, 2020 ONSC 2490, that

I do not accept Crown counsel’s position that the entirety of Dr. Orkin’s affidavit evidence should be excluded. Dr. Orkin’s curriculum vitae reveals that he is not devoid of experience and expertise with COVID-19 in the contexts of research, hospital practice and the investigation of the impact of the pandemic on vulnerable community populations. I do not think his entire evidence ought to be jettisoned. What the court accepts from his evidence is a matter of weight.

26I also accept the comments made by Justice Kurke in R. v. Halovich, 2020 ONSC 2709, where at paragraph 44 he states that,

The evidence of Dr. Orkin underscores the court’s obligation to consider the COVID-19 pandemic as a factor in determining whether an individual should be released from custody, but it does not supplant the due assessment of traditional bail considerations, as even Dr. Orkin acknowledges. He speaks in terms of the reduction of “unnecessary admissions.” In other words, the goal of reducing the prison population to reduce the spread of COVID-19 infection must not cause a court to lose sight of the protection of the public and the public’s confidence in the administration of justice that the interim release provisions are intended to foster. The determination requires a balancing of relevant factors.

27Balanced against the aforementioned evidence containing the generalities of the COVID-19 pandemic is the specific situation presently at the Sudbury District jail where the applicant, Robert Steven Wright, has been housed since December 11, 2018. The Crown filed the affidavit of Nathan Aubin sworn on April 24, 2020. Mr. Aubin is the Deputy Superintendent at the Sudbury jail. The evidence supplied by Mr Aubin is the same evidence that Mr. Justice Kurke had before him in deciding the case of R. v. Halovich. At paragraph 28 of his reasons in Halovich, Justice Kurke provides a useful summary of the salient points made by Mr Aubin in his affidavit. At paragraph 29 of his decision, Justice Kurke sets out a summary of the particular situation at the Sudbury District jail as set out in the affidavit of Nathan Aubin. Both these summaries are useful in the case at bar, and I adopt the summaries of the evidence of Mr. Aubin as set out in paragraphs 28 and 29 in R. v. Halovich.

28These summaries of Mr. Aubin’s evidence indicate that measures have been put in place at the Sudbury District jail, such as a screening process, personal protective equipment being worn by corrections staff at the jail, and health assessments of all inmates admitted to the facility to safeguard against the COVID-19 virus. To date, no positive test for COVID-19 has occurred at the Sudbury District jail.

29Although the COVID-19 virus is in play in assessing the tertiary ground under section 515(10)(c) of the Criminal Code, the evidence before me indicates that it is at play minimally in the case of the applicant. Although there is evidence that the applicant may have more difficulty if he contracts COVID-19 as a result of his diabetic condition, there is no evidence that he is more suspectable to contract the virus because of his medical condition, and no evidence that the applicant’s health is at risk while being detained at the Sudbury District jail. There is no evidence that there are cases of COVID-19 in the Sudbury District jail and no evidence of any failure on the part of correction staff at the Sudbury District jail to appropriately manage the health concerns created by the virus. As indicated by the court at paragraph 42 in R. v. J.L., 2020 ONSC 2144,

Indeed, although detained persons in custody may face some health concerns, the evidence before the court on this review demonstrates that COVID-19 infection in holding facilities is currently very limited. The Sudbury District jail is taking steps to implement the public policy of social and physical distancing, and to practice personal and facility cleanliness, insofar as possible, within the custodial setting.

30In order for the COVID-19 virus to be largely in place in the balancing and weighing of the factors to be considered on the tertiary ground, the applicant seeking judicial interim release must demonstrate why they are particularly vulnerable to contracting the virus. As noted by the court in R. v. Nelson, 2020 ONSC 1728, at paragraph 35,

It will be important that future applications proceed with the benefit of some rudimentary evidence that could suggest an accused is more susceptible to contract the virus due to underlying health issues.

31The court does not have this evidence in the case at bar. The comments made by Madam Justice Christie at paragraph 30 in R. v. Paramsothy, 2020 ONSC 2314 are equally applicable to the applicant Robert Steven Wright,

It would be speculative in this case to conclude that Mr. Paramsothy is more susceptible to being infected with COVID-19. While he does have some pre-existing medical conditions, there is nothing to suggest that those particular conditions made Mr. Paramsothy more vulnerable than any other member of society. Even if this court were to speculate about the susceptibility of Mr. Paramsothy, this is not determinative on the issue of bail (see R. v. Phuntsok, 2020 ONSC 2158). This is but one factor to consider.

Section 515(10)(c) Analysis

32In considering all factors previously in the initial bail application by Mr. Wright, this court concluded that he should remain detained in custody on the tertiary grounds. There is nothing new in the evidence which would cause the court to alter its analysis with respect to section 515(10)(c)(i), (ii), (iii), or (iv) of the Criminal Code. The fact that the charge against Mr. Wright has been reduced from first degree murder to second degree murder does not diminish the gravity of the offence or the potential that the accused faces a lengthy term of imprisonment, if convicted. The second and fourth factor of the four-part test continue to be met. The third factor, the circumstances surrounding the commission of the offences, exists as it was on the first bail application. The comments of this court at paragraph 46 in the reasons for decision on the first bail application remain as applicable now as they did then. Those comments by the court read as follows:

In the case before this court, the acts committed against Renee Sweeney were violent, heinous, and hateful. In fact, the acts were violent in the extreme as indicated in the autopsy report. Ms. Sweeney was stabbed numerous times, perhaps as many as 30. The nature of the stab wounds and their location indicate that the perpetrator must have been in a state of rage at the time the offence took place. Although Renee Sweeney was not a vulnerable person in the sense that she was not elderly or disabled, there was a vulnerability in the circumstances that she found herself in; being alone in the type of store that she was working in. Considering all the circumstances of this case, I am more than satisfied that the test set out in section 515(10)(c)(iii) has been met.

33With respect to the first factor in section 515(10)(c), namely the apparent strength of the Crown’s case, there has been no evidence offered in this bail hearing that would alter the conclusions reached by this court on the first bail hearing, as set out in paragraph 65 of my reasons as follows:

In assessing the first factor to be considered under section 515(10)(c)(i), namely, the apparent strength of the prosecutor’s case, my view is that the Crown has a very strong case bordering on the overwhelming given the nature of the scientific evidence that it has assembled against the accused.

34Overall, the results in weighing the four factors under section 515(10)(c) have not changed from the first bail hearing to the present time. For the reasons given in the previous paragraphs, although COVID-19 is a factor to be considered on the tertiary ground, its impact on the weighing of those factors is minimal in the case at bar given the evidence received by the court.

The Proposed Plan of Release

35The court has found a material change in circumstance due to the COVID-19 pandemic which allows a de novo review of the bail application brought by Mr. Wright. This being the case, the new proposed sureties and the plan of release now proposed by the applicant must be considered by the court in the overall assessment as to whether the detention of the accused is necessary to maintain confidence in the administration of justice.

36As in the original bail application, the applicant’s partner, Anna-Liisa Mottonen, is proposed as a surety. At the original hearing she proposed to pledge $130,000. Now she proposes to pledge $30,000. The new proposed plan of release would not have the applicant living with Ms. Mottonen in North Bay, Ontario, but rather in the home of his parents, Wendy Wright and Robert Wright Sr., at 2943 Hope Street, Val Caron, Ontario. Wendy Wright and Robert Wright Sr. offer themselves as sureties and pledge the sum of $100,000, without deposit. Both Wendy Wright and Robert Wright Sr. provided the court with affidavits in support of the plan of release as did Ms. Mottonen (Exhibit 1). In addition to the affidavit evidence filed, Wendy Wright provided viva voce evidence to the court on the bail application.

37Much like the first plan of release proposed, the new plan essentially restricts the liberty of Mr. Wright such as the right to leave his residence in the presence of one of his sureties which makes the plan of release less restrictive than a plan that requires the applicant to remain in his residence except for a limited number of hours each week to attend to appointments. In the new proposed plan, there are exceptions to him remaining in his residence. The terms of the exceptions to being in the Wright family residence could result in the applicant being able to travel to and from the Wright home in Val Caron to the Mottonen home in North Bay, provided he is in the presence of at least one of his sureties. If this was done for a limited time the requirement that he “reside” in the Wright home in Val Caron would not technically be offended. As with the previous plan of release, the new plan of release contemplates Robert Steven Wright to be subject to electronic monitoring with GPS tracking, through Recovery Science Corporation, a firm which provides that service with direct reporting to the police.

38It is fair to say that it is the new proposed sureties and change in residency that essentially constitutes the new plan of release for Mr. Wright. The court is aware that it must be cognizant that the new sureties proposed are not merely a re-shuffling of the deck. As put by Casey J. at paragraph 17 in R. v. Ferguson, [2002] O.J. No. 1969,

Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

As confirmed by Goodman J. in R. v. King, 2020 ONSC 1935, the principles enunciated in R. v. Ferguson remain good law in Ontario.

39In assessing the new proposed plan of release in balancing the relevant factors under the tertiary ground, I have considered not only the affidavit evidence of Anna-Liisa Mottonen, Wendy Wright and Robert Wright St., but also the viva voce evidence given by Wendy Wright at the hearing. Mrs. Wright is a mature person without a criminal record. She is now retired after holding very responsible professional positions in the field of nursing. It was the evidence of Wendy Wright that her son Steven’s medical needs are presently being met and that his health concerns are presently being taken care of at the Sudbury District jail. There is no doubt that Wendy Wright is a suitable surety in general, but this court has some concerns about her suitability as a surety for her son, Robert Steven Wright. In response to questions put to her in cross-examination by Crown counsel, Mrs. Wright’s answers to difficult questions put to her were evasive and deflective at times. Specific questions put to her about the teal jacket and the gardening glove were not answered directly but evasively with responses such as “it looked similar to something my husband owned”, or that the colour of the jacket “was a common colour back in the 90’s”. It was the evidence of Wendy Wright that the blood-soaked gardening gloves found near the scene of the crime were “a fairly common type of gardening glove”. These responses flies in the face of the forensic evidence marshalled by the prosecution to date. When asked by Crown counsel about the release plan and whether it was a “desperate desire” to get her son out of jail, Mrs. Wright’s reply was. “I would like to have him home, but I wouldn’t describe it as desperate”.

40Undoubtedly both Wendy Wright and Robert Wright Sr. love their son and wish to assist him. The evidence of Wendy Wright causes me to conclude that they will go to all ends to protect him, but I am not confident that they are able to make the hard calls and answer the tough questions if there were breaches of conditions of release and a report to the authorities had to be made.

41In his submissions to the court, Crown counsel, Mr. Parsons, suggested that it would cause members of society grave concern to release Mr. Wright into the same home as he resided in at the time of Renee Sweeney’s death and in the supervision of the same individuals he resided with at the time. This statement must be tempered against the presumption of innocence, which Steven Wright is afforded, which is a cornerstone of the criminal justice system of Canada and which must be respected and protected. The presumption of innocence can still be afforded to Mr. Wright while still considering this proposition advanced by the Crown. When the factors to be considered under the tertiary ground of detention under section 515(10)(c) are balanced and weighed, given the seriousness of the crime that Mr. Wright faces, the circumstances surrounding the commission of the offence and the strength of the Crown’s case based on the evidence the court is aware of at the present time, this court is left with the inescapable conclusion that the continued detention of Robert Steven Wright in custody is necessary to maintain confidence in the administration of justice.

42The comments made by Chief Justice Beverley McLachlin of the Supreme Court of Canada in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 at paragraph 40 are equally applicable to the case at bar,

Where, as here, the crime is horrific, inexplicable and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.

43Accordingly, the renewed application dated April 6, 2020 by Robert Steven Wright for interim judicial release is dismissed and he is detained in custody on the tertiary ground.

Gareau J.